Public Prosecutor v Shaik Raheem s/o Abdul Shaik Shaikh Dawood

CourtDistrict Court (Singapore)
JudgeKow Keng Siong
Judgment Date25 April 2006
Neutral Citation[2006] SGDC 86
Citation[2006] SGDC 86
Publication Date15 June 2006
Plaintiff CounselLow Cheong Yeow (Deputy Public Prosecutor)
Defendant CounselBajwa Ragbir Singh (Bajwa & Co)

25 April 2006

Judgement reserved.

District Judge Kow Keng Siong:

Introduction

The appeal

1. This Judgement arose from an appeal against conviction and sentence.

The charges

2. The Accused, Mr Shaik Raheem s/o Abdul Shaik Shaikh Dawood, claimed trial to 4 cheating charges. They were –

a. DAC 53819 – 21/2004 (charges under section 420 of the Penal Code), and

b. DAC 53822/2004 (charge under section 417 of the Penal Code).

Triable issues

3. At all material times, the Accused was the sole proprietor of M/s Shaik Rassd Realty.[note: 1] It was not disputed during the trial that (a) the alleged victims in this case had separately approached the Accused for loans and to sell their HDB flats; and (b) the Accused had issued cheques to them as part of their loan arrangements.

4. According to the Prosecution, the Accused had deceived the alleged victims (borrowers) into believing that the cheques he had issued were to be treated as loans for amounts lesser than those reflected in the cheques, thereby dishonestly inducing the borrowers to either (a) re-deposit the difference into his bank accounts (DAC 53819 – 21/2004), or (b) accept the lesser sum (DAC 53822/2004). It was the Prosecution’s case that the Accused, unknown to the borrowers, had in fact intended to later demand full repayment of these cheques, even though lesser sums were actually disbursed as loans.

5. The Defence vigorously denied having any intention to cheat. It was contended that the re-deposited monies (DAC 53819 – 21/2004) and excess funds (DAC 53822/2004) were advance commissions which the borrowers had agreed to pay to the Accused pursuant to their loan arrangements. According to the Defence, these arrangements were reflected in various legal documents and business records kept by the Accused.

6. The borrowers however disputed having agreed to pay the advance commissions. As for the legal documents and business records relied upon by the Accused, the borrowers claimed that they did not fully appreciate their contents before signing them. The Prosecution also submitted that the relevant documentation did not in fact show that there was an agreement to pay advance commissions.

The decision

7. At the end of the trial, I accepted the Prosecution’s case and convicted the Accused accordingly. He was sentenced to a total of 22 months’ imprisonment. I shall now set out the grounds for my decision.

Evidence relating to DAC 53819/2004 (1st charge)

Undisputed facts

8. The borrower: The borrower was one Ibrahim bin Hassan. Sometime on or about 7 February 1999, Ibrahim and his wife (Zaharah bte Ibrahim) signed an ‘Exclusive Authorisation to Sell’ agreement (P23).[note: 2] Under this agreement, they agreed to –

(a) irrevocably grant the Accused ‘the exclusive authorisation and right to sell’ their HDB flat at Block 129, #06-338 Pending Road, and

(b) pay the Accused 2% commission for selling their flat.

9. Execution of legal documents: In June 1999, Ibrahim and his wife approached the Accused to discuss about the sale of their flat and to request for a loan. Arising from these discussions, Ibrahim and his wife executed the following documents on or about 21 June 1999 at M/s David Nayar & Vardan (DNV), a law firm:

a.

P24

Warrant to Act

According to this document, Ibrahim and his wife agreed to appoint DNV as their solicitors for the sale of their flat.

b.

P26

Deed of Agreement

According to this document –

a. The Accused agreed to extend ‘a friendly loan, free of interest, for the sum of S$50,000’ to Ibrahim and his wife;[note: 3]

b. Ibrahim and his wife agreed to repay the loan to the Accused either upon the latter’s demand, or upon the sale of their flat, whichever was earlier;[note: 4]

c. ‘In consideration of the matters aforesaid’, Ibrahim and his wife agreed to appoint the Accused as the ‘sole and exclusive agent’ to sell their flat ‘at a commission of 2% of the sale price’;[note: 5]

d. The Deed constituted the entire agreement and understanding between the Parties in relation to the matters referred to in the agreement.[note: 6]

c.

P27

Letter of Authorisation

According to this document, Ibrahim and his wife authorized the HDB to pay over the balance of the sales proceeds, after the necessary deductions, to DNV.

10. Execution of Statutory Declaration: On or about 21 June 1999, Ibrahim and his wife also affirmed a Statutory Declaration (P25). According to this declaration, they had ‘taken a friendly loan, free of interest, in the sum of S$50,000’ from the Accused.

11. Encashment of the cheque: On 22 June 1999, the Accused and Ibrahim visited a Hong Kong and Shanghai Banking Corporation Limited (HSBC) branch at Parkway Parade to encash a $45,000-HSBC cheque (P29) which the Accused had issued in favour of Ibrahim. After encashing the cheque, Ibrahim –

(a) retained $20,000, and

(b) re-deposited the balance $25,000 into the Accused’s HSBC bank account.

12. Signing of Schedule of Disbursement & Loan Agreement: In the course of their dealings with the Accused, Ibrahim and his wife had also signed –

a. P28 (Schedule of Disbursement maintained by the Accused’s firm) on several occasions; and

b. P35 (incomplete loan agreement) on which P29 ($45,000-cheque) and another 2 cheques were photocopied.

13. Purchase of new flat: On 6 July 1999, Ibrahim used the Accused’s services to purchase a new flat. The Accused also helped him pay a $5,000-deposit for the new flat.[note: 7]

14. Sale of old flat: On 19 July 1999, the Accused sold Ibrahim’s old flat for $404,000: Sale & Purchase Agreement (P32). On the same day, Ibrahim and his wife signed an undertaking (P31) to pay the Accused’s firm a commission of $8,080 (2% of $404,000) for selling their old flat.[note: 8]

15. Signing of the completion account: After selling their flat, Ibrahim and his wife visited DNV and signed a completion account (P33). According to P33, the Accused was to receive $55,330 from the sale proceeds. This amount was based on the Accused’s fax (P34) to one Jenny, a DNV staff. The fax stated that the $55,330 deduction was ‘inclusive of sale / purchase commission’.[note: 9]

Prosecution’s case

16. Muhammad bin Abu Bakar (AB): Ibrahim testified that he was introduced to the Accused by one Muhammad bin Abu Bakar (AB). AB was his wife’s (Zaharah) brother-in-law was working for the Accused as a property agent at the material time.[note: 10]

17. Loan discussions: According to Ibrahim, he had asked the Accused for a $5,000 loan in June 1999 to help a friend. The Accused agreed to lend the money provided Ibrahim executed certain documents at a law firm.[note: 11]

18. Execution of legal documents: As directed by the Accused, Ibrahim and his wife proceeded to DNV on 21 June 1999, accompanied by AB. According to Ibrahim, AB had gone along on the Accused’s instructions. This aspect of Ibrahim’s evidence was not challenged by the Defence.[note: 12]

19. At DNV, a clerk called Jenny told Ibrahim and his wife to sign a stack of documents. Ibrahim was shocked to discover that these documents reflected the loan amount as $50,000. When Ibrahim queried AB about this discrepancy, the latter suggested that he accept the higher loan figure and sign the documents. AB explained that having a higher loan figure in the documents meant that Ibrahim could obtain a larger loan. It would also save him the inconvenience of having to visit the law firm again if he subsequently needed to borrow more money. According to AB, Ibrahim merely needed to give the Accused $1,000 as a token of appreciation for the loan after the matter had been settled. Ibrahim accepted AB’s advice and signed the documents without really scrutinizing them. Ibrahim testified that he decided to obtain a $20,000-loan from the Accused – $5,000 for his friend and another $15,000 for himself.[note: 13]

20. Execution of Statutory Declaration: Ibrahim later signed a Statutory Declaration (P25). This was despite the fact that he did not really understanding its contents as he was not proficient in English. This was because before arriving at the Commissioner of Oath’s office, AB had told him to just affirm the Declaration without asking any questions.[note: 14]

21. Encashment of cheque: The next day, the Accused arranged with Ibrahim to meet at the Parkway Parade HSBC branch so that the latter could collect the loan.[note: 15]

22. Ibrahim testified that AB had earlier informed the Accused that he (Ibrahim) needed a $20,000-loan only. At the bank however, the Accused gave him a $45,000-cheque (P29). When Ibrahim stated that only $20,000 was needed, the Accused told him to instruct the bank teller to re-deposit the balance $25,000 into his (Accused’s) bank account. The Accused also said that if Ibrahim needed further loans in future, he could ask for it.[note: 16]This aspect of Ibrahim’s evidence was accepted by the Defence.[note: 17]

23. On the understanding that he was borrowing only $20,000 at the material time, Ibrahim instructed the bank teller to re-deposit $25,000 from the cheque (P29) into the Accused’s account. After Ibrahim had collected $20,000, the Accused again reminded to just inform him whenever the balance $25,000 was needed.[note: 18]

24. According to Ibrahim, he did not expect the Accused (a) to treat the encashment of the cheque (P29) as the disbursement of a $45,000-loan. Neither did he expect the Accused to later deduct the re-deposited $25,000 from his flat’s sale proceeds. If he had known that Accused would do so, Ibrahim would not have agreed to re-deposit $25,000 into the Accused’s account.[note: 19]

25. Ibrahim eventually did not require further loans from the Accused.[note: 20]

26. Signing of the completion account: Sometime in October 1999, Ibrahim learnt that his flat had been sold for $404,000.[note: 21] When he and his wife went to DNV to settle the completion account, they found that the Accused had made a claim of $55,330 from the sale proceeds. This, according to Ibrahim, was grossly in excess of what was rightly...

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