Public Prosecutor v Syed Abdul Rahman bin Syed Mohsin
| Jurisdiction | Singapore |
| Judge | Kamala Ponnampalam |
| Judgment Date | 10 June 2019 |
| Neutral Citation | [2019] SGMC 26 |
| Court | District Court (Singapore) |
| Docket Number | MCN 900346/2016 |
| Published date | 07 December 2019 |
| Year | 2019 |
| Hearing Date | 16 March 2017,05 April 2018,17 October 2017,16 October 2017,14 October 2017,06 April 2018,15 March 2017,25 October 2017 |
| Plaintiff Counsel | DPP Muhammad Zulhafni Bin Haji Zulkeflee (Attorney-General's Chambers) |
| Defendant Counsel | Mr Anil Narain Balchandani (Messrs Red Lion Circle) |
| Citation | [2019] SGMC 26 |
The accused, Syed Abdul Rahman Bin Syed Mohsin (“Syed Abdul Rahman”), claimed trial to one charge under section 403 of the Penal Code (Cap 224, Rev. Ed.) (“PC”) for dishonestly misappropriating a cheque for the sum of S$140,159.54 issued in favour of the estate of Syed Salleh Bin Syed Mohsin. At the close of the trial, I found Syed Abdul Rahman guilty and convicted him on the charge. He was sentenced to nine months’ imprisonment. Syed Abdul Rahman has filed the present appeal against his conviction and sentence. He was granted a stay on the execution of the sentence and is currently on bail pending the hearing of his appeal.
My grounds for convicting Syed Abdul Rahman, and for the sentence imposed on him, are set out below.
TRIAL ChargeThe charge to which Syed Abdul Rahman claimed trial is as follows.
Background FactsMCN-900346-2016
You [...] are charged that you, on 10 October 2011, in Singapore, did dishonestly convert to your own use movable property,
to wit , a Citibank cheque bearing Cheque No. 9995533 for a sum of S$140,159.54 that was drawn in your favour by Navigator Investment Services Pte Ltd as payment for monies due to one Syed Salleh Bin Syed Mohsin, by banking the said cheque into the bank account in the name of the estate of the said Syed Salleh Bin Syed Mohsin, which account you administered, for your own use, when the said cheque was sent to you in error by the said Navigator Investment Services Pte Ltd, to whom the monies rightfully belonged, and you have thereby committed an offence punishable under s 403 of the Penal Code (Cap 224, 2008 Rev Ed).
The accused, Syed Abdul Rahman, is a 58-year old Singapore citizen, who works as an assistant cook at a stall at Lau Pa Sat. He comes from a family of seven – parents, two older brothers, two sisters and he. His parents and two older brothers had pre-deceased him. His older brother, Syed Salleh Bin Syed Mohsin, passed away on 30 November 2010. Syed Abdul Rahman was appointed as the Administrator of his late brother, Syed Salleh Bin Syed Mohsin’s estate. Syed Abdul Rahman, through his solicitors, extracted the Grant of the Letters of Administration for his late brother’s estate on 14 April 2011. The Schedule of Assets annexed to the Grant of the Letters of Administration listed two assets only. One was an AVIVA Insurance Investment Plan CPFOA (Account No XXX) valued at $142, 802.50. The other asset was an NTUC Insurance (DPS Scheme Policy No. XXX) valued at $53, 850.00. The net value of the estate was stated as $196,652.50.
On 21 December 2010, Syed Abdul Rahman received a letter from AVIVA notifying him that his late brother had an Investment Plan with AVIVA bearing Account No XXX. He was requested to produce certified true copies of the Death certificate, NRICs of the claimants and the Grant of Letters of Administration to facilitate the pay-out from this Investment Plan by AVIVA. It was explained in the letter that this account was a pure unit trust investment and quarterly fees are charged for administering the account. The letter stated that the quantum of the pay-out will be informed to him after the Grant of the Letters of Administration and the Withdrawal Instruction Form duly signed by the Administrator, are submitted to AVIVA.
A second letter dated 3 January 2011, was sent by AVIVA to Syed Abdul Rahman. This letter acknowledged receipt of the certified true copies of the Death Certificate and the NRIC of Syed Abdul Rahman, which were stated to have been handed over in person by Syed Abdul Rahman. The letter also stated that the market valuation of the Investment Plan as at 30 November 2010 was S$142,802.50. The letter advised that Syed Abdul Rahman should produce the Grant of Letters of Administration once obtained, so that the fund withdrawal can be effected.
On 19 April 2011, Syed Abdul Rahman went in person to the AVIVA office to submit the certified true copy of the Grant of Letters of Administration and the signed Withdrawal Form. An Acknowledgement Slip was issued to him by the Customer Service Representative at AVIVA. Thereafter, on 27 April 2011, Navigator Investment Services Limited, sent a letter to Syed Abdul Rahman enclosing a cheque for a sum of S$140,159.54 made payable to the estate of Syed Salleh Bin Syed Mohsin. The cheque was subsequently deposited by Syed Abdul Rahman into the estate account with DBS on 3 May 2011. The monies were withdrawn by Syed Abdul Rahman and the estate account was closed on 10 June 2011.
Navigator Investment Services Limited (“Navigator”) is a wholly owned subsidiary of AVIVA. Navigator is the investment arm of AVIVA, and the pay-out for the late Syed Salleh Bin Syed Mohsin’s Investment Plan was made from Navigator’s account. The cheque was therefore the property of Navigator. The separation of the funds was to ensure that the clients’ monies from the investment accounts are not mixed up with the insurance monies maintained by AVIVA.
On 12 May 2011, Navigator received a returned cover letter dated 27 April 2011, which had accompanied the cheque sent to Syed Abdul Rahman. Checks were made by the staff of Navigator to ascertain if the cheque had been encashed. Navigator’s finance team erroneously concluded that the cheque had not been presented. Navigator then took steps to re-issue the cheque to Syed Abdul Rahman.
Navigator decided that the second cheque should be collected in person as the first cheque seemed to have gone astray. On 5 October 2011, two phone calls were made to Syed Abdul Rahman by one of the staff of Navigator, Adam Lum Jin Shun, instructing him to collect the cheque from Navigator’s office. On 10 October 2011, Syed Abdul Rahman collected the cheque and the accompanying letter from Navigator’s office. He signed the form to acknowledge receipt. On the same day, he opened another estate account with DBS, and deposited the cheque into the account. Thereafter, Syed Abdul Rahman withdrew most of the money from the account the next day. He used part of it to open up a food business and gave the rest to his sisters. He withdrew the rest of the monies and closed the estate account on 29 November 2011.
Subsequently, Navigator realised their error and another phone call was made to Syed Abdul Rahman to notify him of the double payment. On 29 January 2013, the Service Team Head, Susan Tay Chin Mei, called Syed Abdul Rahman to inform him that the second cheque had been paid in error. He was requested to repay the overpaid amount but he flatly refused stating that he had spent all the money. The phone call was followed by a letter dated 31 January 2013, from the General Counsel of Navigator to Syed Abdul Rahman, demanding repayment. When this did not elicit a response from him, Navigator’s Legal Counsel filed a police report on 19 March 2013.
The Prosecution’s CaseThe thrust of the Prosecution’s case as summarised in their Closing Submissions, is that Syed Abdul Rahman had dishonestly converted the second cheque which was paid in error by Navigator, to his own use. This was done with dishonest intent i.e. knowing (or with wilful blindness to the fact) that the second was issued in error and that retaining or encashing the cheque would result in a wrongful gain to himself and wrongful loss to Navigator. It was submitted that the surrounding circumstances of the case clearly pointed to such dishonest intention. The Prosecution called a total of ten witnesses and relied on a series of documents to prove its case.
The Defence’s CaseThe Defence’s case simply put, is that Syed Abdul Rahman did not know that there had been an over-payment by Navigator, and that he had no dishonest intention to cause wrongful gain to himself or wrongful loss to Navigator, when he encashed the second cheque. He elected to give evidence from the witness stand when his defence was called, and he relied on the two written statements which he had given to the police in the course of investigations.
The Ancillary HearingI will first deal with the preliminary objection raised by the Defence, to the admission in evidence, seven documents tendered by the Prosecution. For ease of reference I reproduce below, the Table of Documents presented by parties in their submissions (with the description of the documents adopted from Prosecution’s submissions).
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The Defence argued that the documents were inadmissible as the makers of the documents were not called as witnesses and the documents constituted hearsay evidence. It was further argued that the Prosecution could not avail itself of the exception to the hearsay rule contained in s 32(1)(b)(iv) of the Evidence Act (Cap 97, 1997 Rev Ed) as the specific requirements of the provision had not been satisfied.
The case of
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