Public Prosecutor v Tan Liang Ann

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 07 March 1998
• Neutral Citation: [1998] SGHC 69
• Docket Number: Magistrate's Appeal No 234 of 1997
• Date: 07 March 1998
• Published date: 19 September 2003
• Year: 1998
• Plaintiff Counsel: Luke Tan (Deputy Public Prosecutor)
• Citation: [1998] SGHC 69
• Defendant Counsel: SS Dhillon (Chua Dhillon Tan & Partners)
• Court: High Court (Singapore)
• Subject Matter: Statutory offences,Corruptly giving gratification,Criminal Law,Prevention of Corruption Act,Burden of proof in rebutting presumption,ss 6 & 8 Prevention of Corruption Act (Cap 241, 1993 Ed),Whether presumption of corruption in s 8 Prevention of Corruption Act (Cap 241, 1993 Ed) properly triggered and rebutted

Judgment:

1.YONG PUNG HOW CJ

The charge

The respondent, one Tan Liang Ann (Tan), was charged in the court below for the following offence:

You,

Tan Liang Ann

M/51

are charged that you, on or about 27 January 1997, at the Benjamin Gift Shop at No 304 Orchard Road #01-104/105 Lucky Plaza, Singapore, did corruptly give to an agent, to wit, one Lim Geok Kwee, a process server (judiciary) of the subordinate courts, a gratification of a sum of fifty dollars ($50), as an inducement for doing an act in relation to his principal`s affairs, to wit, asking the tourists who lodged claims to the small claims tribunal on disputes of goods sold by your shop, to settle the dispute out of court and you have thereby committed an offence punishable under s 6(b) of the Prevention of Corruption Act (Cap 241).

2.As far as relevant, s 6 of the Prevention of Corruption Act (Cap 241, 1993 Ed) (PCA) states:

6 If -

(b) any person corruptly gives or agrees to give or offers any gratification to any agent as an inducement or reward for doing or forbearing to do, or for having done or forborne to do any act in relation to his principal`s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal`s affairs or business;

he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both.

3.At the end of the trial, Tan was acquitted of the charge. The prosecution appealed. I allowed the appeal and now set out my reasons for doing so.

The facts

(a) The prosecution`s version of events

4.Tan is the proprietor of a Lucky Plaza shop in Orchard Road called Benjamin Gift Shop which sells, amongst other things, cameras and electronic goods.

5.On 23 January 1997, an Australian tourist by the name of Rodney Paterson (Rodney) went to the shop and bought goods amounting in total to $2,650. Realising subsequently that he was being overcharged, Rodney lodged a complaint at the small claims tribunal against the shop on 27 January 1997.

6.The usual procedure when such a complaint is lodged is for the process server to go and serve a notice of consultation on the shop. Such a notice will require the shop proprietor and the complainant to attend a consultation before the registrar of the small claims tribunal at a given time and date. At the consultation, the parties will be encouraged to reach a settlement, on failure of which the matter will have to be adjudicated before a referee of the small claims tribunal.

7.It was also explained that the practice was for the complainants to accompany the process servers when they served the notice and documents on the shop. Should the complainant be able to reach a settlement at the shop, he or she would be asked to sign on the reverse side of the claim form indicating that the claim was settled. There would then be no need to appear before the small claims tribunal.

8.The process server involved in the case at hand was one Lim Geok Kwee (Lim). At about 12pm on the day when Rodney lodged his complaint, Lim faxed the notice of consultation and the relevant receipt to Tan`s shop. Lim and Rodney subsequently went to the shop where they met Tan and one Johnny Lim (Johnny) who was a sales assistant employed by Tan. The documents (viz the claim form, the receipt and notice of consultation) were served on Tan who handed them to Johnny and asked him to attend to the matter. Lim told Tan and Johnny that, if the matter remained unsettled, they would have to appear before the small claims tribunal.

9.Rodney told Johnny that he was overcharged because other shops had quoted a price of $500 for the item in question (a JVC video camera). Rodney then left the shop to check the prices at the neighbouring shops. Two minutes later, Johnny instructed one of his assistants to follow Rodney.

10.While Rodney was out of the shop, Johnny sat behind a counter in the shop and Lim sat in front of him. Then, Lim saw Tan enter his office alone. A while later, Lim felt a movement in his left trouser pocket. When he drew out the item placed in it, he realised that Tan had slipped a red packet for him. Lim immediately told Tan that he could not accept the red packet as it was wrong, but Tan allegedly said that it was all right and no one would know. Tan also allegedly asked Lim to join him for a drink by saying, `These few days come for a drink`. Lim just kept quiet. Nothing else was said.

11.It is significant to note that, when this incident happened, Lim was very certain that no settlement had been reached over the claim. Lim also said that he did not know why the red packet was given to him. He said that it never occurred to him that it was for the Chinese New Year (which was 11 days away). At no point did Tan tell him that the red packet was for the Chinese New Year or that it was for his children.

12.Thereafter, about ten minutes later, Rodney returned and said that other shops were offering the item in question for $900. An initial offer of $800 refund to settle the matter was made by Tan through Johnny, but Rodney did not accept it. Johnny subsequently told Tan in Hokkien that the matter could be settled with a $700 refund together with two free gifts of a pair of binoculars and a wide-angled lens. Tan agreed. The offer was relayed to Rodney who accepted the terms. The matter was thus settled on the spot, and the acknowledgment of the settlement was signed on the back of the notice of consultation. After leaving the shop, Lim related to Rodney about the red packet incident. With assistance from Rodney, Lim wrote a note about the incident on the back of the notice.

(b) The defence`s version of events

13.Tan`s version of events was different from what Lim had narrated. He testified that he never got himself involved in the settlement of disputes; the matter was left to the sales person who made the sale. He said that he had seen Lim on many previous occasions since 1987. On this occasion, while Johnny was negotiating with Rodney, Tan said he went into his office. He then left and went to the bank which was about ten shops away.

14.When he returned to the shop some 15 minutes later, Johnny was still talking to Rodney. Tan said he just walked into his office to prepare red packets as he had changed new notes when he was at the bank. He said that it was his habit to prepare these red packets two weeks before the Chinese New Year, and he had been doing this for the past 20 years. After preparing the red packets, he put a few of them in his shirt pocket. Subsequently, Johnny entered his office and sought permission to refund $700 with gifts of a pair of binoculars and a wide angled lens. He agreed immediately, and Johnny walked out of the office. He proceeded to open the safe, took out $700 in cash, walked out of the office and went over to Rodney whereupon he handed him the money. Rodney then went out of the shop to check whether the binoculars and the lens were genuine.

15.After the matter was settled, Tan claimed that he walked over to Lim and slipped a red packet into Lim`s trouser pocket, but Lim blocked it with his hand, saying, `Sorry, I`m now on duty and I can`t accept it`. Tan replied in Hokkien, `This is not for you, it is for your family and children`. Tan then apologised as he withdrew the red packet and put it back into his pocket, mumbling, `If you don`t want, don`t want lah`. Tan claimed that he walked back to his office after that. No one else was present at the time, save for Johnny who was about eight feet away.

16. The decision below

On the evidence, the trial judge accepted that s 8 of the PCA had been triggered. Thus, there was a presumption that Tan gave the gratification corruptly, and it was for the defence to rebut this presumption of corruption on a balance of probabilities.

17.The trial judge then formed the view that this presumption had been successfully rebutted. He accepted Tan`s testimony that it was his personal habit to give out red packets two weeks before the Chinese New Year. These red packets were given in advance to people like the delivery boys, brokers and outdoor salesmen so that they would not feel missed out.

18.The trial judge also accepted that slipping the red packet into Lim`s trouser pocket was not necessarily surreptitious and accepted that the red packet was for Lim`s family and children. The trial judge noted that, although Tan knew Lim by sight, neither he nor Johnny had bothered to know Lim by name. The red packets which Tan kept in his shirt pocket were for no one in particular. To Tan, Lim always had a pitiful or pathetic look, and the decision to give him the red packet was made on the spot.

19.The trial judge also noted that Lim was in no position to influence the outcome of the settlement. On previous occasions when Johnny asked Lim to help, no reward was given. Moreover, Tan knew that Lim had no power or authority to affect the settlement. The trial judge accepted that Tan, being experienced in business for more than 20 years, would be aware that Lim had no power or authority to encourage or advise a settlement. He also had serious doubts whether a foreign claimant would be influenced by the advice of a mere process server.

20.The trial judge also found inconsistencies in the prosecution`s case and concluded that, in his assessment of the evidence and demeanour of the witnesses, he found Tan`s version convincing and generally Lim to be lying.

21.Then, the trial judge said the following (which in my opinion was wrong on the law because of the presumption):

41 However the burden on the accused [Tan] was only to raise a reasonable doubt and I found that he had.

Two cases were then cited by the trial judge ( Mat v PP [1963] MLJ 263 and Mohamad Radhi bin Yaakob v PP [1991] 3 MLJ 169 ) to support his view that the prosecution`s burden was to prove its case beyond a reasonable doubt. Finally, he said:

Despite

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