Public Prosecutor v Muhammad Azizul Ahmad Shalim

• Jurisdiction: Singapore
• Judge: Shawn Ho
• Judgment Date: 29 March 2017
• Neutral Citation: [2017] SGDC 97
• Court: District Court (Singapore)
• Hearing Date: 09 March 2017,06 March 2017,07 March 2017,10 March 2017
• Docket Number: DAC 933507-9 of 2016, MA 9078-2017-01
• Plaintiff Counsel: Deputy Public Prosecutor Charis Low Jia Ying
• Defendant Counsel: Mr Dhanwant Singh (S K Kumar Law Practice LLP)
• Published date: 21 September 2017

District Judge Shawn Ho: INTRODUCTION

Presiding over the salary-related disputes of employees, the Labour Court is helmed by the Asst. Commissioner for Labour (‘Commissioner’). The Commissioner’s order is appealable to the High Court of Singapore.¹

The Labour Court will become the Employment Claims Tribunal of the State Courts of Singapore.²

(Second reading of the Employment Claims Bill, Singapore Parliamentary Debates, Official Report (16 August 2016) vol. 94 at sitting no. 23)

In the present case, in the Labour Court on 11 January 2016, the Accused furnished documents to his employee, Mr Hossen MD Saruar. After receiving them, Mr Hossen informed the Commissioner that 3 of these documents were forged. The Commissioner told him to lodge a police report. This was done the next day.

The Accused was charged with 3 counts of fraudulently using as genuine forged documents – reproduction copies of salary payment vouchers for May and June 2015 and a pay slip for September 2015 – purportedly signed by Mr Hossen, which the Accused had reason to believe to be forged.³ He claimed trial.

My judgement is based on the following analytical framework:⁴ Issue 1: Are the 3 documents forged? Issue 2: Did the Accused fraudulently use them as genuine documents? Issue 3: Did he have reason to believe that these documents are forged?

After the trial, Issues 1 to 3 were answered ‘Yes’. Accordingly, I convicted the Accused of 3 charges under section 471 read with section 465 of the Penal Code (Cap 224, Rev Ed 2008).

The sentencing submissions pulled in different directions. The Defence asked for fines, while the Prosecution sought a total sentence of 8 weeks’ imprisonment.

In the final analysis, I sentenced the Accused to 10 weeks’ imprisonment.⁵ The Defence has appealed against the conviction and sentence. The Accused is on bail pending appeal, and his imprisonment sentence has been stayed.

These are the reasons for my decision.

ANALYTICAL FRAMEWORK Issue 1: Are the 3 documents forged?

In my judgment, ‘Yes’. My reasons are as follows.

First, the unchallenged expert evidence of the Health Sciences Authority analyst, Ms Nellie Cheng, was that the signatures on the 3 documents were forged.⁶⁷ The Defence did not challenge the HSA report,⁸ nor did it adduce contrary expert evidence.⁹

Accordingly, full weight was given to the HSA report’s conclusions that the 3 documents were forged, viz. the reproduction copies of salary payment vouchers for May and June 2015¹⁰ and a pay slip for September 2015.¹¹

In addition, Mr Hossen testified that he had never signed the 3 documents.¹²¹³ Mr Hossen only signed the documents for 2014 and the first 4 months¹⁴ of 2015.¹⁵ His testimony was objectively corroborated by the HSA report.

In the premises, the Defence rightly conceded that the 3 documents were forged.¹⁶

Issue 2: Did the Accused fraudulently use them as genuine documents?

The Defence also conceded that the Accused had used the 3 documents.¹⁷

The Accused had furnished these documents to Mr Hossen on 11 January 2016 in the Labour Court in the Commissioner’s presence.¹⁸¹⁹ Although both parties had yet to take the stand,²⁰²¹ the Accused had used the documents to support his claim for his own benefit.²²²³

Under section 471 of the Penal Code, ‘(i)f a person puts forward a document as supporting his claim in any matter, whether that document is acted upon by the Court or used in evidence, is immaterial for the purpose of constituting use of the document by the party’: Ratanlal and Dhirajlal, The Indian Penal Code (34th Edition, 2014, LexisNexis) at page 1132.²⁴²⁵

The issue is whether the Accused knew, at the time he used those documents, that they were a fraud, but that he nevertheless used them as genuine documents: Gunasegeran s/o Pavadaisamy v Public Prosecutor [1997] 2 SLR(R) 946 at [59].

In my judgement, ‘Yes’. My reasons are as follows.

First, the Accused knew that Mr Hossen did not sign the 3 documents.²⁶²⁷ This is evidenced by the Accused’s own police report lodged on 21 October 2015.²⁸ He did not resile from this position or make any clarification in his police statement on 16 February 2016 (answers 7 and 9).²⁹

In court, the Accused admitted knowing that he needed to withdraw the police report dated 21 October 2015 – after he found the 3 documents – but he failed to do so because he was ‘busy’.³⁰

When asked why he did not simply withdraw the police report when he was at the police station on 16 February 2016, the Accused claimed that the police officer did not show him the police report.³¹³² I did not accept this claim as Assistant Superintendent of Police Lim Wei Teck’s unchallenged testimony was that he had shown the Accused the police report.³³³⁴

Furthermore, the Accused could easily have brought up the police report without being shown it. In any event, the Accused was in fact explicitly asked about this police report during the interview on 16 February 2016.³⁵³⁶ Yet, he did not withdraw the police report.

The Accused also did not testify that he saw Mr Hossen sign the 3 documents. According to the Accused’s statement, he would always be present whenever his employees sign the salary vouchers³⁷.³⁸

Second, the Accused claimed during the trial that the 3 photocopied documents were found in Mr Hossen’s personal file.³⁹ However, this was inconsistent with the Accused’s own statement to the police on 12 February 2016, where he stated twice that his workers do not get copies of their salary invoices (which is borne out by Mr Hossen’s testimony⁴⁰):⁴¹

‘My workers … are not given any receipts of the salary receipts … They will sign on the payment vouchers however they are not given any copies of the vouchers’.⁴² (emphasis added)

This statement had been admitted after an ancillary hearing (see below at [43] to [58]). The Accused alleged that his answers had not been recorded accurately by Senior Staff Sergeant Vicneswaran s/o Rama Krishnan and that his workers do get copies of their invoices. The Accused claimed that he had signed the statement without amending it as he had not read it properly due to nervousness.

I am unable to accept the Accused’s contention. He had been ‘very relaxed’ during the statement-recording,⁴³ and he had also been read back his Long Statement. Furthermore, SSSgt Vicneswaran testified that the Accused was afforded another opportunity on 16 February 2016 to clarify or amend his statement recorded on 12 February 2016, but he chose not to do so.⁴⁴ SSSgt Vicneswaran’s unchallenged testimony⁴⁵ in this regard was corroborated by ASP Lim Wei Teck.⁴⁶

The fact that Mr Hossen did not receive copies of his salary invoices finds expression in him tendering 4 pictures of payment vouchers⁴⁷ (which he had taken with his mobile phone) rather than photocopies of payment vouchers at the Ministry of Manpower, as evidenced by the Commissioner’s testimony.⁴⁸⁴⁹

Taken as a whole, the Accused had fraudulently used the 3 documents as genuine documents.

Issue 3: Did he have reason to believe that these documents are forged?

The first port of call is section 26 of the Penal Code (Cap 224, Rev Ed 2008) which states that “A person is said to have ‘reason to believe’ a thing, if he has sufficient cause to believe that thing, but not otherwise.” (See also Stanley Yeo, Neil Morgan, and Chan Wing Cheong, Criminal Law in Malaysia and Singapore (LexisNexis, 2nd Edition, 2012) at [4.23])

The threshold of ‘reason to believe’ was laid down by the High Court in Koh Hak Boon v Public Prosecutor [1993] 2 SLR(R) 733 at [12]-[13]:⁵⁰⁵¹

It is apparent from the cases that ‘reason to believe’ involves a lesser degree of conviction than certainty and a higher one than speculation… the court must assume the position of the actual individual involved (ie including his knowledge and experience), but must reason (ie infer from the facts known to such individual) from that position like an objective reasonable man. (emphasis in original)

I am of the view that the Accused had reason to believe that the 3 documents are forged. My reasons are found below.

The Accused claimed that the signatures on the 3 documents appear similar to Mr Hossen’s signatures, and there was no reason to think that these documents were forged.⁵²⁵³

However, knowing that Mr Hossen had not signed the 3 documents,⁵⁴⁵⁵ a person in the Accused’s position would find it suspicious that these documents suddenly appeared in Mr Hossen’s personal file kept in the Accused’s office (as claimed by the Accused) for the following reasons:⁵⁶⁵⁷ The Accused did not see Mr Hossen sign the documents.⁵⁸ According to the Accused’s own statement, he would always be present whenever his employees sign the salary vouchers⁵⁹.⁶⁰ Despite this, signed copies subsequently appeared in Mr Hossen’s file when the original invoices are unsigned (and cannot be found).⁶¹ After Mr Hossen had left his employ and fallen out with the Accused over unpaid salary of $24,700⁶² – and after Mr Hossen had complained about the Accused to the Ministry of Manpower and lodged a police report against him⁶³ – the Defence would have the court believe that Mr Hossen then signed 3 documents and somehow placed them inside a file in the Accused’s office, thereby undermining Mr Hossen’s own claims in the Labour Court for his unpaid salary.⁶⁴

The Accused claimed that Mr Hossen has a key to the Accused’s office, where Mr Hossen kept and maintained his own personal file.⁶⁵

The Accused’s claim does not stand. Mr Hossen testified that he neither kept a personal file nor possessed the key to the Accused’s office.⁶⁶ Mr Hossen also stated that he was merely a supply worker carrying out air-conditioner ducting works who received a monthly salary of about $985 to $1,250.⁶⁷⁶⁸

Mr Hossen’s unshaken testimony was that he only went to the Accused’s office on 2 occasions:⁶⁹ in January 2014 to sign the 2014 vouchers,...