Public Prosecutor v Niyas Babu Thuruthiyil Abdulkhader and another

• Jurisdiction: Singapore
• Judge: Soh Tze Bian
• Judgment Date: 14 June 2013
• Neutral Citation: [2013] SGDC 158
• Court: District Court (Singapore)
• Docket Number: DAC 31708/2011 & DAC 31710/2011, Magistrate’s Appeal No. 124/2013/01 & 124/2013/02 & 125/2013/01 & 125/2013/02
• Published date: 28 June 2013
• Year: 2013
• Hearing Date: 13 August 2012,17 November 2012,26 April 2012,25 March 2013,07 March 2013,04 March 2013,16 August 2012,07 May 2012,23 April 2012,17 August 2012,14 August 2012,21 August 2012,06 June 2013
• Plaintiff Counsel: Deputy Public Prosecutors, Sandy Dawn Baggett, Serene Chew and Kelvin Kow
• Defendant Counsel: Mr Hamidul Haq (DC1) & Yusfiyanto Bin Yatiman (Rajah & Tann LLP),Mr Edmond Pereira (Edmond Pereira & Partners) (DC2)
• Citation: [2013] SGDC 158

District Judge Soh Tze Bian:Charge

The 2 accused persons, Niyas Babu Thuruthiyil Abdulkhader (B1), male/34 years old, a Singapore citizen and Ajith Murali (B2), male/34 yrs old, an Indian national and a Singapore permanent resident, had each claimed trial to the following respective charge :In DAC31708/2011, B1 was charged that he, on 16 May 2011, in Singapore, did cheat OCBC bank, to wit, by submitting a tax invoice to OCBC Bank, stating the purchase of 23,000 quantity of "Green Mud Crabs XXL" at unit price of SGD 28.00, totalling SGD 644,000, by ”AI Shamali Group", which invoice he knew was false, which deceived OCBC bank into believing that an incoming fund transfer of USD500,000 into OCBC account XXX, in the name of Delta Foods, was payment for the said purchase, and by such manner of deception, dishonestly induced OCBC to deliver SGD 621,458.93 into the said OCBC account, and he has thereby committed an offence punishable under section 420 of the Penal Code (Cap 224, 2008 Rev Ed) with imprisonment for a term which may extend to 10 years, and he shall also be liable to fine.In DAC31710/2011, B2 was charged that he, on 16 May 2011, in Singapore, did abet by intentionally aiding B1 to cheat OCBC bank, to wit, by providing B1 with a purchase order from "Al Shamali Group" for the purchase of 23,000 quantity of "Green Mud Crabs XXL" at unit price of SGD 28.00, totalling to SGD 644,000, which purchase order he knew was false, and in furtherance of his abetment, B1 had submitted a false tax invoice to OCBC Bank reflecting the contents of the said false purchase order, which deceived OCBC bank into believing that an incoming fund transfer of USD500,000 into OCBC account XXX, in the name of Delta Foods, was payment for the said purchase, and by such manner of deception, dishonestly induced OCBC to deliver SGD 621,458.93 into the said OCBC account, and he has thereby committed an offence punishable under section 420 read with section 109 of the Penal Code (Cap 224, 2008 Rev Ed) with imprisonment for a term which may extend to 10 years, and he shall also be liable to fine.

The trial took place over a period of 16 days between April 2012 to March 2013. Having considered the written submissions and replies of the parties (which they had been directed by the Court on 25 March 2013 to file by 17 May 2013 (which was later extended to 27 May 2013 for DC2 at his request) and 31 May 2013 respectively) together with the evidence that had been adduced during the trial, which was duly recorded by the digital audio recording and transcription (DART) system, I was satisfied that the prosecution had established its case beyond reasonable doubt against B1 and B2 at the close of the trial and I convicted B1 and B2 of the charge preferred respectively against each of them on 6 June 2013. My reasons are set out below.

Prosecution witnesses

The prosecution called 8 witnesses to the stand and they were as follows:

Name	Address	Role	Court Marking
Lim Keng Poh Alan	c/o CAD	Investigation officer (IO)	PW1
Mohammad Hussain Ali Mohammad Al Shamali	c/o Dubai, United Arab Emirates	Owner of Al Shamali Group and account from which the money was transferred fraudulently	PW2
Soloman Veramani	c/o CAD	Head of CAD Proceeds of Crime Unit supervising this case	PW3
Cheryl Lim Yan Fen	c/o CAD	assisted PW1 to record B2’s statements on 29 June 2011 and 30 June 2011	PW4
Nizam Bin Zaini	c/o CAD	assisted PW1 in the investigation of this case and recorded B1’s statement	PW5
Yeo Bing Ting, Alicia	c/o OCBC	OCBC representative on fund transfer process	PW6
Ong Guat Mei, Aveline	c/o OCBC	OCBC employee who received the fraudulent document	PW7
Christie Chu	c/o OCBC	OCBC representative on SOP for fund transfer requests	PW8

Trial within a trial (voir dire)

During the examination in chief (EIC) of PW1 when the prosecution tendered B2’s statement of 25 July 2011 recorded by PW1 in P4i and B2’s statement of 3 July 2011 recorded by PW1 in P5i, the defence counsel for B2 challenged the admissibility of these 2 statements on the ground that these statements were not taken voluntarily. A trial within a trial was held to determine whether these statements in P4i and P5i were given by B2 voluntarily where the prosecution had 4 witnesses, namely, Alan Lim Keng Poh (PW1); Soloman Veramani (PW3); Cheryl Lim Yan Fen (PW4) and Nizam Bin Zaini (PW5) and the defence had 2 witnesses, namely, B2 and his wife, Divya Radhakrishnan (B2-DW2).

After assessing all the evidence adduced by both parties at the trial within a trial and considering their respective written submissions, I was of the opinion that B2’s allegations of inducement, threat, promise and/or oppression were totally unfounded and were either fabrications or afterthoughts by B2. I was satisfied beyond a reasonable doubt that the 2 statements in P4i and P51 were recorded voluntarily without any inducement, threat, promise and/or oppression. Therefore, I allowed these 2 statements in P4i and P51 to be admitted as part of the prosecution’s case as P4 and P5. My reasons as set out in my Brief Grounds of Decision given to the parties and dated 13 August 2012 were as follows.

No Issue of Voluntariness

I noted that despite saying during his examination in chief (EIC) that the whole statement in P5i was not his, B2 had testified during his cross-examination (XE) that the parts highlighted by him (in court at the trial) in blue in P5i were those parts which he told PW1 and had been recorded by PW1 in his statement in P5i. As for those parts which were not highlighted by B2 in blue in his statement in P5i, B2 stated that he did not tell or talk about these topics with PW1 on 3 July 2011. Everything not marked in blue by B2 in the statement in P5i was not part of B2’s conversation with PW1 on 3 July 2011 as PW1 was asking B2 questions and B2 was replying and B2 did not give to PW1 a long story like this. B2 agreed with the prosecution during his XE that he understood that when a statement was recorded, not all the questions would be recorded. Regardless of the fact that some of the questions were not reflected in the statement in P5i, B2 said he did not discuss with PW1 the parts which were not highlighted by him (in court at the trial) in blue in P5i and these parts were fabricated. But B2 also said that he did discuss with PW1 some of the parts not highlighted by him (in court at the trial) in blue in P5i not on 3 July 2011 but on other days. B2 said he made the statement in P5i voluntarily and some of the parts not highlighted by him (in court at the trial) in blue in P5i were also voluntary statements made by him not on 3 July 2011 but on other days. Further, when referred to the statement in P5i during his re-examination, B2 stated that the parts which were highlighted by him (in court at the trial) in blue in P5i were what he told PW1 and those parts which were not so highlighted were not said by him to PW1 on 3 July 2011 but at some other time. As for his statement in P4i, B2 had also testified that he did not agree or make the statement in his Answer to Question 12 which was added by the IO.

When an accused person simply denies that he made a statement attributed to him, the admissibility of the statement is not in issue and hence there is no need to conduct a voir dire (see Illustration (d) in section 279(1) of the CPC 2010). In Beh Chai Hock v PP [1996] 3 SLR(R) 112 at [27], the High Court held as follows:

“…when there is a dispute as to whether a confession was actually made, that is, when the accused alleges that the statement is a fabrication, there is no need to conduct a voir dire because there is no issue of voluntariness. The dispute in such cases is one of fact. The contested statement would be admitted in evidence and the question then is how much weight ought to be accorded to the statement at the conclusion of the trial. If the court finds that the statement is made by the accused person, then due weight should be accorded to the statement's contents, depending, of course, on all the circumstances of the case. But if the court finds that the statement is not made by the accused person, then no weight at all is accorded to the statement. This proposition has been accepted in a number of High Court decisions; for one example see PP v Tse Po Chung Nathan [1992] 1 SLR(R) 440 which was cited to me by the deputy public prosecutor. It has also been implicitly accepted by the Court of Appeal as representing the true state of the law in at least two decisions: Seow Choon Meng v PP [1994] 2 SLR(R) 338 and PP v Oh Laye Koh [1994] 2 SLR(R) 120….”

Based the aforesaid facts and applicable law, I accepted the prosecution’s submission that B2 had not given any testimony that he was coerced through inducement, threat, promise and/or oppression to actually say anything he did not want to say and B2 had not raised any issue of voluntariness relating to the recording by PW1 of B2’s statements in P4i and P5i, but only issues of weight which should be addressed in submissions at the end of the trial. Hence, there was actually no issue of voluntariness as regards B2’s statements in P4i and P5i which arose in the present case and a voir dire was not really needed.

Prosecution Witnesses Were Credible

Be that as it may, having conducted the voir dire and heard and observed the demeanour of all the prosecution witnesses, I found that in its entirety, the evidence of all the prosecution witnesses was inherently credible. All the prosecution witnesses were subject to very thorough, rigorous and comprehensive cross-examination by B2’s defence counsel. The result was that the prosecution’s case was much strengthened. They were shown to be consistent, cogent and credible in many critical areas of their testimonies. Their...