Tan Kim Hock Anthony v PP

• Jurisdiction: Singapore
• Judgment Date: 21 February 2014
• Date: 21 February 2014
• Docket Number: Magistrate's Appeals Nos 122/2013/01 and 122/2013/02
• Court: High Court (Singapore)

Tan Kim Hock Anthony

Plaintiff

and

Public Prosecutor and another appeal

Defendant

[2014] SGHC 32

Chan Seng Onn J

Magistrate's Appeals Nos 122/2013/01 and 122/2013/02

High Court

Administrative Law—Natural justice—Excessive judicial interference—Whether trial judge's interference at trial gave rise to possibility of denial of justice—Whether safe to uphold conviction

Criminal Law—Offences—Property—Criminal breach of trust—Former principal using school funds to renovate residence of religious order—Both school and residence part of same religious order—Whether former principal committed criminal breach of trust by servant—Whether former principal was dishonest—Sections 23, 24 and 408 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Law—Offences—Property—Criminal breach of trust—Former principal using school funds to renovate residence of religious order—School was unincorporated association—Whether former principal committed criminal breach of trust by servant—Whether former principal was ‘servant’ of school—Section 408 Penal Code (Cap 224, 2008 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Benchmark sentences—Whether trial judge correct to adopt sentence imposed for offence under s 406 Penal Code as benchmark for offence under s 408 Penal Code—Sections 406 and 408 Penal Code (Cap 224, 2008 Rev Ed)

The appellant was the former Principal of Maris Stella High School (‘the School’). He was charged with the offence of criminal breach of trust by a servant under s 408 of the Penal Code (Cap 224, 2008 Rev Ed) for dishonestly misappropriating, via six cashier's orders between 27 March 2009 and 10 September 2009, the sum of $67,679.05 from the School's Chapel Building Fund account (‘the Chapel Fund account’). He used this sum to pay for certain expenses incurred in renovating Champagnat House, which was the official residence of the Marist Brothers in Singapore. The Marist Brothers was an international Catholic religious order which founded the School, and the appellant was himself a Marist Brother. The trial judge convicted the appellant and sentenced him to five months' imprisonment. The appellant subsequently appealed against both his conviction and sentence while the Prosecution cross-appealed against sentence.

The appellant sought to set aside his conviction on two grounds. First, the appellant submitted that the elements under s 408 of the Penal Code were not satisfied. In particular, he argued that his acts of misappropriation were not dishonest and, further, that he was not a ‘servant’ of the School since it was unincorporated at the material time and could not have entered into an employment contract with him. Secondly, the appellant submitted that it was unsafe to uphold the conviction because the trial judge's excessive interference during the trial gave rise to apparent, if not actual, bias.

Regarding the sentence of five months' imprisonment, the appellant submitted that this was manifestly excessive and that a nominal custodial sentence would suffice. The Prosecution, however, submitted that the sentence was manifestly inadequate, arguing that the starting point for sentencing here had to be a term of six months' imprisonment as was imposed in Goh Kah Heng v PP[2010] 4 SLR 258 (‘Shi Ming Yi’), since the present case shared many similar features with Shi Ming Yi.

Held, dismissing both the appeal against conviction and sentence and the cross-appeal against sentence:

(1) A man was dishonest in the criminal context if he intended, by unlawful means, to cause ‘wrongful gain’ to one person or ‘wrongful loss’ to another: at [5] .

(2) The appellant intended to cause ‘wrongful loss’ to the School. The evidence established that, at the time of the offence, the appellant knew that the Chapel Fund account was intended for a specific school-related purpose that was unconnected with Champagnat House, and that approval from the Board of Management (‘BOM’) was required before he could use moneys in that account. Therefore, it was disingenuous for the appellant to claim that he had thought it permissible for there to be a loose intermingling of funds for the use of the School and Champagnat House merely because they advanced the same cause and had a common root in Rome: at [9] and [12] .

(3) The appellant's claim that he had always treated his salary as belonging to the Marist Brothers - and thus he could not, by his misappropriation, have intended to cause ‘wrongful gain’ to himself in the form of personal savings - was not supported by the evidence. The appellant stopped contributing his salaries to the Marist Brothers between 2006 and 2009 to secure his own welfare in his old age. Therefore, by the time of the offence, the appellant considered his personal funds as standing separate and apart from the Marist Brothers. Accordingly, the trial judge was justified in finding that the appellant had applied the misappropriated sum towards Champagnat House so that he could avoid making those payments out of his own pocket: at [15] and [16] .

(4) Although the School was unincorporated, this did not mean that it could not employ the appellant as its Principal. The appellant was thus a ‘servant’ under s 408 Penal Code: at [19] .

(5) When faced with an allegation of excessive judicial interference, the ultimate question for the court reviewing the propriety of proceedings below was whether or not there had been the possibility of a denial of justice to a particular party (and, correspondingly, the possibility that the other party had been unfairly favoured): at [21] .

(6) There was no reason to fault the trial judge's intervention of the appellant's examination-in-chief (‘EIC’). Regarding the timing of this intervention, s 167 of the Evidence Act (Cap 97, 1997 Rev Ed) clearly provided that a trial judge could ask any question he pleased ‘at any time’ to discover or obtain proper proof of relevant facts; hence the trial judge here was not constrained to ask questions only after the appellant's EIC had reached a more advanced stage or was concluded. Regarding the trial judge's sustained questioning of the appellant, this arose largely because the appellant's explanations of why he had not informed the BOM of the Chapel Fund account kept shifting during the course of the questioning and because he struggled to give a plausible explanation to satisfy the trial judge's queries: at [24] and [25] .

(7) The trial judge's intervention of PW 3's cross-examination was not improper. The trial judge had difficulties following how defence counsel's cross-examination of PW 3 was relevant, hence it was sensible for him to ask defence counsel to explain the thrust of his questioning to avoid prolonging the trial unnecessarily: at [28] .

(8) The trial judge intervened in PW 4's cross-examination merely to make the point that the defence's position at trial - which was that the appellant was authorised to use the School's funds even for non-school purposes - appeared to be somewhat unrealistic. The trial judge's preliminary observation at this stage of the trial should not be confused with him having made a conclusive predetermination on its merits. Ultimately, what was of importance was that defence counsel was not prevented from continuing with his chosen line of cross-examination: at [31] .

(9) The trial judge adopted a starting point of four months' imprisonment for the s 408 Penal Code offence here after noting that only four out of the six months' imprisonment term imposed in Shi Ming Yi was for the analogous criminal breach of trust offence under s 406. However, the trial judge should not have adopted the sentence imposed for a s 406 offence as the appropriate benchmark for a s 408 offence because the latter was an aggravated form of the former: at [35] and [36] .

(10) While the sentence of five months' imprisonment was therefore somewhat lenient, it was not manifestly inadequate in light of the appellant's contributions to the School and to society in general, his advanced age, and the fact that he was a first-time offender: at [37] to [42] .

(11) A nominal custodial sentence was wholly inappropriate. That marginalised what should be at the centre of a sentencing judge's mind where offences involving criminal breach of trust were concerned - deterrence in both its specific and general aspects. As the trial judge found that the appellant misappropriated public funds from a public institution, the manner of his misappropriation was premeditated, and the misappropriated sum of $67,679.05 was by no means small, a sentence of five months' imprisonment was not manifestly excessive in the circumstances: at [43] and [44] .

Edward Alfred Braham v R [1994] NTCCA 60 (refd)

Goh Kah Heng v PP [2010] 4 SLR 258 (refd)

Khoo Jeffrey v Life Bible-Presbyterian Church [2011] 3 SLR 500 (refd)

Krishnan Chand v PP [1995] 1 SLR (R) 737; [1995] 2 SLR 291 (refd)

Mohammed Ali bin Johari v PP [2008] 4 SLR (R) 1058; [2008] 4 SLR 1058 (folld)

Ng Chee Tiong Tony v PP [2008] 1 SLR (R) 900; [2008] 1 SLR 900 (refd)

PP v Tan Cheng Yew [2013] 1 SLR 1095 (refd)

Charities Act (Cap 37, 2007 Rev Ed)

Evidence Act (Cap 97, 1997 Rev Ed) s 167 (consd)

Penal Code (Cap 224, 2008 Rev Ed) ss 23, 24, 408 (consd) ;ss 406 to 409

Peter Low and Choo Zheng Xi (Peter Low LLC) for the appellant in MA 122/2013/01 and the respondent in MA 122/2013/02

Kwek Chin Yong and Joshua Lai (Attorney-General's Chambers) for the respondent in MA 122/2013/01 and the appellant in MA 122/2013/02.

Judgment reserved.

Chan Seng Onn J

Introduction

1 The appellant, Brother Tan Kim Hock Anthony, was the former Principal of Maris Stella High School (‘the School’) for 25 years from 1984 to 2009. He was charged with the offence of criminal breach of trust by a servant under s 408 of the Penal Code (Cap 224, 2008 Rev Ed) for having dishonestly misappropriated, via six cashier's orders between 27 March 2009 and 10 September 2009, the...