Public Prosecutor v Ong Ker Seng

• Judgment Date: 12 September 2001
• Date: 12 September 2001
• Docket Number: Magistrate's Appeal No 14 of 2001
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Ong Ker Seng

Defendant

[2001] SGHC 263

Yong Pung How CJ

Magistrate's Appeal No 14 of 2001

High Court

Criminal Procedure and Sentencing–Appeal–Principles governing appellate interference with trial judge's sentence–Criminal Procedure and Sentencing–Sentencing–Conviction–Undischarged bankrupt obtained loans exceeding statutory limit without informing lender that he was an undischarged bankrupt–Appropriate principles to be taken into account–Validity of mitigation factors–Whether repayment of the loans constituted a mitigating factor–Aggravating factors–Whether custodial sentence more appropriate–Sections 141 (1) (a)and 146 Bankruptcy Act (Cap 20, 2000 Rev Ed)–Insolvency Law–Bankruptcy–Offences–Undischarged bankrupt obtained loans exceeding statutory limit without informing lender that he was an undischarged bankrupt–Duty to disclose–Timing of disclosure–Appropriate sentence

The accused obtained loans exceeding $500 without informing the lender that he was an undischarged bankrupt, which was an offence under s 141 (1) (a)of the Bankruptcy Act (Cap 20, 2000 Rev Ed) (the “Act”). He was convicted and sentenced to a total fine of $20,000, which was paid by his employer.

The prosecution appealed, arguing that the sentence was manifestly inadequate. The accused cross-appealed against his conviction, contending that the judge erred in finding that: (a) a bankrupt's insolvent status should be disclosed personally and just prior to obtaining credit from the lender; (b) the duty to disclose could not be discharged through an agent in any conversation prior to obtaining the credit; and (c) the lender was a credible witness and preferring his evidence over the accused's.

Held, allowing the appeal and dismissing the cross-appeal:

(1) The object of s 141 (1) (a) of the Act was to protect innocent people from being misled by the bankrupt's promise to pay. The onus was therefore not on the lender to remember if the borrower was, or was not, a bankrupt. Instead, the bankrupt had been specifically tasked with the duty to inform the proposed lender before obtaining credit. Hence, where notification of the bankrupt's status had been previously conveyed by the bankrupt (or his agent) to the proposed lender, even in circumstances extending outside the context of the lending transaction, then disclosure had been made as a matter of fact and no offence was committed: at [22].

(2) Where a bankrupt reasonably believed that the fact that he was an undischarged bankrupt continued to feature in the proposed lender's mind when extending the credit, then there was no need to inform the lender again. However, in such a case, the bankrupt ran the risk that the lender might subsequently accuse him of not previously declaring his insolvent status: at [22].

(3) Since the trial judge had the opportunity to assess the demeanour of the witnesses on the stand, the trial judge's findings relating to the credibility of the witnesses should not be disturbed. Accordingly, the appeal was dismissed: at [28].

(4) The role of the mitigation plea in the criminal justice process was to provide the accused an opportunity to present factors personal to himself which tended to reduce the gravity of his offence and also assist the court in coming out with an appropriate sentence consistent with justice: at [29].

(5) Neither ill health nor financial difficulties were mitigating factors except in the most exceptional of cases when judicial mercy might be exercised: at [30].

(6) The sentencing judge should not readily accept a plea by the accused that the offence was committed to pay for medical expenses of his family members, especially when there was no persuasive evidence put forward in support, as it would otherwise be easily abused and used as an excuse for criminals to harm others and commit crimes: at [30].

(7) The rationale behind s 141 (1) (a) of the Act was to prevent a bankrupt from freely obtaining further credit and potentially lose more of an innocent lender's money. Hence, the provision ensured that undischarged bankrupts informed proposed lenders of their status before credit was extended to them. Thus, the wrong in this offence laid not in the failure to pay the debt, but in the deception practised on the creditor by obtaining credit from him knowing that he would not extend it if he knew the circumstances. Thus, repayment of the loan by the bankrupt should not be regarded to be as strong a mitigating factor as restitution in deprivation of property cases: at [31] to [33].

(8) Where restitution was made in circumstances which might lead one to suspect that it was done in the hope of getting a lighter sentence, the court would not give much credit for it: at [35].

(9) The offence under s 141 (1) (a) of the Act was generally more appropriately punished with imprisonment rather than with a fine. After all, it was improbable that a bankrupt would have sufficient funds to pay any fine imposed and the fine would either be paid by someone else or with funds that should be available to creditors in the first place. In the instant appeal, the prosecution's appeal was allowed and the fine imposed set aside and substituted with a term of imprisonment: at [36] and [37].

Krishan Chand v PP [1995] 1 SLR (R) 737; [1995] 2 SLR 291 (folld)

Lai Oei Mui Jenny v PP [1993] 2 SLR (R) 406; [1993] 3 SLR 305 (folld)

R v Duke of Leinster [1924] 1 KB 311 (refd)

R v Schefelaar [1939] SSLR 221; [1939] MLJ 45 (folld)

R v Leon Zeitlin (1932) 23 Cr App R 163 (folld)

Sim Yeow Seng v PP [1995] 2 SLR (R) 466; [1995] 3 SLR 44 (folld)

Soong Hee Sin v PP [2001] 1 SLR (R) 475; [2001] 2 SLR 253 (folld)

Tan Hung Yeoh v PP [1999] 2 SLR (R) 262; [1999] 3 SLR 93 (folld)

Bankruptcy Act (Cap 20, 2000 Rev Ed) ss 141 (1) (a), 146 (consd)

Chan Wang Ho (Deputy Public Prosecutor) for the appellant/respondent

Subhas Anandan and Anand Nalachandran (Harry Elias Partnership) for the respondent/appellant.

Yong Pung How CJ

1 The respondent was convicted by District Judge Yap Siew Yong on 13 January 2001 of two offences under s 41 (1) (a)of the Bankruptcy Act (Cap 20, 2000 Ed) (“the Act”), for obtaining credit beyond $500, without informing the lender that he was (and remains) an undischarged bankrupt. The offence is punishable under s 46 of the Act with a fine not exceeding...