Public Prosecutor v R Sekhar s/o R G Van

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 02 June 2003
• Neutral Citation: [2003] SGHC 123
• Docket Number: Magistrate's Appeal No 297 of 2002
• Date: 02 June 2003
• Year: 2003
• Published date: 06 October 2003
• Plaintiff Counsel: Hui Choon Kuen (Deputy Public Prosecutor)
• Citation: [2003] SGHC 123
• Defendant Counsel: Ramesh Tiwary (Leo Fernando)
• Court: High Court (Singapore)
• Subject Matter: Hearsay,Admissibility of evidence,Evidence Act (Cap 97, 1997 Rev Ed) s 35,Proof of evidence,Relevant considerations,Charge,Whether admissible,Summaries of invoices in the form of computer printouts,Criminal Procedure and Sentencing,Evidence,Power of High Court,Whether hearsay evidence,Onus of proof,Amendment,Bankruptcy Act (Cap 20, 1996 Rev Ed ) ss 141(1)(a), 146,Whether burden of proving disclosure of status to lender shifts to undischarged bankrupt

1 The accused, R Sekhar s/o R G Van (“Van”), was acquitted in the magistrate’s court of 11 charges of obtaining credit, by taking up accommodation at the Peninsula Hotel (“the hotel”) and incurring monthly debts of over $500, without disclosing to the hotel that he was an undischarged bankrupt, under s 141(1)(a) read with s 146 of the Bankruptcy Act (“the Act”). On appeal by the prosecution against his acquittal, I amended the 11 charges to a single charge under the same provision and convicted him of that charge. I now give my reasons.

Background facts

2 Van who was an undischarged bankrupt at all material times, had registered to stay at the hotel as a guest on 4 July 1997. Even though his registration card (Exhibit P13) stated that his departure date would be 7 July 1997, he eventually stayed at the hotel for more than one year.

3 The 11 charges with which Van was charged were based on monthly summaries of invoices for the period from 4 July 1997 to 9 November 1998 (Exhibits P14 – P30). Each monthly summary of invoices, save the first, reflected the balance brought forward from the previous month. Such a balance was, however, deducted from the total hotel charges as stated in the summary of invoices for each month for the purposes of determining whether Van had incurred debts of over $500 in that particular month. The sums of payment made by Van in each month were also deducted. As such, after the calculations were made, for some months (July ’97, Nov ’97, Feb ’98 and Apr ’98) Van had a credit balance and for some other months (Oct ’97 and Dec ’97), he incurred debts of less than $500. The 11 charges brought against him were for each of the remaining months during his stay at the hotel, for which he incurred debts to the extent of $500 or more.

The prosecution’s case

4 The prosecution’s case was built around the evidence of the main prosecution witness, one Lee Chia Loo, also known as “Michael Lee” (“Michael”). Michael was the Front Office Manager of Peninsula-Excelsior Hotel at the material time. He testified that he was formerly the Front Office Manager of Excelsior Hotel since 1984 and when Peninsula Hotel and Excelsior Hotel merged, he was promoted to become the Front Office Manager of the Peninsula-Excelsior Hotel, starting from 1 August 1997. His duties included the organisation and running of daily operations such as the registration of guests.

5 Michael confirmed that Van was the same person stated to be “Simon Van” on the registration card. He had the opportunity to meet Van once in October 1998, when he had to deal with him over some irregularities in the guest invoices rendered for the period from April 1998 to September 1998.

6 The words “pax account” were endorsed on the registration card. Michael explained that this meant that the guest would be settling by cash. The hotel allowed a credit limit of up to $500. If this amount was exceeded, the guest would be contacted and asked to settle the payments. Van was, however, allowed to extend his stay at the hotel as a result of his long-term relationship with it, notwithstanding that his arrears had started snowballing.

7 According to Michael, Van was eventually locked out from his hotel room on 9 November 1998, upon instructions from the hotel’s general manager. By that time, the aggregate amount owed to the hotel by Van, as reflected in the last summary of invoices tendered (Nov ’98) was $23,874.94. An action was commenced by the hotel to recover this sum from Van. In February 1999, judgment in default of appearance was obtained by the hotel. Bankruptcy proceedings were also commenced and consequently a second bankruptcy order was made against Van on 5 August 1999. Michael testified that neither he nor the hotel was aware of Van’s previous status as an undischarged bankrupt. It was not the policy of the hotel to check the solvency status of its guests.

The defence case

8 Van testified that he was a regular guest of the hotel from as early as the 1980s. He knew several of the people who were part of the management of the hotel, including the financial controller, Mr KK Tay and the assistant general manager, Mr James Loo. He claimed to have a working relationship with the hotel as he had supplied musicians to the hotel at one stage and had also recommended clients to stay at the hotel. According to Van, Michael was also known to him, since they had had tea together on many occasions.

9 Van denied that he had ever seen the monthly summaries of invoices which had been tendered as evidence. He was not able to recall having made all the payments reflected in those invoices. He claimed that he made payments in lump sums, such as $1000, $2000 etc. and that they were paid in cash to the duty managers, cashiers and even to Michael himself.

10 According to Van, he had asked for a proper set of records when approached by the hotel to settle his bills. He claimed that he had noticed that some amounts which he had paid to Michael were not reflected in the weekly statements issued to him. It was said that the financial controller, Mr KK Tay, had also approached him about the irregularities in his statements of accounts. Van alleged that Michael had not submitted two months’ reports to the accounts departments, nor had he paid over some sums of money which were handed to him by Van for the hotel charges.

11 Van claimed that on 7 November 1998, Michael had called him to his office and told him that if anyone asked to whom the money was paid over, Van should say that he gave the money to another duty manager named Hazlinda. Van alleged that he had stormed out of Michael’s office, after telling him that he could not lie and accuse an innocent girl. Van also claimed that there was a meeting on 8 November 1998 to investigate why the figures were not right and that he had stormed out of the meeting as he was unhappy with the way it was conducted. He agreed with the prosecuting officer that criminal breach of trust was a very serious offence but claimed that he did not report the matter to the police because of his long-term relationship with the hotel. He further stated that he would put it on record that, once the trial was over, he would be making a police report against Michael.

12 Van testified that when he was locked out of his room by the hotel, all his belongings worth “thousands of dollars”, statements of accounts and invoices which the hotel had issued to him were left inside the room. He disputed the amount as reflected in the summaries of invoices ($23,874.94) and claimed that he owed only about $7,000 to the hotel. His stay at the hotel had been financed by an Indonesian acquaintance of his by the name of Ghani Santoso and also by a company called ID Imaging Pte Ltd, where he was working as a development consultant.

13 It was Van’s testimony that the hotel had known of his bankruptcy status but had yet allowed him to stay. It was his evidence during cross-examination that he was a member of a club, known as the Booze Members’ Club at the hotel and, when he was adjudicated bankrupt, he had been removed as a member of that club. There was also an article in a newspaper regarding a previous conviction of his, which mentioned clearly that he was a bankrupt at that time. It was said by Van that Michael had even shown him a copy of this article before.

The decision below

14 The trial judge, relying on the case of Highway Video Pte Ltd v PP [2002] 1 SLR 129, came to the view that Michael’s evidence was hearsay and unreliable. As he came over to the hotel to work only on 1 August 1997, he could not have been privy to the workings of the hotel at the time Van registered to stay at the hotel. The trial judge also took issue with the fact that the prosecution had not called any of the staff who had attended to Van as witnesses. Neither was any evidence adduced as to who was the maker of the registration card. In the circumstances, the trial judge was of the view that it could not be said conclusively that the hotel did not enquire about the solvency status of the guests in so far as Van, who checked in on 4 July 1997, was concerned. This would, in turn, mean that it could not be inferred conclusively that, at the time of checking-in, Van had not disclosed his bankruptcy status to the hotel.

15 The trial judge also found the summaries of invoices to be hearsay and unreliable. According to him, it was obvious that Michael did not prepare those exhibits. Under cross-examination, he was unable to testify in detail how the figures in the summaries of invoices were derived and explained that all financial statements were prepared by the accounts department and within the purview of the financial controller, Mr KK Tay. Furthermore, the summaries of invoices were not contemporaneous documents rendered to Van during his stay at the hotel, but merely extracts from them. The original invoices were not tendered to the court. Michael revealed during his testimony that the summaries of invoices were prepared for the purpose of bringing civil proceedings against Van. It was, furthermore, accepted that there were computer glitches, which resulted in irregularities in the guest invoices rendered for the period from April 1998 to September 1998. The prosecution did not lead any evidence to show who the maker of the summaries of invoices was and why the hearsay exceptions in sections 32 and 34 of the Evidence Act should be invoked.

16 Since the material aspects of the evidence of the main prosecution witness were hearsay and flawed, the trial judge had to rely on and take cognisance of Van’s position that he had made disclosure through his prior dealings with the hotel and that the hotel was aware of his bankruptcy status, within the disclosure guidelines formulated in the case of PP v Ong Ker Seng [2001] 4 SLR 180, which do not necessarily require a bankrupt to disclose his bankruptcy at the precise moment when credit is obtained.

17 In not calling...