Public Prosecutor v Tan Hor Peow Victor

• Jurisdiction: Singapore
• Judge: Wong Keen Onn
• Judgment Date: 21 July 2006
• Neutral Citation: [2006] SGDC 148
• Court: District Court (Singapore)
• Year: 2006
• Published date: 04 October 2006
• Plaintiff Counsel: DPP Lionel Yee with Jarred Pereira and Quek Hui Ling
• Defendant Counsel: Shanmugam, SC with Eugene Thuraisingam, Arasu & Ng Lip Chih (Allen & Gledhill)
• Citation: [2006] SGDC 148

21 July 2006

District Judge Wong Keen Onn

Background

1. The accused, Victor Tan Hor Peow, aged 35 years, was at the material time the Chief Executive (“CEO”) and Managing Director of Accord Customer Care Solutions Limited (“ACCS”). On 23 September 2005, he was first charged in Court for a total of 99 charges. They comprise the following:

(a) 43 charges of conspiracy to cheat under s. 420 read with s. 109 of the Penal Code,

(b) 50 counts of falsification of documents under s. 477A read with s. 109 Penal Code;

(c) 5 counts of making false or misleading statements under s. 199(b) read with s. 331 and punishable under s. 204(1) of the Securities and Futures Act (“SFA”) and

(d) 1 count of failing to act honestly as a director of the company under s. 157(1) of the Companies Act.

2. The charges of conspiracy to cheat and abetment of falsification of documents averred that the accused and one Damien Ang were involved with one Yip Hwai Chong (Ken Yip) in the commission of the cheating offences and with another for the offences of falsification of documents (“forgery charges”). It would be useful to briefly mention as background information the sequence of events for the respective cases against each of the accused persons. Ken Yip had pleaded guilty earlier in a District Court to similar charges on 13 February 2006 and was sentenced on 21 February 2006. The accused and another co-accused Damien Ang initially indicated that they wish to claim trial. The prosecution had intended to proceed only on the forgery charges and SFA charges in the first instance, whilst standing down the remaining charges. The accused objected and wanted all the charges preferred against him by the prosecution be heard and determined in one single trial, and asked for a court order requiring the prosecution to so proceed“in the interests of justice and to avoid prejudice to him” (“first joinder issue”). Similarly, the co-accused Sim Ee Tong objected to a joint trial against all 3 accused persons (ie Victor Tan, Damien Ang and Sim Ee Tong ) (“second joinder issue”). A preliminary hearing on these joinder issues was conducted on 17 March 2006. At that preliminary hearing, the prosecution informed the court(as they had done so at the various pre-trial conferences earlier) that they intend to proceed only on the 45 of falsification and SFA Charges against Victor Tan in the first instance, whilst standing down the remaining charges (namely, all the cheating charges, one charge under the Companies Act (DAC 42342 – 42385/2006) and 10 charges of falsification of offences (DAC 50277 – 50286/2006)). Damien Ang decided not to make submissions on this and asked to be excused from the hearing. This was granted by the court. After hearing the arguments, the District Court, on 27 March 2006, dismissed the defence’s application and ruled that it was proper for the prosecution to first try the accused on a smaller number of charges (see PP v Victor Tan and 2 Ors [2006] SGDC 55). Sim Ee Tong’s objection was also overruled. The cases against the accused persons were then set down for trial.

The charges

3. On the first day of the trial on 22 May 2006, the accused indicated to the court his willingness to plead guilty and parties sought an adjournment to 25 May 2006. On 25 May 2006, the accused pleaded guilty to 21 charges, namely:

(a) 11 counts of conspiracy to commit cheating under s. 420 read with s. 109 Penal Code (“aggravated cheating charges”),

(b) 8 counts under s. 477A read with s. 109 Penal Code (“falsification charges” or “forgery charges”) and

(c) 2 counts of s. 199(b)(ii) read with s. 331(1) punishable under s. 204(1) of the Securities and Futures Act (“SFA”) (“false information to induce purchase of securities”).

4. A copy of the 7^th charge, which is similar to other cheating charges, reads:

DAC 42364/2005 – (P7A)

You, Victor Tan Hor Peow, M/34 yrs, NRIC No: S7144971H, are charged that you, sometime in late 2003, as the Chief Executive Officer of Accord Customer Care Solutions Limited (“ACCS”), did engage in a conspiracy with one Yip Hwai Chong and one Ang Tse Aun Damien, to cheat Nokia Pte Ltd (“Nokia”) by way of fictitious warranty repair claims of Nokia mobile telephones, and in pursuance of the conspiracy and in order to the doing of that thing, an ACCS invoice (invoice number NSC04060006) dated 5 July 2004 for the sum of S$137,698.42 was submitted to Nokia, which deceived Nokia into believing that it has incurred the sum of S$137,698.42 as warranty repair claims for the month of June 2004, and thereby dishonestly induced Nokia to pay the sum of S$137,698.42 to ACCS, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 420 of the Penal Code (Chapter 224) read with Section 109 of the Penal Code (Chapter 224).

5. A copy of one of the “forgery” charges, the 18^th charge, is reproduced below for reference:

DAC 50267/2005 – (P18A)

You, Victor Tan Hor Peow, M/34 yrs, NRIC No: S7144971H, are charged that you, sometime in 2003, in Singapore being an officer of Accord Customer Care Solution Limited (hereinafter “ACCS”), namely, its Chief Executive Officer, did engage in a conspiracy with one Yip Hwai Chong and one Kuan Chow Kin, to falsify papers belonging to ACCS with the intention to defraud, and in pursuance of the conspiracy and in order to the doing of that thing, one Ang Tse Aung Damien falsified a ACCS Tax Invoice (number 1800001704), which falsely stated that refurbishment jobs done from January to October 2004 in Thailand for CSL Customer Care Centre (M) Sdn Bhd amounted to S$6,600,000.00, which act was committed in consequence of your abetment, and you have thereby committed an offence punishable under Section 477A read with Section 109 of the Penal Code (Chapter 224).

6. The 21^st charge, which is similar to the other s 199(1) SFA charges, reads as follows:

DAC 50291/2005 – P21A

You, Victor Tan Hor Peow, M/34 yrs, NRIC No: S7144971H, are charged that, on or about 26 February 2004, in Singapore, as the Chief Executive Officer of Accord Customer Care Solutions Limited (“ACCS”), a company listed on the Mainboard of the Singapore Exchange Securities Trading Limited, which committed an offence of making a statement, namely, ACCS’ 2003 Unaudited Full-Year Financial Statement, released via SGXNET on 22 February 2005, that was false in a material particular and was likely to induce the purchase of ACCS shares by other persons, to wit, the revenue and profit before tax of the ACCS Group for the year 2003 (‘YTD 2003’) stated as S$340,414,000 and S$52,041,000, respectively, in Part I 1(a) of the said Financial Statement were overstated by S$53,353m482 and S$50,046,321 respectively, when, at the time ACCS made the said statement, ACCS ought reasonably to have known that the statement was false, which offence was committed with your connivance, and you have thereby committed an offence under Section 199(b)(ii) reads with Section 331(1) and punishable under Section 204(1) of the Securities and Futures Act (Chapter 289).

7. Upon his conviction on these twenty-one charges, the accused consented to 68 charges be taken into consideration for purposes of sentencing. These comprise 22 counts of conspiracy to commit aggravated cheating under s. 420 read with section 109 Penal Code, 42 counts of falsification of documents under s. 477A read with s. 109 Penal Code, 3 counts of s. 199(b) read with s. 331 under the Securities and Futures Act and 1 count of failing to act honestly as a director of the Company under s. 157(1) of the Companies Act.

8. Another 10 charges under s. 477A read with s. 109 of the Penal Code (DAC 50277/05 to 50286/05 inclusive) were stood down as the prosecution indicated they intend to apply for a discharge not amounting to an acquittal for these charges.

9. As for mitigation, Senior Counsel Mr Shanmugam applied to the Court for a one month adjournment to await the outcome of another related proceeding in the High Court (High Court Suit No 488/2005/4) on a civil matter concerning a dispute on the sale of shares between the accused and another party as well as to prepare the mitigation plea. As prosecution did not object to this, the Court granted the application.

Facts

10. The above mentioned offences relate to incidents committed between November 2003 and late 2004 arising from a conspiracy that was hatched in late 2003. The offences against the accused person can be grouped into 3 broad categories. The first concerns the cheating charges in which the accused had abetted others in cheating Nokia Pte Ltd by submitting fraudulent claims for mobile telephone repair work that had not been carried out. For the 11 proceeded charges, the number and the value of the fraudulent claims were 7,966 and $211,898 respectively whilst the respective figures for all the cheating charges, including those taken into consideration, were 16,799 fictitious claims which amounted to a value of $360,387.

11. The second set of charges relates to falsification of delivery orders and tax invoices to support the existence of sham refurbishment business in its subsidiaries for services for used mobile telephones to various companies. The purpose behind this conspiracy was to artificially inflate the revenue and profits of ACCS in its financial statements. The value of work in the false invoices in the 8 charges under s 477A Penal Code that were proceeded with by the prosecution was $17,212,500.00 whilst the amount in all the falsified invoices and delivery orders was $59,162,606.80.

12. The third set of charges was under the Securities and Futures Act (SFA). This relates to the accused’s acts in conniving with the company ACCS to release 2 unaudited full year financial statements of ACCS for FY 2003 and FY 2004 via MASNET. These full year financial statements were false and had the likely effect of inducing the purchase of ACCS shares by other persons.

13. In pleading guilty, the...