Raj Kumar s/o Brisa Besnath v PP

• Jurisdiction: Singapore
• Judge: Vincent Hoong J
• Judgment Date: 15 March 2021
• Docket Number: Magistrate's Appeal No 9011 of 2020/01
• Year: 2021
• Court: High Court (Singapore)

Raj Kumar s/o Brisa Besnath

and

Public Prosecutor

[2021] SGHC 57

Vincent Hoong J

Magistrate's Appeal No 9011 of 2020/01

General Division of the High Court

Criminal Law — Offences — Property — Criminal breach of trust — Identity of party entrusting property to accused was unknown — Whether identity of party entrusting property to accused had to be established and known to accused — Whether principle of consensus ad idem relevant to establishing entrustment — Whether party with mere possessory rights to property could entrust such property to accused — Whether element of entrustment in offence of criminal breach of trust made out — Sections 405 and 406 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Appeals — Whether sentence imposed by trial judge manifestly excessive — Whether trial judge committed error of law when sentencing accused

Held, dismissing the appeal:

(1) On a purposive reading of s 405 of the Penal Code, “entrusted” did not require the entrusting party's identity to be proven and known to the accused: at [39].

(2) From the elements of CBT disclosed in the text of s 405 itself, the provision's object was to criminalise the dishonest abuse of trust reposed in a person in relation to property. It was this knowing or intentional betrayal of an initial trust placed in the accused person which the law did not condone. Extraneous materials originating from the Law Commission of India tasked with drafting the Indian Penal Code (Act No 45 of 1860) (India) (“IPC”) and the Commissioners on the Criminal Law of England, who drafted a digest of proposed criminal laws (“Digest”), also confirmed that the gravamen of CBT and embezzlement (offences which were equivalent to each other), in the IPC and Digest respectively, was the accused person's dishonesty in betraying the terms of entrustment: at [29], [35] and [36].

(3) Given the object of CBT was to punish an accused person's dishonest betrayal of the terms of entrustment, entrustment was established if the appellant received possession of the property with the knowledge that: (a) the entrusting party had, at least, possessory rights to the property; and (b) that he was to deal with the property in the manner instructed by the entrusting party (“the terms of the entrustment”): at [42].

(4) The principle of consensus ad idem in civil law should not be imported into criminal law in this case, given how the charge was framed (ie, as a dishonest misappropriation of property). Accordingly, the court was not concerned with whether a valid and binding contract was formed between the appellant and Maria. Having regard to the object of s 405 of the Penal Code, the court was concerned with whether the appellant misappropriated the money in a dishonest manner, ie, in contravention of the terms of the entrustment: at [56].

(5) In this case, the appellant was entrusted with $81,000 by Maria when he received the money from Melody. He knew he was to deal with the money in accordance with Maria's instructions, and that Maria minimally had possessory rights to the money and therefore the authority to impose the terms of the entrustment on him: at [62] to [65].

(6) Having considered the plain language and the object of s 405 of the Penal Code, there was no reason to depart from the holding in Pittis Stavros v PP[2015] 3 SLR 181 that the entrusting party did not need to legally own the property so long as the entrusting party had some right to the property, including a bare possessory right: at [66] and [67].

(7) The sentence imposed was not manifestly excessive and the DJ did not fail to consider any relevant legal principles when sentencing the appellant: at [75].

Case(s) referred to

AG v Ting Choon Meng [2017] 1 SLR 373 (folld)

Assathamby s/o Karupiah v PP [1998] 1 SLR(R) 1030; [1998] 2 SLR 744 (folld)

Gopalakrishnan Vanitha v PP [1999] 3 SLR(R) 310; [1999] 4 SLR 307 (folld)

Ho Man Yuk v PP [2019] 1 SLR 567 (refd)

Hon Chi Wan Colman v PP [2002] 2 SLR(R) 821; [2002] 3 SLR 558 (refd)

Nation Fittings (M) Sdn Bhd v Oystertec plc [2006] 1 SLR(R) 712; [2006] 1 SLR 712 (folld)

Pittis Stavros v PP [2015] 3 SLR 181 (folld)

PP v Koh Mui Hoong DAC 45208/2013 and others (distd)

PP v Lam Leng Hung [2017] 4 SLR 474 (refd)

PP v Lim Sim Hong DAC 915705/2015 and others (distd)

PP v Tan Fook Sum [1999] 1 SLR(R) 1022; [1999] 2 SLR 523 (folld)

R v Tan Ah Seng [1935] MLJ 273 (refd)

Som Narth Puri v State of Rajasthan 1972 AIR 1490 (refd)

Tan Cheng Bock v AG [2017] 2 SLR 850 (folld)

Wong Seng Kwan v PP [2012] 3 SLR 12 (distd)

Facts

The accused claimed trial to a charge of criminal breach of trust (“CBT”) under s 406 of the Penal Code (Cap 224, 2008 Rev Ed) involving the dishonest misappropriation of $81,000. While using an online platform, which the accused referred to as an “adult finder”, he came across a persona called “Maria Lloyd” (“Maria”). Maria's true identity remained unknown at all times. The accused agreed to receive some money on behalf of Maria from someone in Singapore, and to hand it over to a man in Malaysia. Pursuant to Maria's instructions, the accused received $81,000 from one Melody Choong (“Melody”) in Singapore. However, the accused pocketed the $81,000 and failed to deliver it to the man in Malaysia as promised.

The district judge (“DJ”) below agreed with the Prosecution that the accused had received the moneys from Melody, and that such moneys were entrusted to the accused by Maria within the meaning of s 405 of the Penal Code. The accused was convicted and sentenced to 13 months' imprisonment.

The appellant appealed against his conviction and sentence. Primarily, the accused challenged his conviction by arguing that he could not have been entrusted with the moneys because Maria's identity remained unknown. It was contended that an entrustment created by Maria's fraud and deceit, in respect of his/her true identity, was not valid or legally recognisable. In response, the Prosecution argued that establishing the identity of the party entrusting property to the accused (“the entrusting party”) was not an element of criminal breach of trust as defined under s 405 of the Penal Code. Further, requiring the entrusting party's identity to be proven would lead to an absurd outcome where offenders were permitted to escape criminal liability solely because the source of the entrusted property could not be traced to a specific person.

Legislation referred to

Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) s 47(6)(a)

Interpretation Act (Cap 1, 2002 Rev Ed) ss 7A(a), 9A(1), 9A(2), 9A(3)

Penal Code (Cap 224, 2008 Rev Ed) ss 405, 406 (consd); ss 24, 182, 405–409, 408

Indian Penal Code, The (Act No 45 of 1860) (India) s 405

Anand George (BR Law Corporation) for the appellant;

Stacey Anne Fernandez and Ong Xin Jie (Attorney-General's Chambers) for the respondent.

15 March 2021

Judgment reserved.

Vincent Hoong J:

1 In the court below, the accused claimed trial to a charge of criminal breach of trust (“CBT”) under s 406 of the Penal Code (Cap 224, 2008 Rev Ed) involving the dishonest misappropriation of $81,000. The district judge (“DJ”) convicted the accused and sentenced him to 13 months' imprisonment (Public Prosecutor v Raj Kumar s/o Brisa Besnath[2020] SGDC 95 at [1]). The DJ's grounds of decision are reported as Public Prosecutor v Raj Kumar s/o Brisa Besnath[2020] SGDC 95 (“GD”). The accused is now appealing against his conviction and sentence. For the purposes of this judgment, the accused shall be referred to as “the appellant”.

2 Under s 405 of the Penal Code, an accused person must have been “entrusted with property, or with any dominion over property” [emphasis added]. This appeal raises an interesting question of whether the true identity of the party entrusting the appellant with the property in question (“the entrusting party”), ie, $81,000 must be ascertained in order to establish the element of entrustment in an offence of CBT. In the court below, the DJ answered in the negative. A secondary issue is whether the entrusting party must have legal ownership of the property entrusted.

Facts

3 Sometime in 2012, while using an online platform which he referred to as an “adult finder”, the appellant came across a persona called “Maria Lloyd” (“Maria”). The respondent accepts that Maria's actual identity remains unknown. The appellant and Maria began chatting via e-mail. Subsequently, the appellant agreed to receive $89,000 on Maria's behalf in Singapore and to hand it over to a man in Malaysia. The appellant was informed by Maria that someone would call him and pass him the money (GD at [4(a)]). About two days later, the appellant received a phone call from a lady named Melody Choong (“Melody”), who told him that she would be passing the money to him (GD at [4(a)]).

4 As to the provenance of the money that the appellant eventually received, Melody herself was acting on the instructions of an online persona known as “Jacques”. Jacques had arranged for Melody to meet one Sie Ming Jeong (“Sie”). On 8 March 2013, Sie received $83,578.50 into his bank account from another online persona known as “Maureen Othman” (“Maureen”). On Maureen's instructions, Sie withdrew $82,000 in cash to give to Melody. Later that day, Sie and Melody met at Mount Elizabeth Hospital (“the Hospital”), where Sie was working. In a visitor's lounge within the Hospital, Sie handed Melody an envelope containing cash amounting to $82,000, in thousand-dollar notes. Melody counted the money before leaving the Hospital.

5 Pursuant to their arrangement over the phone, the appellant and Melody met at the NEX shopping mall in Serangoon on 9 March 2013. There, the appellant received an envelope containing $81,000 from Melody (GD at [49], [55]). When contacted by Melody on 10 March 2013, the...