Tan Hung Yeoh v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 03 May 1999
• Neutral Citation: [1999] SGHC 116
• Citation: [1999] SGHC 116
• Defendant Counsel: RG Neighbour (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Irving Choh (Wong Poartnership)
• Date: 03 May 1999
• Docket Number: Magistrate's Appeal No 202 of 1998
• Court: High Court (Singapore)
• Subject Matter: Findings of fact,Evidence,relating to immaterial details,Weight of evidence,Whether appellant's own lie can be corroborative evidence of guilt,Witnesses,Whether appellant participating, concurring or taking any positive step in fraudulent transactions,Whether appellant having actual knowledge of fraudulent transactions,Whether appellate court will disturb findings of fact based on witnesses' veracity and credibility,s 116 illustration (b), s 135 Evidence Act (Cap 97, 1997 Ed),Whether such discrepancies renders testimonies unreliable,Assessment of witnesses' veracity and credibility,Evidence of accomplice,Appeal,Corroboration,s 340 (5) Companies Act (Cap 50, 1994 Ed),Whether court will convict accused if accomplice's evidence uncorroborated,Treating with caution uncorroborated evidence,Criminal Procedure and Sentencing,Companies,Discrepancies in witnessess' testimonies,Whether appellant knowingly a part to the carrying on of company's business with intent to defraud creditor,Directors,Liabilities

Judgment:

YONG PUNG HOW CJ

The charge

1.The appellant was charged under s 340(5) of the Companies Act (Cap 50, 1994 Ed) (`the Act`) in that between 5 February 1993 and 2 April 1993, he was knowingly a party to the carrying on of the business of Hong Siong Motor Credit Trading Pte Ltd (`Hong Siong`) with the intent to defraud one of Hong Siong`s creditors, namely, Chuan Petroleum Pte Ltd (`Chuan Petroleum`), whereby Hong Siong placed four orders with Chuan Petroleum for the delivery of marine gas oil and marine fuel oil, thereby incurring a debt of $643,153.93 (of which $428,233.14 still remains outstanding), which Hong Siong had no intention of repaying at the time the debt was incurred.

2.The appellant was initially jointly tried with a co-accused, one Fong Chiong Kong (`Fong`) on one charge under s 340(5) of the Act. Fong subsequently pleaded guilty in a separate court to two amended charges, namely, (i) using, while being an officer of Hong Siong, deceitful or fraudulent or dishonest means to induce Chuan Petroleum to give credit to Hong Siong in contravention of s 406(a) of the Act; and (ii) failing, while being a director of Hong Siong, to act honestly and use reasonable diligence in the discharge of the duties of his office in contravention of s 157(1) of the Act. Fong was fined $15,000 and $5,000 on the two amended charges respectively. The present trial thereafter proceeded against the appellant solely on the above charge.

3.At the end of the trial, the trial judge found the appellant guilty of the charge and convicted him accordingly. The appellant was fined $ 15,000 and ordered to pay prosecution costs agreed at $17,000 and a compensation sum fixed at $150,000. The appellant appealed against his conviction and sentence. After hearing submissions from counsel for the appellant and the DPP, I dismissed the appeal. I now give my reasons.

4. The prosecution case

The evidence adduced by the prosecution was mainly as follows. On 24 September 1993, Hong Siong went into liquidation under a compulsory winding up action. The directors of Hong Siong were one Ng Kim Thye (`Ng`) and one Ong Chin Ong (`Ong`). The registered principal activities of Hong Siong at all material times were those of motor vehicles and motor finance. It was undisputed that prior to its liquidation, Hong Siong had between 5 February 1993 and 9 March 1993 entered into four contracts to purchase consignments of marine oil from Chuan Petroleum. Upon taking delivery from Chuan Petroleum, Hong Siong had then resold the oil to other parties. The oil purchased under the first three contracts with Chuan Petroleum were resold by Hong Siong to Global Energy (Asia) Pte Ltd (`Global Energy`) while the oil under the fourth contract was resold to South Eastern Oil. The re-sale of the oil consignments all took place at a loss to Hong Siong, with the total loss suffered by Hong Siong in respect of the four transactions being $42,166.51. It was further undisputed that Hong Siong was fully paid by the end buyers (viz Global Energy and South Eastern Oil) in respect of the re-sale transactions. On the other hand, except for the first contract, Hong Siong did not pay Chuan Petroleum fully for the remaining contracts. The total sum owing from Hong Siong to Chuan Petroleum stood at $428,233.14.

5.The prosecution`s case was that the business of Hong Siong was carried on fraudulently with the intent to defraud a creditor of Hong Siong, namely, Chuan Petroleum, and that the appellant was knowingly a party to such a business. In the early stages of the trial, counsel for the defence had conceded that the transactions between Hong Siong and Chuan Petroleum were carried out by Hong Siong fraudulently with the intent to defraud Chuan Petroleum, hence dispensing with any requirement for formal proof. The issue at trial was thus narrowed to whether the appellant was knowingly a party to the fraudulent transactions of Hong Siong.

6.The prosecution contended that the appellant was knowingly a party to the fraudulent transactions involving the purchase by Hong Siong of oil from Chuan Petroleum. The prosecution`s principal witness was Fong. Fong testified that Hong Siong started dealing in oil after one James Tay introduced it to Ng and him. He said that as Ng lacked the necessary capital, the appellant was approached. Fong testified that at a meeting in early 1993 involving the appellant, Fong, Ng and Ong, it was agreed that Hong Siong would buy marine oil from Chuan Petroleum. The oil would then be sold to the appellant`s contacts and the resultant proceeds would be divided amongst the 4 parties. It was agreed that Ng and the appellant would each take 40% of the commission arising from the oil transaction while Ong and Fong would get 20% and 3% respectively. It was further agreed that the appellant would be responsible for coming up with the upfront money for the purchases, on the condition that he would get 10% interest on whatever amount he forked out. It was agreed that the appellant would be paid the money he put upfront, regardless of whether there was any profit.

7.Fong testified that pursuant to the scheme, the appellant paid the $50,000 deposits due to Chuan Petroleum under the first and second contracts. The appellant also paid the balance sum of $100,000 due to Chuan Petroleum under the first contract. Fong said that the appellant and one Zainal Abideen (`Zainal`) were the ones who collected the proceeds from Global Energy after each re-sale. Fong further testified that there was one occasion on which he went down to DBS World Trade Centre (`WTC`) to meet the appellant, Ng and Zainal, expecting to be paid some commission, when a quarrel broke out between Ng and the appellant, resulting in a near fight between the two. He was informed by Zainal that the quarrel was over a sum of $30,000 which Ng claimed was due to him from the appellant. Fong further testified that, on another occasion when he went with the appellant, Ong and Zainal to DBS Parkway Parade to withdraw some money from Hong Siong`s account, a sum of $209,000 was withdrawn and handed to the appellant.

8.The prosecution also relied on the evidence of Zainal Abideen (`Zainal`). Zainal worked as a general manager for Hong Siong from January to April 1993. He testified that Fong and the appellant alone handled the oil transactions with Chuan Petroleum. He said that the appellant once brought him to Global Energy`s office to introduce him to the staff of the company. On that occasion, he was asked to bring along a receipt book to authenticate his identity as representative of Hong Siong. He was given a cash cheque at Global Energy, which he later encashed and a sum of $70,000 was eventually paid into the appellant`s wife`s bank account. He also remembered another occasion when the appellant accompanied him to a bank to withdraw money. Over $50,000 was withdrawn and given to the appellant. On that occasion, a misunderstanding developed between the appellant and Ng which almost led to a fight between the two. Zainal further testified that the appellant had on another occasion provided him with the sum of $104,920.79 which he then handed to Vanessa Low of Chuan Petroleum. On that occasion, the appellant had travelled all the way to Lavender Street, near Chuan Petroleum, to pass the money to him.

9.Apart from the testimonies of the above witnesses which showed the appellant`s direct connection with the fraudulent transactions, the prosecution also relied on various circumstantial evidence which they claimed proved the appellant`s involvement in the fraudulent schemes. Firstly, it was undisputed that Hong Siong had on 23 March 1993 paid Chuan Petroleum $104,920.79 by way of a cash cheque in settlement of the balance sum due under the first oil contract. The prosecution pointed out that it was no mere coincidence that, on the very same day, the appellant encashed his own cheque for the sum of $100,000 from his own account. The inference which the prosecution sought to draw was that the payment of the $104,920.79 was financed by the appellant, consistent with Fong`s testimony that the appellant was responsible for coming up with the capital for the purchases from Chuan Petroleum.

10.The prosecution also pointed out that the appellant`s signature appeared on a payment voucher of Global Energy dated 15 March 1993. Indeed, the appellant admitted to collecting a DBS cheque in the sum of $50,374.69 from Global Energy on Hong Siong`s behalf, and to signing the payment voucher. This, the prosecution submitted, again showed that the appellant was involved in the oil transactions.

11.The prosecution also alluded to the various payments made by Hong Siong to the appellant. First, there was the issuance of a cheque of $22,000 by Hong Siong to a courier of the appellant whom the appellant admitted he had sent to Hong Siong to collect payment. It was undisputed that this cheque was encashed by the courier and $18,000 was deposited into a DBS AutoSave account jointly held by the appellant and his wife. Further, on 6 March 1993, Global Energy paid Hong Siong a sum of $72,778.92, being payment of the balance sum owing under the second re-sale contract between Hong Siong and Global Energy. Statements of the appellant`s joint account with his wife showed that on the same day $67,000 was deposited into the joint account. The prosecution`s case was that such payments substantiated their contention that the appellant had been actively involved in Hong Siong`s scheme to defraud Chuan Petroleum and that the above sums received by the appellant represented his share of the profits from the scheme.

12. The defence

The appellant`s defence was a complete denial of any knowledge of the oil transactions between Chuan Petroleum and Hong Siong on one hand and Hong Siong and Global Energy and South Eastern Oil on the other. He claimed that his only dealings with Hong Siong involved two unsuccessful attempts to...