Syed Jafaralsadeg bin Abdul Kadir v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 07 September 1998
• Neutral Citation: [1998] SGHC 301
• Docket Number: Magistrate’s Appeal No 1 of 1998
• Date: 07 September 1998
• Published date: 19 September 2003
• Year: 1998
• Plaintiff Counsel: Edmond A Pereira and Shabbir I Chechatwala (Edmond Pereira & Partners)
• Citation: [1998] SGHC 301
• Defendant Counsel: Roy G Neighbour and Laura Low (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Subject Matter: Whether judge's assessment plainly wrong or against weight of evidence,Whether evidence apparently credible and has significant influence on outcome of the case,Previous inconsistent statement,Offences,Whether witness' previous inconsistent statement admissable as evidence,Relevance of other considerations influencing victim to purchase property,Whether evidence apparently credible and has significant influence on outcome of case,Elements of cheating,Admissibility of evidence,Whether victim's lack of loss relevant in establishing offence,Appeal,Evidence,Finding of fact based on trial judge's assessment of witnesses' credibility and veracity,Criminal Law,s 420 Penal Code (Cap 224),Whether more weight to be put on witness' reasons for inconsistences in statement,Whether appellant's deception induces victim to pay,Reversing finding of fact,Property,Cheating,On appeal,Whether appellant discharges burden of proving trial judge erred in not believing his version of facts,Factors to consider in admitting and accepting statement as truth,Conditions to satisfy,Appellant deceives victim into paying $50,000 as agent's commission in purchase of property,s 147(3) Evidence Act (Cap 97, 1997 Ed),Criminal Procedure and Sentencing,Whether payment of commission neither induced nor deterred victim from purchasing property of relevance in establishing cheating,Adducing fresh evidence,ss 257(1) & 268(1) Criminal Procedure Code (Cap 68)

Judgment:

1.YONG PUNG HOW CJ

Introduction

The accused was tried in the court below on one charge of cheating under s 420 of the Penal Code (Cap 224). The charge read as follows:

You, Syed Jafaralsadeg bin Abdul Kadir Alhadad

M/46 years, NRIC No 0073282/F

are charged that you, on or about 29 May 1993, in Singapore, did cheat one Azam Ali, a director of one Scan Electronics (S) Pte Ltd, by deceiving him into believing that a commission of S$50,000 was payable to an agent as the agent`s commission for the sale of a property known as No 13 Jalan Besar to the said Scan Electronics (S) Pte Ltd, when no such payment was payable as no agent was involved in the sale, and by that deception you dishonestly induced the said Azam Ali to deliver S$50,000 to you, and you have thereby committed an offence punishable under s 420 of the Penal Code (Cap 224).

The appellant was convicted and sentenced to 18 months` imprisonment at the end of the trial and ordered to pay prosecution costs of $21,142 to the Commercial Affairs Department. He appealed against his conviction. I dismissed his appeal for the reasons given below.

2. The prosecution`s case

The prosecution`s main witness was Azam Ali, (Azam), the person who had been cheated, and it was his version of events that formed the basis of their case. Azam testified that sometime in April/May 1993, he, on behalf of his company, Scan Electronics had shown interest in a shophouse at No 13 Jalan Besar (the property). As such, he testified that he had first called the appellant at the direction of one Syed Salim Alhadad (Salim) whose name he had found after conducting a title search on the title deeds of the Property at the Registry of Deeds. Azam first contacted the appellant by telephone and arranged a meeting with him. As it was his first dealing with property, Azam brought a friend along, Junaideen Mohamed Ashroff (Ashroff) for support. The price and the decision to sell were not discussed at this meeting. All this was corroborated by the testimony of Ashroff, who added that he was not involved in the purchase of the property after this meeting and that there were only three of them present at this meeting. Azam testified that the appellant did not tell him what his capacity was in dealing with the property.

3.A second meeting took place with the appellant and two of the appellant`s brothers and uncle, namely Syed Hashim, Syed Ibrahim Alhadad (Ibrahim) and Salim, along with two other persons. Again, nothing was confirmed, but Azam told the appellant that the property was to be bought by his company, Scan Electronics. A few days later, the appellant told Azam by telephone that the purchase price was $550,000 and that there was an agent`s commission of $50,000 to be paid. Azam testified that the impression given to him by the appellant was that there would be no deal if the $50,000 fee was not paid.

4.Subsequently, Azam called up the appellant to confirm that he was agreeable to the deal including the payment of the $50,000 commission despite his fellow director, Chow Kwok Seng`s (Chow) reservations about having to pay what was considered a high commission. This was done at a meeting at a restaurant in Arab Street on 18 May 1993 where only the appellant, Azam, Ibrahim and some other brothers of the appellant were present. Azam then received a `temporary option` but was told that another option would be issued to him upon the payment of the $50,000. There was no agent present at the meeting and, again, the appellant did not say who the agent was.

5.The next time Azam met up with the appellant was at the appellant`s house at Lorong Marzuki on 29 May 1993. Chow accompanied Azam to this meeting after they had both cashed a cheque of $50,000 drawn on Scan Electronics` account. This was done as the appellant had earlier specified that the payment should be in cash. Azam and Chow waited for some time in the verandah outside the house for the appellant who came in from the main gate. One of them then put the envelope containing the cash on the table that they were all sitting around. The agent was not present at this time. Later on, Syed Abdullah bin Alwi Alhadad (Abdullah), the alleged agent, arrived at the house through the main gate. The appellant then went into the house and brought out a piece of typed paper (P12) which constituted a receipt for the payment of the $50,000. As the paper said nothing about Azam getting back the money if the deal did not go through, Azam asked the appellant what would happen in those circumstances. The appellant then wrote the handwritten portion of P12.

6.Azam testified that he had never met Abdullah before and therefore there was no arrangement between himself and Abdullah that Abdullah was to act as Azam`s agent in this deal. The appellant had also not explained to Azam what capacity the appellant was acting in with regard to this deal. Azam added that he believed that the handwritten portion was a guarantee by the appellant that the appellant would return the money if the deal did not go through.

7.Azam went on to state that, although he had calculated that $600,000 was a good price to pay for the property, if he had known that there was actually no vendor`s agent involved, he would obviously not have been willing to pay the $50,000 agent`s commission.

8.As regards the document P12, Azam understood the word `I` found in it to refer to the appellant and not the agent in respect to the guarantee of repayment of the $50,000 in the event that the sale fell through. He reiterated that on 29 May 1993, he did not know that there was no agent involved. He only became aware of the scam when he came to court. To date, he has not made any demand for repayment of the $50,000 from the appellant.

9.It was established further that a payment voucher (P19) was issued by Scan Electronics to show that Azam had withdrawn the company`s money to pay the commission. Azam denied that the $50,000 was a bribe given to facilitate the purchase of the property, adding that in 1993 he did not have much experience in the sale and purchase of property. However, as managing director of Scan Electronics, he was assigned the task of looking for a suitable property for their office premises. Azam also explained why the $50,000 appeared in the company`s account as a director`s fee payable to himself rather than as commission. This was done as Chow had expressed reservations about the payment of this sum. Thus, Azam decided to take the risk of it on himself in the event that the sale fell through.

10.The district judge found that there was nothing sinister about this as a payment voucher was raised to evidence the arrangement with the company. A director`s resolution was also passed to approve this payment.

11.Chow`s evidence basically corroborated the evidence of Azam. Chow testified that Azam was in charge of the purchase of the property and confirmed that a cheque of $20,000 was made out by the company to Ibrahim. Chow added that he had not met the appellant apart from 29 May 1993 at the appellant`s house. His version of events matched that of Azam`s regarding what had taken place at Lorong Marzuki where the $50,000 was paid to the appellant. Chow said that upon seeing the receipt for the $50,000, both he and Azam felt that the words were not sufficient to protect their interest and thus he requested for the name and identity card number of the agent to be written down as well, reiterating that that this was done by the appellant. It was only after being given the receipt that he was introduced to the alleged agent, Abdullah. Chow clarified that this was the first time that he met Abdullah. Chow also added that their company had been willing to pay $600,000 for the property and found the price acceptable.

12.The other key witness in the prosecution`s case was Abdullah who is the first cousin of the appellant. The evidence that the prosecution relied on for its case was found in P15 which was a transcript of a statement given by Abdullah to the investigating officer in October 1995. In this statement, Abdullah gave a version of the events that took place on 29 May 1993 that corresponded with Azam and Chow`s testimonies. This included never having met either of them prior to the meeting at the appellant`s house on 29 May 1993 and never being handed the $50,000.

13.At the trial, however, Abdullah gave evidence-in-chief that differed materially from the statement he made to the investigating officer. He said that he met Azam some time in February 1993 at the appellant`s office where Azam informed him that he was very interested in the property. Azam then offered him $50,000 as a commission fee. Abdullah thus said that he arranged for Azam to meet Ibrahim. Apart from this, he did nothing else.

14.On 29 May 1993, Abdullah said that he met Azam again at the appellant`s office and asked for the commission fee of $50,000 from Azam. However, Azam said that he wanted the appellant to witness the payment and thus Azam and Abdullah drove to the appellant`s house together. Abdullah claimed that the appellant was not aware that Abdullah was going to receive the $50,000 until Abdullah told him at Lorong Marzuki. Abdullah said that he asked the appellant to be a witness to the payment and that the appellant wrote the handwritten portion on P12 as he was the witness. Abdullah signed P12 and collected the money from Azam upon which Abdullah counted the money and left. He claimed that he spent the money and did not bank it into any account. He added that he was not involved in any further dealing with the property. Abdullah stated that he had lied deliberately in his statement to the investigating officer, as he was worried that he would have to return the money.

15.The DPP applied to impeach Abdullah`s credit under s 157 of the Evidence Act (Cap 97, 1997 Ed) due to the material discrepancies between his earlier statement P15 and his evidence-in-chief. This was done and...