Rahj Kamal bin Abdullah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 20 October 1997
• Neutral Citation: [1997] SGHC 258
• Docket Number: Magistrate's Appeal No 70 of 1997
• Date: 20 October 1997
• Year: 1997
• Published date: 19 September 2003
• Plaintiff Counsel: Appellant in person
• Citation: [1997] SGHC 258
• Defendant Counsel: Roy G Neighbour and Laura Low (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Property,Enhancement of sentence,Elements of offence -Whether element of deception can be satisfied without personal and direct representation by appellant to victims,s 415, s 420 Penal Code (Cap 224),Whether enhancement of sentence is justified,Whether business of company carried on with intent to defraud creditors,Sentencing,s 340(1), s 340(5) Companies Act (Cap 50, 1990 Ed),Appellant practising deception on large scale,Need for deterrence,Companies,Cheating,Whether appellant knowingly a party,Elements of offence,Whether dishonesty can be inferred from circumstances and appellant's conduct in concealing material facts,Fraudulently inducing investment,Whether a fraudulent or dishonest representation can be made through an agent for the appellant,Criminal Law

Judgment:

1.YONG PUNG HOW CJ

Introduction

This appeal arose out of a conviction for six charges: three counts of cheating under s 420 of the Penal Code (Cap 224) and three counts of fraudulent trading under s 340(5) read with s 340(1) of the Companies Act (Cap 50, 1990 Ed). The three cheating charges relate to the following cases and victims: (a). DAC 16750/95 Salim bin Salleh (PW14)

(b). DAC 16756/95 Norzita bte Musa (PW6)

(c). DAC 353/96 Norrazzman bin Abdul Raup (PW12)

whilst the fraudulent trading charges relate to: (d). DAC 16753/95 Hussain bin Mohd (PW9)

(e). DAC 16757/95 Noorhaini bte Musa (PW10)

(f). DAC 352/96 Jamaludin bin Hashim (PW7)

2.The cheating charges were identical in form except for the names of the victims. The charge in DAC 16750/95 is set out below:

You, Rahj Kamal Bin Abdullah @ Murugesan Rajendran

NRIC NO 0106200Z,

are charged that you, on or about 7 December 1992, in Singapore, being a director of CDA International Pte Ltd (the Company), did cheat one Salim bin Salleh by deceiving him into believing that if he enters into an associate agreement with the Company to provide an interest free personal collateral loan of a sum of S$30,000 and pays the said sum to the Company, the Company would pay him in return guaranteed `goodfaith gifts` of S$3,000 every month for an unlimited period of time commencing four months after the signing of the said agreement, and a guaranteed refund of the S$25,000 in four instalments pursuant to the said agreement, when in fact you did not have the intention to cause the Company to fully honour the said payments, and by that deception dishonestly induced Salim bin Salleh into delivering a sum of S$30,000 to the Company, and you have thereby committed an offence punishable under s 420 of the Penal Code (Cap 224).

3.The fraudulent trading charges were also identical in form except for the names of the victims and the amounts the victims had paid to CDA International Pte Ltd (the Company). The company - CDA International Pte Ltd - was incorporated on 24 January 1992 with two directors, namely the appellant and PW13. Both of them were the only two shareholders, each holding a $1 share. In DAC 16753/95, the charge was as follows:

You, Rahj Kamal Bin Abdullah @ Murugesan Rajendran

NRIC NO 0106200Z,

are charged that you, around November 1992, in Singapore were knowingly a party to the carrying on of the business of CDA International Pte Ltd (the Company), being a business carried on for the fraudulent purpose of inducing one Hussain bin Mohammed to provide, pursuant to an associate agreement with the Company, an interest free personal collateral loan of a sum of $30,000 to the Company, in return for which the said Hussain bin Mohammed would receive from the Company guaranteed `goodfaith gifts` of $3,000 every month for an unlimited period of time commencing four months after the signing of the said agreement and a guaranteed refund of $25,000 in four instalments pursuant to the said agreement, which the Company had no intent to fully honour, and you have thereby committed an offence punishable under s 340(5) read with s 340(1) of the Companies Act (Cap 50, 1990 Ed).

With respect to DAC 352/96, the variations related to the following: the interest free personal collateral loan to the Company was for a sum of $25,000; the guaranteed refund was in full; and the goodfaith gifts matured sooner - three rather than the usual four months after the signing of the agreement.

4.At the end of the trial, the district judge convicted the appellant of all six charges and sentenced him to two years` imprisonment on each charge. The sentences in DAC 16750/95 and DAC 16753/95 were to run consecutively while the other sentences were to run concurrently. This made a total of four years` imprisonment to commence upon the expiry of the current sentence which the appellant was serving. The appellant appealed against the convictions and sentences. I dismissed the appeal and at the same time ordered the sentences in four charges to run consecutively, with the other sentences to run concurrently, making a total of eight years` imprisonment. I now give my reasons.

5. The prosecution`s case

Although the six charges were framed under different sections, the prosecution`s case rested on the Directorship Programme (DP) designed by the appellant. The essence of the scheme was that in exchange for either a $30,000 or $25,000 `interest free personal collateral loan` to the Company, a participant would be guaranteed `goodfaith gifts` of $3,000 per month for an indefinite period of time. There was also the assurance that the original loan sum or a large part of it would be returned within two years. All the agreements were evidenced by a printed document with the logo of the company and with the word `directorship` typed on it. They were produced, admitted and marked as follows: (a). PW14`s agreement P38

(b). PW6`s agreement P21

(c). PW12`s agreement P30

(d). PW9`s agreement P34

(e). PW10`s agreement P22

(f). PW7`s agreement P25

The appellant`s signature appeared on (a), (d) and (f) as representing the company while the remaining three documents were signed by one Mohamad Sanip bin Ali (PW8).

6. The scheme

The prosecution witness who had the earliest involvement with the scheme was Noorrashid bin Musa (PW13). He first came to know of the appellant sometime in 1991 when he was introduced by a friend to him. PW13 was offered a job as a tutor by the appellant and was also asked to join a fabulous programme. PW13 paid $50 to obtain some brochures and later went to attend a seminar conducted by the appellant at the Golden Landmark Hotel. The appellant was a charismatic and influential speaker who spoke on his `Time and Management` programmes and his desire to provide jobs for the Malay community. PW13 was very impressed and soon joined a non-fixed deposit programme where he would get a 5% monthly return for his investment of $5,000 and a 5% commission for every person he could recruit to join the programme. The company which ran this programme was one DFM company.

7.PW13 was initially worried that he might not get his returns. To reassure PW13, the appellant swore on the Koran that he would take care of PW13 and his family. The appellant subsequently formed a sole proprietorship known as Concierge Dynamics Associates (CDA) and transferred all DFM agreements to CDA. PW13 then became actively involved in the recruiting of members and the collection of funds. There was no tangible business run by CDA save for the non-fixed deposit programmes and the conduct of Basic Compulsory Training 1 and 2 (BCT). It was not compulsory to attend these classes and they were not conducted systematically. The point of these classes was to recruit more participants and to get participants to upgrade by putting in more money and earning better returns and commissions.

8.The appellant subsequently instructed PW13 to register a new firm known as Venture Concierge Associates (VCA) in partnership with one Junita bte Ibrahim in November 1991. Thereafter members of CDA were asked to transfer their investments to VCA. Members were also encouraged to top up their investments in order to obtain a higher return. VCA ran the same business programme as CDA with no tangible business. More businesses were also registered in the names of other recruits: Darham Management Associates in the names of Mohamad Sanip bin Ali (PW8) and one Shamsul Bahrin bin Shaari; and Proton Management Consultants in the name of Mohamed Hishamudin bin Sapinge. After VCA had been active for some time, the appellant instructed all investments to be transferred to Darham. The appellant also brought PW13 and other associates to different countries in the region such as the Philippines, Indonesia and Malaysia to conduct seminars and to recruit new members.

9.Over time, the non-fixed deposit programme was improved. The DP was started. Both PW6 and PW10 who did clerical work for the appellant gave evidence that it was the appellant who came up with the idea, and the programme was implemented and further explained under his instructions. For an interest free personal loan of $30,000 to the company, the benefit was a return of $3,000 every month after the third month forever, and a refund of $25,000 progressively. PW7 and PW12 gave evidence that during the classes, the appellant would induce them to join the DP by promising all directors a car of their own. The appellant also told them that at the end of the course, each associate could choose the business he wished to go into, financed by the money collected.

10.Initially the appellant would receive the money first before signing the agreements. At a later stage, he authorised PW13 and PW8 to receive the money and gave instructions for PW6 and PW10 to see him, P13 and PW8 in that order for signature of the DP agreements. All funds collected by PW13, PW8 or other associates under such programmes were given to the appellant personally, to his personal assistant or deposited into his bank account. The appellant would also be given a list of all the new recruits. PW13 testified that he allowed the appellant to keep all the money as the latter was the brain-child of all these programmes and had run the programme successfully for the past 10 years. PW6, PW8 and PW13 gave evidence that at the end of every month, a list would be compiled to inform the appellant as to the amount of goodfaith gifts due for each month. The appellant would vet and approve the payment before transferring money to the accounts of VCA or Darham after which PW13 and PW8 would use the money to pay out the goodfaith gifts, the rentals, the overheads and other expenses.

11.No tangible business which could generate profits was carried out by the Company or any other companies under the umbrella of this set-up. PW8, PW10, PW12 and PW14 all gave evidence that they saw no business other than the recruitment of participants for the...