Public Prosecutor v R Sekhar s/o R G Van

• Jurisdiction: Singapore
• Judge: Gilbert Low Teik Seang
• Judgment Date: 27 February 2003
• Neutral Citation: [2003] SGMC 4
• Court: Magistrates' Court (Singapore)
• Published date: 02 October 2003
• Year: 2003
• Plaintiff Counsel: Sunari bin Kateni (Assistant Official Assignee)
• Defendant Counsel: Leslie Netto (Netto Tan & S Magin)
• Citation: [2003] SGMC 4

1. The accused claimed trial to 11 charges under section 141(1)(a) read with section 146 of the Bankruptcy Act for taking up accommodation at the Peninsular Hotel (the ‘hotel’) between 4 July 1997 and 9 November 1998 and consequently incurring monthly debts which exceeded $500, without disclosing to the hotel that he was an undischarged bankrupt. The 11 charges were based on monthly summary of invoices tendered by the hotel for the months July 1997 to November 1998 which were marked as Exhibits P14 to P30.

2. Throughout the trial, it was undisputed that the accused was an undischarged bankrupt at the time of the offences, as seen from the evidence of the senior officer of the Insolvency & Public Trustee’s officer and the Bankruptcy Instant Information Service (Exhibit P12).

Prosecution's case

3. The prosecution’s case against the accused for all the 11 charges was based solely on the evidence of one witness, Mr Lee Chia Loo who is also known as ‘Michael Lee’. At the time of the trial, Mr Lee was the front office manager of Peninsular-Excelsior Hotel which was formerly known as the Peninsular Hotel. Mr Lee clarified that Peninsular and Excelsior Hotels were separate entities in the beginning. He had joined Excelsior Hotel in 1984 but only went over to Peninsular Hotel after the merger on 1 August 1997 where he was made the front office manager.

4. Mr Lee testified that on 4 July 1997, someone by the name of ‘Simon Van’ checked into Peninsular Hotel. This was according to the hotel’s records and a copy of the registration form was tendered as Exhibit P13. The registration form was endorsed with the words ‘pax account’ which meant that the person checking into the hotel would settle the bills personally. The credit term allowed by the hotel to a guest was for a sum not exceeding $500.

5. Mr Lee identified the accused as the ‘Simon Van’ who had checked into the hotel on 4 July 1997 and stayed there until November 1998. This was based on his meeting with the accused sometime in October 1998 over some irregularities in the invoices rendered for the period April 1998 to September 1998. During the course of his stay at the hotel, the accused made periodic payments. Based on his long-term stay at the hotel, the accused was allowed by the hotel to continue staying even though progressively, the amount owed by him to the hotel became larger.

6. It was on 9 November 1998 that the hotel management decided to lock the accused from his room, after reminders to pay what he owed the hotel. The hotel then commenced civil proceedings in MC Suit 33344 of 1998 to recover the sum of $23,874.94 owed by the accused for his stay there. Judgement in default of appearance was obtained in favour of the hotel in February 1999. Bankruptcy proceedings were then commenced in the High Court against the accused in Bankruptcy No. 1293 of 1999. It was then discovered that the accused was already a bankrupt since 16 February 1990. Mr Lee testified that from the moment the accused registered at the hotel on 4 July 1997 until November 1998, the hotel was not told that he was a bankrupt. This was because it was not the duty of the service staff to check the status of the guest.

Defence

7. The prosecution closed its case after Mr Lee’s evidence and without assessing the veracity of the evidence adduced thus far, I was of the view that a prima facie case was established against the accused. The facts which supported this finding were that the accused was an undischarged bankrupt at the material time from the time of registration into the hotel until his forced departure, Mr Lee’s evidence that the hotel did not enquire into the solvency status of their guests, the non-disclosure of the accused of his bankruptcy status during his stay at the hotel and the civil judgement entered against him.

8. The accused did not dispute his stay at the hotel during the material period but testified that prior to checking into the hotel on 4 July 1997, he had stayed in the hotel on previous occasions and was known to the hotel management including the assistant general manager, the financial controller, the general manager, the sales and marketing director and Mr Lee himself. He testified that he had had a working relationship with the hotel including recommending guests and supplying musicians to it. It was his testimony that the hotel management knew about his bankruptcy status but yet allowed him to stay at the hotel. His stay at the hotel was to be financed by an Indonesian acquaintance of his by the name of Ghani Santoso and also by a company called ID Imaging Pte Ltd. The latter company was mentioned in the registration card P13.

9. The accused testified that he had met Mr Lee on several occasions during his stay at the hotel, contrary to Mr Lee’s claim that they only met once over the discrepant invoices. The accused claimed that Mr Lee knew of his bankruptcy. A few days before his departure from the hotel on 9 November 1998, he alleged that he was approached by the financial controller, one K K Tay about irregularities in his statement of accounts. It was alleged that Mr Lee had not submitted two months of requisite reports to the accounts department nor had Mr Lee paid over some sums of money which the accused had allegedly paid over to him for the accommodation fees. During a meeting on 9 November 1998 to sort out the matter, the accused stormed out of it and was subsequently locked out of his room. It was the accused’s position that he had made payments to the hotel but he disputed the amount owing.

Findings

Hearsay Problem

10. Apart from the undisputed evidence of the accused’s bankruptcy status by the officer from the Official Assignee’s office, the prosecutor’s case rested solely on the evidence of Mr Lee, the front desk office manager who only joined the hotel on 1 August 1997, which was after the accused had checked into it on 4 July 1997. Mr Lee testified that the hotel staff did not check or enquire about the solvency status of the guests. The problem with Mr Lee’s evidence on this aspect was that he was not privy to the workings of the hotel at the time when the accused checked in on 4 July 1997. He only joined the hotel on 1 August 1997. As such, it cannot be said that his statement on this aspect was conclusive or reliable. It is actually hearsay. This was revealed in cross-examination and in re-examination where he revealed that at the date and time prior to 1 August 1997, there was another front office manager (see pages 30 and 32 of the notes of evidence). Thus neither could it be said that he was in a position to testify what materialised at the time of checking in on 4 July 1997. There was also no evidence led by the prosecution on the staff who attended to the accused at the time of checking in and who the maker of P13 was. It should also be noted that P13 stated the checking date as ’97 Jun 3’. Mr Lee’s explanation that this was a mistake should be viewed with caution because in the first place, he was neither a staff nor the front office manager at that time.

11. The case of Highway Video Pte Ltd v. PP [2002] 1 SLR 129 serves as a reminder to trial judges to address their minds when assessing evidence to potential evidential problems, in particular, hearsay, which may arise. This was especially in the case when a witness gives evidence in a representative capacity. The Court has to ensure that the representative witness gives evidence that he or she is directly privy to. That case involved a copyright prosecution and it was held on appeal by Yong Pung How CJ (at page 139 of the report) that certain material aspects of the evidence of the representative of the copyright owner was hearsay because she was not privy to them. Suffice to say, Highway Video Pte Ltd v PP was an appeal from myself and I clearly bore in mind the potential evidential pitfalls in the present case here arising from Mr Lee’s evidence, who was giving evidence as the hotel’s representative.

12. Mr Lee was definitely not privy to the workings of the hotel prior to 1 August 1997. Thus, it cannot be conclusively said that the hotel did not enquire about the solvency status of the guests in so far as the accused who checked in on 4 July 1997 was concerned. Neither could it be inferred conclusively from Mr Lee’s evidence that at the time of the checking in, the accused had not disclosed his bankruptcy status to the hotel. In the first place, Mr Lee was not in the employment of the hotel at the time of checking in. This leads to the next issue whether adequate disclosure of his bankruptcy status was made by the accused during the course of his stay at the hotel.

Disclosure of Bankruptcy Status

13. It is pertinent now to set out the provision which the accused is charged for. Section 141(1)(a) of the Bankruptcy Act states:

“A bankrupt shall be guilty of an offence if, being an undischarged bankrupt –

(a) either alone or jointly with any other person, he obtains credit to the extent of $500 or more from any person without informing that person that he is an undischarged bankrupt;”

Section 146 of the Bankruptcy Act which is the penalty provision states:

“A person guilty of any offence under this Part shall be liable on conviction to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both.”

14. Not only must the bankrupt receive a credit exceeding $500, the provision requires him to inform the person giving him credit that he is an undischarged bankrupt. In paragraph 34 of their written submissions (marked as “PS”), the prosecution submitted that the duty was on the accused to inform the hotel that he was a bankrupt and the burden was not on the hotel to remember if the person they were providing credit to was or was not a bankrupt. In support of this contention, the prosecution quoted, within the same paragraph of their written submissions, the following propositions from the judgement of Yong Pung How CJ in PP v. Ong Ker...