Public Prosecutor v Ong Jun Hao

• Court: District Court (Singapore)
• Judge: Soh Tze Bian
• Judgment Date: 02 February 2021
• Neutral Citation: [2021] SGDC 24
• Citation: [2021] SGDC 24
• Docket Number: District Arrest Case No 909604 of 2020
• Hearing Date: 02 February 2021,05 January 2021
• Plaintiff Counsel: DPP Kathy Chu (Attorney-General's Chambers)
• Defendant Counsel: Chen Zhida / Christopher Ong / Kenneth Lim (Helmsman LLC)
• Subject Matter: Criminal Law,criminal breach of trust as a servant,sentencing discount for voluntary admission, guilty plea, cooperation with investigations and full restitution
• Published date: 09 February 2021

District Judge Soh Tze Bian: INTRODUCTION & CHARGE

The accused person, Ong Jun Hao (“AP”), pleaded guilty to and was convicted of the following charge:

“….you between 14 March 2019 and 5 August 2019, in Singapore, being employed in the capacity of a servant to wit, a senior accountant by QNet Private Limited (“the company”), and in such capacity being entrusted with a certain property, to wit, 23 cheques belonging to the company and withdrawing a total of SGD223,500 from the company’s Oversea-Chinese Banking Corporation Limited bank account by using the said 23 cheques, did commit criminal breach of trust in respect of the said property, and you have thereby committed an offence punishable under Section 408 of the Penal Code (Chapter 224, 2008 Revised Edition), which is an amalgamated charge pursuant to Section 124 (4) of the Criminal Procedure Code (Chapter 68, 2012 Revised Edition), which is punishable with imprisonment for a term which may extend to 15 years and shall also be liable to fine.”

STATEMENT OF FACTS

The statement of facts which the AP had admitted without qualification stated as follows: “1. The accused is Ong Jun Hao, a 35-year-old Singaporean male bearing NRIC No. SXXXXXXE. At the material time of the offences, the accused was employed by Qnet Pte Ltd (“the company”) as a senior accountant. 2. The complainant is Quek Xue Lin Sharon, a Singaporean female who is the director and owner of the company. (A) First Information Report 3. On 30 October 2019 at about 4.53pm, the complainant lodged a police report at Central Division Headquarters against the accused, stating that he had encashed 23 cash cheques which had been pre-signed by her between March and August 2019 without the company’s knowledge and authorisation, and misappropriated the total sum of S$223,500 belonging to the company. (B) Facts surrounding the offences 4. Since around July 2018, the accused worked as an accounts executive for the company. When the previous senior accountant left the company, the accused was promoted to become the senior accountant. As the senior accountant, the accused was tasked with managing the company’s accounts and finances. As part of his job scope, the accused was entrusted with usage of the company’s cheques to make payments to third parties for the company. The complainant and the accused were the only two authorised signatories of the company’s OCBC bank account no. XXX (“the bank account”). Both their signatures were required before a cash cheque from the bank account could be encashed. 5. As the complainant frequently travelled for business, she would sign several empty cash cheques beforehand and give them to the accused. The accused knew that these company cheques were entrusted to him for payments relating to the company’s business transactions with other third parties, including vendors and suppliers. 6. From March 2019 to August 2019, on 23 occasions, the accused counter-signed on the empty cash cheques already pre-signed by the complainant, filled in an amount and encashed them at a branch of OCBC bank without the complainant’s knowledge or approval, as detailed below:

S/N	Date	Cash Cheque No.	Amount (S$)
1	14 March 2019	001742	5,000
2	25 March 2019	001759	12,000
3	26 March 2019	001762	10,000
4	28 March 2019	001763	15,000
5	8 April 2019	001781	10,000
6	10 April 2019	001773	10,000
7	15 April 2019	001787	10,000
8	10 May 2019	001802	10,000
9	27 May 2019	001811	10,000
10	28 May 2019	001813	10,000
11	29 May 2019	001814	10,000
12	11 June 2019	001829	10,000
13	18 June 2019	001830	10,000
14	27 June 2019	001839	10,000
15	4 July 2019	001850	10,000
16	11 July 2019	001905	10,000
17	12 July 2019	001915	10,000
18	13 July 2019	001916	10,000
19	17 July 2019	001911	10,000
20	18 July 2019	001919	10,000
21	19 July 2019	001921	10,000
22	19 July 2019	001913	9,000
23	5 August 2019	001920	2,500

7 In this manner, the accused converted the sum total of S$223,500 from the bank account belonging to the company to his own use. He gambled all the monies away. The accused deposited S$10,000 into the bank account on or about 22 July 2019. This was because the accused knew that there might have been insufficient funds in the bank account to make salary payments to the company’s staff due to his misappropriation. He did so to avoid detection of his offences. 8 On 6 August 2019, the accused sent a WhatsApp message to the complainant admitting he had taken money from the bank account without her approval, and that he had lost all the money through gambling. This led to the discovery of the offences by the company. Full restitution has since been made. 9 By virtue of the foregoing, between 14 March 2019 and 5 August 2019, in Singapore, while being employed as a servant of the company and being entrusted in such capacity with bank cheques for the bank account, the accused committed criminal breach of trust, an offence punishable under Section 408 of the Penal Code (Cap 224, 2008 Rev Ed).” (emphsis mine) SENTENCE AND REASONS

After careful consideration of the written submissions of both parties, I sentence the AP to 24 months imprisonment for reasons as follows.

MITIGATING FACTORS

I accepted the defence submissions that the mitigating factors in the present case were that the AP who was a first offender with no antecedents was genuinely remorseful for his actions, as demonstrated by the fact that he voluntarily revealed his crime (which took place between 14 March and 5 August 2019 and had gone undetected prior to his revelation) to his former employer, surrendered¹ and cooperated fully with subsequent investigations with the employer and the police², pleaded guilty³ to the offence and has made full restitution⁴ to his former employer. He has also sought treatment for his gambling addiction from the Institute of Mental Health / National Addictions Management Service. As a result of the treatment, he has been able to abstain from gambling and has even applied for and obtained exclusion orders barring himself from all forms of gambling.

I agreed with the defence submission that the prosecution assertion that the AP had “betrayed the trust reposed in him in that position and capacity” cannot be taken as an aggravating factor in the present case as abuse of trust per se is inherent in the offence of criminal breach of trust as a constitutive element of the offence and to say that abuse of trust is, over and above that, an aggravating factor is an error of double-counting⁵.

NON-MITIGATING/AGGRAVATING FACTORS

I agreed with the prosecution submissions that while the AP had pleaded guilty and confessed his crime even before it was discovered, there is no mitigating value in voluntary surrender and an early plea of guilt if an offender did so in circumstances knowing that the prosecution would have no difficulty in proving the charge against him.⁶ Further, the AP made use of the fact that other than the company owner, he was the only other authorised signatory to commit the offences.

In the present case, it would appear that when the AP knew that his crime would soon be detected, he deposited $10,000 into the company’s bank account on or about 22 July 2019 as there might have been insufficient funds in the company’s bank account to make salary payments to the company’s staff due to his misappropriation. Shortly thereafter on 6 August 2019, the AP sent a WhatsApp message to the complainant admitting he had taken money from the company’s bank account without her approval, and that he had lost all the money through gambling. This led to the discovery of the offences by the company. As such, I am of the view that there is no mitigating value in the AP’s voluntary surrender and early plea of guilt in the aforesaid circumstances where the prosecution would have no difficulty in proving the charge against him.

In this regard, I rejected the defence submission that there is nothing in the Statement of Facts to support the prosecution’s position that the AP had no choice, but to surrender on 6 August 2019. I agreed with the prosecution that it would only be a matter of time before the AP ’s offences were discovered as the AP knew that unless he continued to deposit more monies into the bank account, there would be insufficient funds to pay the staff due to his misappropriation. What the AP did on 22 July 2019 was to avoid detection, and thereby delay the discovery of his offences. It appears clear that unless the AP had the means to continue to deposit more money into the account, it was a matter of time before his offences would come to light. Hence, any mitigating weight given to the voluntary confession should be minimal as it was only a matter of time before his offences were discovered⁷ and the mitigating weight of the AP’s admission of the offences must be confined to allowing for the discovery of the offences at the particular point in time that they were discovered. Contrary to the defence submission and as submitted by the prosecution, taking steps to avoid detection is an aggravating factor in sentencing⁸.

SENTENCING DISCOUNT

While I note that the Australian cases of Whitlock v The Queen [2018] NTCCA 7 (where a 20% sentencing discount was given to an accused who pleaded guilty to a charge of possession and supply of...