Public Prosecutor v Ng Ai Tiong

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 03 January 2000
• Neutral Citation: [2000] SGHC 1
• Date: 03 January 2000
• Subject Matter: Appeal,Inchoate offence,Criminal Law,Whether person abetted need to have same knowledge as abettor,Whether instigation proved,Criminal Procedure and Sentencing,Abetment by instigation,Applicable principles,Person abetted does not commit act abetted,Abetment,Element of "instigation",Instigation to give false evidence in civil suit,Appellate court overturning findings of fact by trial court,s 108 Penal Code (Cap 224)
• Docket Number: Magistrate's Appeal No 113 of 1999
• Published date: 19 September 2003
• Defendant Counsel: S Magintharan and Y Suriamoorthy (Netto Tan & S Magin)
• Court: High Court (Singapore)
• Plaintiff Counsel: Mohammad Nizam bin Ismail and Eugene Teo (Deputy Public Prosecutor)

: This was an appeal by the prosecution against the acquittal of the respondent, who was charged with the offence of abetting one Ong Soon Chye, by instigating him to commit an offence of giving false evidence in a stage of a judicial proceeding. After hearing counsel from both sides, I allowed the appeal and convicted the respondent. I now give my reasons.

The charge

The respondent, Ng Ai Tiong (`Ng`), who was also known as Francis Ng, had claimed trial to the following charge:

DAC 28311/98

You, Ng Ai Tiong, m/49 years, NRIC No 10706049/F are charged that you, on or about 24 March 1997, at Plaza Hotel Singapore, did abet one Ong Soon Chye (bearer of NRIC No 0050101/H) by instigating Ong Soon Chye to commit an offence of giving false evidence in a stage of judicial proceeding, to wit, you instigated Ong Soon Chye to agree to state that he had taken a loan from one Yong Pin Khing Jeremy (`Jeremy Yong`) (bearer of NRIC No S 0409692/D), which statement and circumstance you knew to be false, and which false statement and false circumstance was intended by yourself to be used in the course of your defence in a judicial proceeding, namely, MC Suit No 10427 of 1997, which offence was not committed as a result of your abetment, and you have thereby committed an offence punishable under s 116 read with s 193 of the Penal Code (Cap 224).

I noted the trial judge`s observation that the date of the meeting between the respondent and Ong Soon Chye at Plaza Hotel was erroneously stated in the charge as 24 March 1997 when the intended date was 24 March 1998. The error did not, however, cause any confusion or prejudice to either the prosecution or the respondent as the actual date of the meeting was clear to all parties concerned and there was no dispute over this fact. As such, there was no necessity for the court to exercise its powers to make any amendment to the charge.

The facts

Before going into the facts proper, a summary of the background of the relationship between the relevant parties involved would be useful here. There were three main parties concerned with the proceedings, Ng, Jeremy Yong Pin Khing (`Yong`) and Ong Soon Chye (`Roger Ong`). They were all businessmen who were acquainted with each other and were friends. It was undisputed that Yong and Roger Ong were closer friends with each other than either were with Ng. All three of them were customers of Club 5, a lounge located at the ground floor of Plaza Hotel, which they would patronise from time to time.

The $25,000 loan and the civil suit

On 5 February 1997, Ng, who was the managing director of Transcity Cargo System Pte Ltd, borrowed a sum of $25,000 from Yong. The purpose of the loan and the actual amount received by Ng were matters disputed by the parties. According to Yong, Ng had told him that he needed a loan to pay for the release of Ng`s German client`s cargo which had been detained by the Johor customs for under-declaration. The loan was an interest-free loan which was meant to be repaid within a few days. Ng, on the other hand, alleged that the money was for his company`s project in Terminal One of the Changi Airport and an interest of $1,500 was charged on the loan, with repayment of the sum borrowed to be made within three months. The parties were, however, able to agree that the loan was advanced in cash and that Ng had given Yong a collateral in the form of a cash cheque, dated 5 February 1997, of the amount $25,000.

Ng subsequently failed to repay the loan despite repeated demands by Yong to do so. The cash cheque given by Ng was also dishonoured when it was presented. On 2 June 1997, Yong brought civil proceedings, MC Suit 10427/97 (`the civil suit`), against Ng to recover the amount owed. In the course of the proceedings, Yong applied for summary judgment and an affidavit was filed in support of it. In the affidavit filed in response, Ng raised the defence that Yong was an illegal moneylender. It was alleged by Ng in this affidavit, that Yong `had previously over a few drinks mentioned to me that [Yong] had lent money to various people, one of whom I knew`. Yong then filed a further affidavit in reply, in which he denied all of the allegations relating to him being involved in illegal moneylending.

Sometime in October 1997, Yong met up with Roger Ong at the Asia Hotel. During this meeting, Yong mentioned to Roger Ong the problems he was having with Ng and that he was going to sue Ng for failing to repay the money that Yong had lent him. On 5 February 1998, interrogatories were served on Yong by Ng`s solicitors, which included the following questions:

2 Have you given loans to other people?

3 If yes,

(a) What are the particulars of these people?

(b) Was interest charged?

4 Did you get (sic) a loan to one Roger Ong?

5 If yes,

(a) give particulars of the loan;

(b) was interest charged.

On 11 March 1998, Ng affirmed his affidavit of evidence in chief for the civil suit in which he deposed, inter alia, that:

5 On 4 February 1997 when I was facing some financial problems I decided to approach [Yong] for a loan. Previously [Yong] had told me that he had lent money to various people. One of them was someone I knew called Roger Ong, a regular patron of Club 5. [Yong] had told me that he had a lot of shares in listed companies especially Plaza Hotel and lots of spare cash to invest ... [Emphasis mine.]

This affidavit was filed only later on 30 March 1998 and served on Yong`s solicitors on 31 March 1998.

The alleged abetment by Ng

On the evening of 24 March 1998, there was a brief encounter between Ng and Roger Ong which started in a toilet next to Club 5 and continued into the corridor outside which led to the club. It was the statements made and questions asked by Ng in the conversation that took place during this occasion that led to the present charge being brought against him. Slightly different versions of what exactly took place were proferred by Roger Ong and Ng. The general gist of Roger Ong`s account was that Ng had asked him whether Yong had lent him (Roger) money with interest, that Ng mentioned that Yong had told Ng about the loan to Roger and that Roger need not worry about admitting to taking such a loan. It was Roger Ong`s evidence that Ng persisted in asking him to say yes to his question despite the fact that Roger Ong had clearly replied in the negative. Roger Ong said that he was under the impression that Ng needed him to say that he had taken a loan from Yong. Roger Ong also said that Ng mentioned that Yong was suing him. On Ng`s part, he did not deny that he asked Roger Ong whether Yong had lent Roger Ong money and that he repeated this question. Ng also admitted that he said that Yong had mentioned to him about the loan to Roger Ong. Ng further remarked that he had borrowed money from Yong and that Yong was after him. Ng, however, disagreed that he insisted on Roger Ong giving him a positive reply to his question. Ng`s explanation was that he repeated the question so that Roger Ong could understand it and Roger Ong had replied that he would talk to Yong for Ng. Ng denied that he volunteered information to Roger Ong about the civil suit and that when he said that Yong was `after him`, what he meant were the demands that Yong had made on the telephone to Ng for the repayment of the loan, and this was not intended as a reference to the civil suit.

Soon after the incident, on 27 March 1998, Roger Ong telephoned Yong on his handphone to inform him that he had met Ng outside Club 5. Yong had immediately replied that he needed to meet Roger Ong and show him some documents. This was a short telephone conversation as Yong was in China at that time. Yong and Roger Ong met up a couple of days later on the morning of 30 March 1998 at Yong`s office. Yong said he took out the documents relating to the civil suit and showed them to Roger Ong. Roger Ong recalled that he was shown selected parts of the affidavit affirmed by Ng on 21 August 1997 and the interrogatories where his name appeared. Roger Ong was concerned that he would become involved in the civil suit between Ng and Yong and he was shocked and angry at the way Ng had made use of his name. Roger Ong was also frightened and worried for himself and his family as he feared that loan sharks may be involved and he was afraid that Ng may use his name in other cases where Ng had also borrowed money. Roger Ong thus decided to file a police report as he wanted to clear his name and dissociate himself from Yong and Ng on this matter. Roger Ong then went to the nearby Jalan Besar Neighbouhood Police Post and made a police report at about 10am on the same day. The police report made was in the following terms:

On 24/3/98 at 2130 hrs at Plaza Hotel, I met (1) Francis Ng.

Which he mention that whether Jeremy Yong Pin Khing has lend me money with interest.

Which I told him `No such thing`.

But he force me to say yes and do not worry.

Which I do not understand his intention.

On the 27/3/98 I called my friend Mr Yong (2) on his handphone and told him what happen the night I met Francis Ng, and Mr Yong suggested we meet on 30/3/98 to show me document regarding his civil case against Mr Ng.

I am shock to see my name used by Mr Ng in his defence, without my knowledge.

I will further take civil action against Mr Ng for wrongfully using my name for his cheating of my friend money.

The particulars of persons included:

(1) Francis Ng Ai Tiong I/C 1076049/F

(2) Yong Pin Khing, Jeremy I/C 0409692/D

That`s all

After Roger Ong made the police report, he went with Yong to see Yong`s lawyer. Roger Ong spoke to Yong`s lawyer and sought advice on how he should deal with this matter. Roger Ong was advised by the lawyer to make an affidavit of evidence in chief which he affirmed the next day on 31 March 1998. He was,...