Public Prosecutor v Tan Ke Huat

• Jurisdiction: Singapore
• Judge: Mathew Joseph
• Judgment Date: 17 July 2012
• Neutral Citation: [2012] SGDC 259
• Court: District Court (Singapore)
• Docket Number: DAC 20360-62 of 2011, Magistrate’s Appeal No. 075/2012/01
• Year: 2012
• Published date: 01 August 2012
• Hearing Date: 27 March 2012
• Plaintiff Counsel: DPP Christine Liu
• Defendant Counsel: Mr Kang Kim Yang
• Citation: [2012] SGDC 259

District Judge Mathew Joseph:

This is an appeal against the order of this Court on 27 March 2012 that the accused be given a discharge not amounting to an acquittal (“DNAQ”).

Background

The accused has been charged with 3 counts under Section 406 of the Penal Code (CAP. 224), as follows:

DAC 20360/2011

“You, Tan Ke Huat, male 53 years, NRIC No. XXX, are charged that you, between the 28th day of February 2003 and the 24th day of January 2004, in Singapore, being entrusted with dominion over property, to wit, a total sum of S$8,750 belonging to one Iftakher Uddin, committed criminal breach of trust of the said property, and you have thereby committed an offence under Section 406 of the Penal Code, Chapter 224.”

DAC 20361/2011

“You, Tan Ke Huat, male 53 years, NRIC No. XXX, are charged that you, between the 1st day of July 2004 and the 25th day of June 2005, in Singapore, being entrusted with dominion over property, to wit, a total sum of S$1,700 belonging to one Iftakher Uddin, committed criminal breach of trust of the said property, and you have thereby committed an offence under Section 406 of the Penal Code, Chapter 224.”

DAC 20362/2011

“You, Tan Ke Huat, male 53 years, NRIC No. XXX, are charged that you, on the 27th day of July 2005, in Singapore, being entrusted with dominion over property, to wit, a total sum of S$400 belonging to one Iftakher Uddin, committed criminal breach of trust of the said property, and you have thereby committed an offence under Section 406 of the Penal Code, Chapter 224.”

Background

Before going into the reasons why the Court has granted the application by the Prosecution for a DNAQ, it is useful to set out the background facts.

The 3 charges against the accused alleged that between 28 February 2003 and 27 February 2005, he had committed criminal breach of trust of a total of S$10,850 belonging to one Iftakher Uddin (“Uddin”). At the time of offence, he was the Senior Programme Executive of ST Aerospace Supplies Pte Ltd.

Uddin is a 57-year old Bangladeshi national residing in Bangladesh. He is the sole proprietor of SS Motors and SS Aerospace Ltd, both registered in Bangladesh. Sometime around 1990, he became the Bangladeshi sales representative for a number of local companies including ST Aerospace and SIA Engineering. Uddin acted as the agent for the sale of aircraft spare parts and aircraft services to Bangladeshi airline companies. In return, he was paid a commission by the local companies.

Sometime around 2001, the accused took over management of the Bangladesh market of ST Aerospace from his colleague, and thereby became acquainted with Uddin.

It appears that Uddin soon found it inconvenient to come to Singapore to authorize a local bank to transfer money as payment to various foreign parties. As such, he and the accused agreed that a Singapore bank account would be opened in the accused’s name, to facilitate these transfers; the OCBC account 508-5-0869-23 was opened on or about 26 October 2001.

This account was used by Uddin to deposit all his commissions or other earnings. The accused had possession of the ATM card and passbook for this account. Whenever Uddin needed to transfer monies to foreigners abroad, he would instruct the accused to make the telegraphic transfers from Singapore on his behalf.

Sometime around December 2003, the accused started to use credit facilities to buy shares. He subsequently started to transfer sums of money from Uddin’s account into his own account in order to pay off the installments. Uddin was never informed about this use of his money by the accused.

Submissions by Prosecution

These transactions form the basis for the 3 charges under Section 406 Penal Code against the accused.

The Prosecution is seeking an order under Section 232 of the Criminal Procedure Code 2010 for the accused to be granted a Discharge Not Amounting To An Acquittal (“DNAQ”).

The Prosecution submitted that it is clear from Section 232(2) CPC 2010 that the initial legislative presumption is in favour of a DNAQ (TS Video and Laser Pte Ltd v Lim Chee Yong and another appeal [2001] 3 SLR(R) 639). Further, the Prosecution submitted that the accused in applying for a discharge amounting to an acquittal (“DATA”) must show sufficient reasons to displace the principle that the discharge should not amount to an acquittal and cited in support K Abdul Rasheed & Another v Public Prosecutor [1984-1985] SLR(R) 1.

In essence, the Prosecution submitted that there is no basis to grant a DATA based on the circumstances of this case for the following reasons: Main Prosecution witness is still contactable further review resulting from main prosecution witness’s statutory declaration is necessary; defence’s arguments are misplaced. Main Prosecution witness is still contactable

The Prosecution submitted that the facts of the present case can be distinguished from those where a DATA has been ordered. In Goh Cheng Chuan v Public Prosecutor [1990] 1 SLR(R) 660, the material witness was unavailable and could not be found even after 5 years from the date the charge was first brought against the accused. In this case, the accused had just been charged in 2011 and the difficulty in contacting the witness is fairly recent.

Prosecution also submitted that in K Abdul Rasheed, one of the witnesses in question was dead and the other was a foreigner who was unavailable. No reasons were given by the Prosecution for its application for a DNAQ in that case unlike the case here where reasons have been given to the Court.

It was further submitted that this was not a case where the witness was missing or unavailable. In this case, the location of the witness was ascertainable and he was also contactable by the Investigation Officer. Prosecution further added that the recent difficulty faced by the Prosecution in securing the accused’s attendance was as a result from last-minute schedule conflicts.

Prosecution also informed the Court that the accused himself is able to contact the witness without difficulty. It appears that at the Pre-Trial Conference on 29 December 2011, the defence had informed that the accused was still in touch with Uddin as they had some business dealings.

It was also added by the Prosecution that under the above circumstances, it was not likely that Uddin will be indefinitely uncontactable. There was reason to believe that there would not be an indeterminate delay in the resolution of the case.

It was also the submission of the Prosecution that the case law also supports the position that it is not in every case where a witness is unavailable that a DATA is ordered. In Public Prosecutor v Loh Siang Piow [1998] 1 SLR(R) 347,...