Public Prosecutor v Varusai Mohamed Bin Syed Hanifa

• Jurisdiction: Singapore
• Judge: Carol Ling Feng Yong
• Judgment Date: 10 October 2022
• Neutral Citation: [2022] SGDC 238
• Court: District Court (Singapore)
• Docket Number: DAC 903182/2018 and others, Magistrate’s Appeal 9160/2022/01
• Published date: 14 October 2022
• Year: 2022
• Hearing Date: 04 March 2020,05 March 2020,06 March 2020,03 July 2020,07 July 2020,19 January 2021,11 May 2021,12 May 2021,22 June 2021,23 June 2021,15 July 2021,30 May 2022,08 July 2022,21 July 2022,18 August 2022
• Plaintiff Counsel: Kelvin Chong/Kor Zhen Hong (Attorney-General's Chambers)
• Defendant Counsel: Kor Zhen Hong (Attorney-General's Chambers),Mahmood Gaznavi s/o Bashir Muhammad/Rezza Gaznavi (Mahmood Gaznavi Chambers LLC)
• Subject Matter: Criminal Law,Criminal Breach of Trust,Section 406 of the Penal Code Chapter 224,Sentence
• Citation: [2022] SGDC 238

District Judge Carol Ling Feng Yong: Introduction

The Accused, currently 43 years old, stood trial on seven charges of criminal breach of trust (“CBT”), all under section 406 of the Penal Code, Chapter 224. At the conclusion of the trial, I found the Accused guilty on five charges and convicted him accordingly.

The table below sets out the sentence and orders made on the seven charges:-

	Charge	Particulars (Offences under section 406 Penal Code, Chapter 224)	Sentence/Order
1	DAC 903182/2018	The Accused was entrusted with, and dishonestly misappropriated S$599,226 on or about 25 May 2015	Three (3) years’ imprisonment (consecutive)
2	DAC 904823/2020	The Accused was entrusted with, and dishonestly misappropriated S$751,558 on or about 28 May 2015.	Three (3) years' and six (6) months' imprisonment (consecutive)
3	DAC 904829/2020	The Accused was entrusted with, and dishonestly misappropriated S$100,000 on or about 30 May 2015	Fourteen (14) months' imprisonment
4	DAC 904830/2020	The Accused was entrusted with, and dishonestly misappropriated GBP150,000 (approximately S$310,797.98) on or about 27 May 2015.	Twenty-four (24) months' imprisonment.
5	DAC 904831/2020	The Accused was entrusted with and dishonestly misappropriated $300,000, on or about 27 June 2015	Discharge Amounting to an Acquittal
6	DAC 904832/2020	The Accused was entrusted with and dishonestly misappropriated $218,344.20, on or about 29 June 2015	Discharge Amounting to an Acquittal
7	DAC 904833/2020	The Accused was entrusted with, and dishonestly misappropriated S$100,054 on or about 5 August 2015.	Fourteen (14) months' imprisonment (consecutive)
		Total Sentence: Six (6) years' and twenty (20) months' imprisonment with effect from 21 July 2022.

The discharge amounting to an acquittal on DAC 904831/2020 and DAC 904832/2020 was given on the Prosecution’s application at the close of the Defence’s case, based on their consideration of the evidence in trial.

The Accused’s appeal is in respect of the sentence only.

Brief Facts of the Case

As adduced in trial, the brief facts of the case were: The victim in this case was one Dr Tan Jee Lim (“Dr Tan”), an orthopaedic surgeon in JL Sports Medicine and Surgery Pte Ltd, a clinic based in Gleneagles Medical Centre. The Accused became a patient of Dr Tan in 2015 when the Accused consulted Dr Tan on a foot condition¹; After the Accused came to know that Dr Tan was accumulating US dollars and Sterling Pound for his children’s education overseas, the Accused told Dr Tan that he was able to obtain good foreign exchange rates “better than what is available in the market, be it the banks or the retail money changers”²; Subsequently, Dr Tan began to entrust large sums of money to the Accused. This begun from late April 2015 where in the beginning, Dr Tan received timely and profitable returns from the Accused from the foreign exchange (“forex”) trading. Dr Tan and the Accused shared the profits from such forex trading at 80% and 20% respectively; However, in the period from about 25 May 2015 to 5 August 2015, Dr Tan received no returns from the Accused in respect of monies handed over to the Accused. When the Accused was no longer contactable and Dr Tan realised that that he was not able to get his money back, he eventually lodged a police report on 20 August 2015³. Throughout Dr Tan’s testimony, he maintained that the entrustment of these monies to the Accused was solely for the purpose of forex trading done on his behalf⁴.

At the conclusion of trial, it was a key finding of the Court that the monies received by the Accused in all the five charges were entrusted to him by Dr Tan for the purpose of forex trading. There was no express or implied authority given to the Accused to use the monies in whatever way the Accused wished “as long as there is a profit”⁵, as claimed by the Accused. I was satisfied beyond a reasonable doubt that the Accused did misappropriate the monies entrusted to him and did so dishonestly, by using them for his perfume business instead of forex trading. The total amount of money misappropriated by the Accused was a sum of $1,861,635.98.

The Appropriate Sentence Approach in Sentencing

The starting consideration was the value of property misappropriated. In the case of Public Prosecutor v Lam Leng Hung and others [2017] 4 SLR 474 at [367] (“Lam Leng Hung”), this was made clear:

“We accept the general proposition that in respect of property offences, including that of CBT, the starting consideration ought to be the value of the property misappropriated. This principle has been reiterated in many cases. In Wong Kai Chuen Philip v PP [1990] 2 SLR(R) 361 (“Philip Wong”), Chan Sek Keong J observed (at [18]) that in an offence like CBT, “it [was] a matter of common sense that, all other things being equal, the larger the amount dishonestly misappropriated the greater the culpability of the offender and the more severe the sentence of the court”.”

As highlighted by the Prosecution in their Skeletal Sentencing Submissions⁶, whilst the value of the property misappropriated may be the starting point for the analysis of the appropriate sentence, the sentence is not derived by an application of a mathematical formula based on the amount in question. In Lam Leng Hung, the High Court stated the following:

“While the value of the property misappropriated ought ordinarily to be the starting point for the analysis of the appropriate sentence, it also bears emphasis that the court’s discretion in sentencing is never restricted to the application of a mathematical formula based on the amount in question (see, for example, the observations of Yong CJ in Amir Hamzah bin Berang Kuty v PP [2003] 1 SLR(R) 617 at [60]). As Lee Seiu Kin J observed in Tan Cheng Yew ([96] supra) at [184], it is common sense that sentences for CBT offences do not bear a relationship of linear proportionality with the sums involved. The appropriate sentence to be imposed must be arrived at after having regard not just to the amounts in question, but also to the totality of the circumstances, particularly the specific facts of the case.”

The consideration of the “totality of the circumstances” would include factors⁷ such as: the impact of the offence on the victim; the nature of the relationship with the victim; the level of trust breached; the deliberate targeting of a vulnerable victim; the number of victims involved; the degree of premeditation; the length of offending; the impact of the offences on the public and public confidence; any non-financial harm to the victim; the motivation of the offender; and the use to which the money or property that was dishonestly taken was put.

Reasons for the Sentence

The punishment prescribed for an offence under section 406 of the Penal Code is an imprisonment term of up to seven years, or with fine, or with both.

Value of Property Misappropriated

In this case, the amounts misappropriated in the charges ranged from $100,000 to $751,558. The total amount misappropriated was in excess of $1.8 million.

From a survey of the case precedents referred in the Prosecution’s written submissions, I was able to draw out sentences which were imposed on individual charges under section 406 of the Penal Code. The table below sets out the sentences with reference to the value of property misappropriated alone:

	Case	Value Involved	Individual Sentence	Total Value Involved	Global Sentence
1	PP v Tio Chee Hui [2018] SGDC 112 Pleaded guilty during trial	$639,473	3 years’ impt	$1,933,673	7 years and 6 months’ impt Appeal Dismissed
$1,294,200	4 years and 6 months’ impt
$269,482.50	22 months’ impt
2	PP v Lam Aik Kiang [2020] SGDC 131 Claimed trial	$296,000	26 months’ impt	-	28 months’ impt (sentence was ordered to run consecutively with a forgery charge) Appeal withdrawn
3	PP v Yang Yin [2016] SGDC 264 Pleaded guilty in the course of trial	$500,000	32 months’ impt (On appeal, sentence was enhanced to 4 years’ impt)	$1.1 million	72 months’ impt (On appeal, the global sentence was enhanced to 9 years’ impt. Highly aggravating facts)
$600,000	40 months’ impt (On appeal, sentence was enhanced to 5 years’ impt)
4	PP v Ng Ah Ghoon [2020] SGDC 184 Pleaded guilty in course of trial	$81,000 (there were various other amounts from $20,260 in 6 other charges)	12 months’ impt	$307, 260 (Total value in 7 proceeded charges) (Total value, including the amounts in 18 TIC charges: $444,760)	42 months’ impt Appeal Dismissed

With the above indicative sentences (based on value of property alone) in mind, I considered the specific facts and circumstances of the case.

Overall Circumstances of the Case

In his mitigation, Defence Counsel highlighted the following, amongst other factors for consideration⁸: The breach of trust was “on the low level”⁹; the relationship between the Accused and Dr Tan were not “contrived or designed because in the first $10 million transactions, they were genuine transactions”¹⁰; There was only one victim involved and Dr Lim was not a vulnerable victim whom the Accused had targeted; Circumstances (failed perfume business) had developed which caused the Accused to make a “silly decision”¹¹; there was no premeditation; The motivation for the Accused’s action was “not for self-gain” but “more to rescue himself from a hopeless situation”. The Accused was “driven by a complete desire to try and see how he could revive the situation”.¹²

Focusing on the circumstances of the case, Defence Counsel sought an imprisonment term of...