Public Prosecutor v Tan Cheng Yew and another appeal

• Jurisdiction: Singapore
• Judge: Lee Seiu Kin J
• Judgment Date: 30 November 2012
• Neutral Citation: [2012] SGHC 241
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeals No 97 of 2011/01 and 97 of 2011/02
• Published date: 03 January 2013
• Year: 2012
• Hearing Date: 16 January 2012,28 March 2012
• Plaintiff Counsel: Tan Ken Hwee, Vala Muthupalaniappan and Magdalene Huang (Attorney-General's Chambers)
• Defendant Counsel: Michael Khoo SC and Josephine Low (Michael Khoo & Partners)
• Subject Matter: Criminal Law,property,cheating,criminal breach of trust,International Law,extradition,speciality
• Citation: [2012] SGHC 241

Lee Seiu Kin J:

Tan Cheng Yew (“TCY”) was charged with six charges under the Penal Code (Cap 224, 1985 Rev Ed) (the “Penal Code”). He faced three charges of criminal breach of trust (“CBT”) under s 409 of the Penal Code (hereafter denoted as either “s 409” or “our s 409”, as may be appropriate to the context) and three charges of cheating under s 420 of the Penal Code (“s 420”). Two of the charges under s 409 and s 420 were stood down. TCY claimed trial to the following charges (“the four charges”): Between 30 July 2001 and September 2001, in Singapore, TCY did commit CBT in the way of his business as an attorney, in that he, being at the material time a practising advocate and solicitor and in such capacity was entrusted with dominion over property, namely a sum of S$1,500,000 belonging to one Tan Kwee Khoon (“Tommy Tan”), Tan Kwee Boon, Tan Kwee Beng, Tan Kwee Lian and Soh Keng Ngoh (collectively “the Tan Family”), did convert to his own use the said sum of S$1,500,000, by causing it to be pledged as a security for a personal loan facility from DBS Bank to him and TCY had thereby committed an offence punishable under s 409 (“the First Charge”). Between January and February 2002, in Singapore, TCY did cheat one Tommy Tan by deceiving him into believing that it was a legal requirement in loan agreements for the borrowers to repay the lender in the first year of the loan, which representation TCY knew to be false, and he thereby dishonestly induced Tommy Tan into delivering a sum of S$480,000 to him, which act he would not have done if he were not so deceived, and TCY had thereby committed an offence punishable under s 420 (“the Second Charge”). Between March 2001 and June 2001, TCY did commit criminal breach of trust in the way of his business as an attorney, in that he, being at the material time a practising advocate and solicitor and in such capacity was entrusted with dominion over property, namely a sum of S$1,940,724.97 belonging to the Tan Family, did convert to his own use the said sum of S$1,940,724.97, by retaining it in his Standard Chartered Bank (SCB) and Post Office Savings Bank (POSB) accounts and subsequently using them for his own purposes, and TCY had thereby committed an offence punishable under s 409 (“the Third Charge”). Sometime in May 2002, TCY did cheat one Tommy Tan, by deceiving him into believing that he would invest the sum of S$900,000.00 with an Australian bank on behalf of the Tan Family and that he would by reason of the said investment be in a better position to negotiate a better interest rate with the Australian bank, which representations TCY knew to be false, and he thereby dishonestly induced Tommy Tan into delivering a sum of S$900,000.00 to him, which act he would not have done if he were not so deceived, and TCY had thereby committed an offence punishable under s 420 (“the Fourth Charge”). The First Charge and Third Charge will be collectively referred to as the “s 409 charges” or the “amended s 409 charges” as appropriate, and the Second Charge and the Fourth Charge will be collectively referred to as the “s 420 charges”.

At the end of the trial, the trial judge (“the DJ”) convicted TCY on all four charges (see Public Prosecutor v Tan Cheng Yew [2011] SGDC 268 (“the Judgment”)). She then imposed the following sentences:

Charge	Sentence
The First Charge	Five years’ imprisonment
The Second Charge	Three years’ imprisonment (concurrently with the sentence for the First Charge)
The Third Charge	Five years’ imprisonment (concurrently with the sentence for the First Charge)
The Fourth Charge	Four years’ imprisonment (consecutively with the sentence for the First Charge)
	Total: Nine years’ imprisonment

The sentences were backdated to 22 October 2009, ie, the date of TCY’s extradition to Singapore (see below at [13]).

Magistrate’s Appeal No 97 of 2011/02 (“MA 97/2011/02”) is TCY’s appeal against his conviction on each of the four charges. Magistrate’s Appeal No 97 of 2011/01 (“MA 97/2011/01”) is the prosecution’s appeal against the sentences imposed on each of the four charges.

Facts

The following facts are undisputed.

Background to the charges

Tommy Tan was the first witness for the prosecution in the trial below. His father, one Tan Siew Seng, passed away in 1999. At the trial below, Tommy Tan was described by witnesses as immature, naive, inexperienced, trusting, and “not a details person” (Judgment at [163]). Tommy Tan was around 29 years of age at the material time.

The four charges against TCY arose from two main transactions following the death of Tan Siew Seng: The loan to the Central Christian Church (“CCC”), of which Tommy Tan and his family (“the Tan Family”) were members, so as to enable CCC to buy land to build a church. The sale of some shares in Poh Lian Holdings Limited (“Poh Lian”).

Renganathan Shankar (“Shankar”), an advocate and solicitor practising in the firm of Shankar, Nandwani & Partners at the material time, acted for CCC. Shankar also acted for Tommy Tan and his mother in Tan Siew Seng’s estate matter. Shankar introduced TCY to Tommy Tan for the purpose of obtaining independent legal advice in the matter of the loan to CCC.

TCY was an advocate and solicitor in Singapore, practising in the firm of Tan Cheng Yew & Partners. In 2001, Tan Cheng Yew & Partners merged with Tan JinHwee, Eunice & Lim ChooEng (“Tan & Lim”). Following TCY’s introduction to Tommy Tan, TCY became the Tan Family’s lawyer and dealt with all their legal matters.

At the trial below, the prosecution tendered an agreed statement of facts which provided as follows: In respect of the First Charge, Shankar, Nandwani & Partners, acting for CCC, had forwarded a cheque for S$1.5m to TCY on 30 July 2001. TCY deposited this cheque into his Development Bank of Singapore (“DBS”) fixed deposit account on 7 August 2001. In respect of the Second Charge, Tommy Tan had issued a DBS cheque dated 5 February 2002 for the sum of S$480,000 to TCY. TCY deposited it into his POSB account. In respect of the Third Charge, Tommy Tan had, on behalf of the Tan Family, entered into a memorandum dated 24 December 2000 (“Memorandum 1”) with Tan Cheng Yew & Partners, appointing TCY to negotiate the sale of 24 million shares in Poh Lian (the “Poh Lian shares”). Pursuant to Memorandum 1, the Poh Lian shares were transferred to TCY. TCY subsequently sold nine million of the Poh Lian shares and received a sum of S$1,940,724.97 from the sale. He deposited S$1,646,663.46 into his SCB account and the balance of S$294,061.51 into his POSB account. In respect of the Fourth Charge, TCY signed a deed of trust on 25 May 2002 (“the Deed of Trust”)¹ wherein he acknowledged that he was holding A$3m (comprising S$1,940,724.97 being the proceeds of the sale of the Poh Lian shares (see above at [9(c)]) and a sum of S$900,000) on behalf of the Tan Family for the purpose of investing the moneys with an Australian bank. Tommy Tan then issued a DBS bank cheque for S$900,000 to TCY who deposited it into his fixed deposit account. This S$900,000 forms the subject-matter of the Fourth Charge.

Background to the extradition

TCY left Singapore in 2003 and was untraced for some six years. On 2 June 2009, he was arrested at Munich Airport in Germany, pursuant to a warrant of arrest (WA-005536-03) issued by a Magistrate in Singapore on 28 November 2006 (the “Arrest Warrant”). The Arrest Warrant provided that TCY faced five charges: one charge under s 409 and four charges under s 420.

As TCY resisted extradition, extradition proceedings were commenced against him in Munich pursuant to a request for extradition made by Mr K Shanmugam, the Minister for Law, dated 6 July 2009 (the “Requisition”). Unlike the Arrest Warrant, the Requisition provided that TCY was charged with six charges: four charges under s 409 and two charges under s 420.

On 21 August 2009, the Federal Constitutional Court of Germany allowed the extradition of TCY to Singapore (the “Extradition Order”). TCY returned to Singapore on 22 October 2009.

The proceedings below Preliminary objections based on extradition-related issues

Prior to the commencement of the trial, the defence raised a preliminary objection based on extradition-related issues. Counsel for TCY, Mr Michael Khoo (“Mr Khoo”) first argued that TCY had been extradited on the basis of the Arrest Warrant and not the Requisition. For the sake of clarity, the differences between the Arrest Warrant and the Requisition are presented in table form below:

	Arrest Warrant	Requisition
No of s 409 charges	One	Four
No of s 420 charges	Four	Two
Total no of charges	Five	Six

According to Mr Khoo, the prosecution was not entitled to prosecute TCY on six charges instead of only the five charges listed in the Arrest Warrant.

Mr Khoo’s second objection was based on the speciality rule under s 17 of the Extradition Act (Cap 103, 2000 Rev Ed) (the “Extradition Act”). He contended that the increase in the number of charges and the amendment of the charges breached the speciality rule.

The prosecution’s case was that the extradition had taken place pursuant to the Requisition and not the Arrest Warrant. The prosecution then sought further amendments of the four charges that they were proceeding on and contended that these amendments should be allowed as they were in accordance with s 17 of the Extradition Act (hereafter referred to as “s 17” or “our s 17”, as appropriate to the context).

The DJ found that the preliminary objections were misconceived as the appropriate forum to raise such objections would have been the German Courts. In the light of the provisions for extradition between Singapore and Germany (the “Singapore-Germany Extradition Treaty”), the DJ found that it was not proper for her to go behind the Extradition Order...