Public Prosecutor v Ng Siew Wai Carole

• Jurisdiction: Singapore
• Judge: Marvin Bay
• Judgment Date: 28 July 2021
• Neutral Citation: [2021] SGDC 148
• Court: District Court (Singapore)
• Docket Number: District Arrest Case No DAC 906766 of 2018 & Ors, Magistrate’s Appeals No MA-9026-2021-01
• Year: 2021
• Published date: 07 August 2021
• Hearing Date: 14 August 2019,17 February 2020,31 March 2020,01 July 2018,24 October 2019,11 January 2019,26 January 2021,15 August 2019,10 January 2019,30 July 2020
• Plaintiff Counsel: Chong Yonghui (Attorney-General's Chambers)
• Defendant Counsel: Peter Fernando (Leo Fernando LLC)
• Subject Matter: Criminal Law,Statutory Offences,Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act- "Love scam" fraud,Criminal Procedure and Sentencing,Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act- Application of framework for harm and culpability
• Citation: [2021] SGDC 148

District Judge Marvin Bay: INTRODUCTION

This case concerns a set of proceedings brought by the State against the accused; Ms Ng Siew Wai Carol (“Ms Ng”), a Singaporean, aged 57 under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A, Rev Ed 2000) (“CDSA”). These included two proceeded charges in connection with her dealings with one “Harvey Hardman” (“Harvey”) in late 2015, where she had opened accounts in two banks despite having, what the prosecution contends to be, reasonable grounds for belief that the eponymous Harvey was engaged in criminal conduct. Another brace of charges involved her assistance of the said Harvey in receiving deposits placed in another bank account, again despite having what the prosecution regarded as reasonable ground to believe that these monies were his benefits of criminal conduct.

Assistance of the principal “Harvey” despite earlier allegations of fraud against the same person

The accused’s principal contention was that she had been ignorant of Harvey’s criminal intent, or that Harvey had been a scam artist. This was set against a factual matrix riddled with undisputed facts which were plainly adverse to Ms Ng’s case. These include Mdm Ng having previously (in 2013) already been the victim of a scam, albeit by an individual (or possibly a group) using a different moniker (“Andy Clayton”)¹. Additionally, Ms Ng had in the course of her dealings with Harvey, had actually filed a police report against Harvey himself and another person in April 2014 (which was before the date of the alleged offences in the proceeded charges) alleging that she had been the victim of a parcel scam.²

In seized messages, which were also undisputed. Ms Ng had in a message on 17 March 2014, berated Harvey for making her go deeper into debt if “all these are frauds”.³Ms Ng had followed this with a message to Harvey on 13 April 2014, where she had ruefully opined “Maybe this is after all a scam” and accusing Harvey (who had apparently ignored her calls for several days) of having possessed “the intention to cheat me from day one”.⁴ Ms Ng had then gone on the next day (14 April 2014) to pen an email where she expressed conviction that she was “convinced this is a fraud and scam.”, demanded an explanation as to “Why do you have to do this to me”, lamenting that “Because of all this, I’m now penniless and heavily in debt.” Ms Ng had also warned darkly for Harvey to “Remember someone is watching you above and there will be retribution”.⁵ Ms Ng’s explanation for this series of seemingly histrionic outbursts was that Harvey had continued to ignore her. Despite the above, Ms Ng had assisted Harvey in opening several bank accounts and collecting the deposits from another bank account a year-and-a-half later in October 2015 (being the subject matter of the first section 44 CDSA charge) and 12 November to 18 December 2015 (in connection with the second section 44 CDSA charge). Most perplexing of all would be Ms Ng commission of her latest offence using another account after the earlier accounts that she had purposely opened for Harvey had been frozen. Ms Ng’s response was essentially that “Harvey told me it (the monies in the account) was ‘clean’ and legalised” and “I literally took it at face value”.⁶

THE CHARGES AND THE LAW

Ms Ng claimed trial to four distinct charges. These comprised two charges under section 44 (1)(a) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A, Rev Ed 2000) (“CDSA”); and two charges under section 47(3) CDSA.

Ms Ng is charged under section 44(1)(a) CDSA which creates an offence for: 44.— (1) …(A)ny person who enters into or is otherwise concerned in an arrangement, knowing or having reasonable grounds to believe that, by the arrangement — (a) the retention or control by or on behalf of another (referred to in this section as that other person) of that other person’s benefits of criminal conduct is facilitated (whether by concealment, removal from jurisdiction, transfer to nominees or otherwise); 44-(5) …shall be liable on conviction — (a) if the person is an individual, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding 10 years or to both…

The section 44(1)(a) CDSA charges

The first two charges under section 44, CDSA involved Ms Ng being concerned in an arrangement Harvey to allow him to use bank accounts with UOB and HSBC which Ms Ng had specially opened, despite having reasonable grounds to believe that Harvey was engaged in criminal conduct, and that this arrangement enabled Harvey to assume the benefits of criminal conduct. The first⁷ of these two charges states:

(Ms Ng is) charged that (she), on or about 16 October 2015, in Singapore, (was) concerned in an arrangement with one “Harvey”, to wit, by agreeing to let (her) HSBC Savings A/C (number ending 0) be used to receive a total sum of $ 27,600⁸ from Harvey, having reasonable grounds to believe that the said Harvey was engaged in criminal conduct, and having reasonable grounds to believe that by the said arrangement, the control of Harvey’s benefits of criminal conduct is facilitated, (she had) thereby committed an offence under section 44(1)(a) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A, Rev Ed 2000) (“CDSA”) punishable under section 44(5)(a) of the said Act. [Emphasis added]

The other charge under section 44 (1)(a) CDSA is broadly similar, save for differing particulars as to date and time, and amount involved. That charge⁹ spans a period between 12 November 2015 to 18 December 2015, where Ms Ng had arranged to allow Harvey to use a UOB savings account (number ending 5) where a sum of $72 050 had been received for Harvey’s benefit, despite her possessing reasonable grounds to believe that he had been engaged in criminal conduct, and that she was thereby an accessory to the facilitation of the ill-gotten monies to Harvey’s control.

The section 47(3) CDSA charges

Section 47(3) and 47(6)(a) of the CDSA provide that: 47(3) Any person who, knowing or having reasonable grounds to believe that any property is, or in whole or in part, directly or indirectly, represents, another person’s benefits from criminal conduct, acquires that property, or has possession of or uses such property, shall be guilty of an offence. 47(6) Any person who commits an offence under this section shall be liable on conviction — (a) if the person is an individual, to a fine not exceeding $500,000 or to imprisonment for a term not exceeding 10 years or to both

The latter set of charges involve two instances of Ms Ng assisting Harvey receive proceeds placed in Ms Ng’s DBS/POSB account. The third charge¹⁰, which is under section 44(1)(a) of the CDSA, alleged the offence to have been committed on or about 6 November 2015, where Ms Ng had used a POSB savings account (number ending 1) to receive a total sum of $10 000 from the said Harvey.

The fourth charge under section 47(3) of the said Act, is in relation to an act committed a day later, and states:

(Ms Ng is) charged that (she), on or about 7 November 2015, in Singapore, did acquire property which you had reasonable grounds to believe, in whole directly represented one Harvey’s benefits from criminal conduct, to wit, by using (her) POSB Savings A/C (ending 1)to receive a total sum of $4,000 from Harvey, (she had) thereby committed an offence under section 47(3) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65A, Rev Ed 2000) (“CDSA”) punishable under section 47(6)(a) of the said Act.

AGREED STATEMENT OF FACTS Stipulation as to certain facts

The proceedings have been considerably simplified by parties’ agreement to tender an Agreed Statement of Facts¹¹. This document has had a salutary effect in showing which areas were not in contention, and this allowing a more directed focus on the genuine areas of dispute between the respective cases for prosecution and defence. The Statement stipulates the following account to be mutually agreed: 1 The accused is Ng Siew Wai Carole (Carole), a 54-year-old female Singapore citizen. 2 Sometime in or around 2012 to 2013, Carole first got to know one “Harvey” through an online social networking website. In March 2014 Carol filed a police report alleging she had been scammed (The police report is attached¹²). 3 In May 2015 and July 2014, at Harvey’s request , Carole agreed to open the following bank accounts for Harvey: (a) OCBC Bank Account (number ending 1) (b) HSBC Bank Account (number ending 0) 4 Carole handed control of both the OCBC and HSBC Account to Harvey by mailing him the ATM cards of both accounts and providing him with the relevant PIN numbers. 5 On 6 October 2015, Investigation Officer Liew Yao Hui (“IO Liew”) from the Singapore Police Force ( Jurong Division) interviewed Carole and a statement was recorded from her about transactions which had occurred in the OCBC account which she had opened for Harvey, Carole also informed that her OCBC Account had been frozen. (The recorded statement is attached”.¹³

Facts leading to the 1st charge

6 After her interview with IO Liew , Carole continued to allow Harvey to use the HSBC Account which she had opened for him. On 16 October 2015, a transfer of $ 27,600 into the HSBC bank account was made by one Cynthia Yung Sook Yin (“Cynthia”). (The bank statement showing the relevant transaction into the HSBC Account is attached)¹⁴

Facts leading to the 2nd charge

7 In November 2015, at Harvey’s request, Carole agreed to and did open a UOB bank account (number ending 5) for Harvey. Carole handed control of the UOB account to Harvey. The accused also continued to allow Harvey to use the HSBC by mailing him the ATM card to the account and providing him with...