Tan Kim Hock Anthony v Public Prosecutor and another appeal

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 21 February 2014
• Neutral Citation: [2014] SGHC 32
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeals Nos 122/2013/01 and 122/2013/02
• Published date: 28 February 2014
• Year: 2014
• Hearing Date: 09 January 2014
• Plaintiff Counsel: Peter Low and Choo Zheng Xi (Peter Low LLC)
• Defendant Counsel: Kwek Chin Yong and Joshua Lai (Attorney-General's Chambers)
• Subject Matter: Criminal Law,Offences,Property,Criminal Breach of Trust
• Citation: [2014] SGHC 32

Chan Seng Onn J: Introduction

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 sum of $67,679.05 from the School’s Chapel Building Fund account (“the Chapel Fund account”) with United Overseas Bank (“UOB”). He used this sum to pay for certain expenses incurred in renovating Champagnat House, which is the official residence of the Marist Brothers in Singapore. By way of background, the Marist Brothers is an international Catholic religious order which founded the School, and the appellant himself is a Marist Brother.

The appellant was convicted on 24 April 2013 by the District Court and sentenced to five months’ imprisonment. He appealed against both conviction and sentence, while the Prosecution cross-appealed against sentence. After careful deliberation, I have decided to uphold the trial judge’s decision. I therefore dismiss both the appeal and cross-appeal. I now give my reasons.

Decision on conviction

I will deal first with the appellant’s conviction. Mr Peter Low (“Mr Low”), for the appellant, urged me to set it aside for the following reasons: First, the elements of the offence under s 408 of the Penal Code are not made out. In particular, Mr Low argued that the appellant did not have a dishonest state of mind at the time of his offence and, further, that he was not a “servant” for the purposes of s 408; and Second, even if the elements of the offence were established beyond a reasonable doubt, Mr Low argued that it was nevertheless unsafe to uphold the conviction because excessive judicial interference by the trial judge in the proceedings below had given rise to apparent, if not actual, bias. I will now address these two submissions in turn.

Have the elements of the offence been made out?

I agree with the trial judge that the elements of the s 408 offence have been proved beyond a reasonable doubt.

Dishonest misappropriation

When read in conjunction, ss 23 and 24 of the Penal Code clearly provide that a man has a dishonest state of mind in the criminal context if he intends, by unlawful means, to cause “wrongful gain” to one person or “wrongful loss” to another. For the appeal to succeed in the present case, Mr Low had to show that the trial judge was wrong to find that the appellant did intend to cause wrongful gain and wrongful loss when he withdrew monies from the Chapel Fund account to renovate Champagnat House.

Wrongful loss

Mr Low emphasised in his oral submissions that it was crucial for this court to appreciate how the appellant had viewed the relationship between the School and Champagnat House. He submitted that while the School and Champagnat House may have been formally separate entities, in the appellant’s mind, they were both united by a common purpose to serve the religious mission of the Marist Brothers in Singapore, which is to make Jesus Christ known and loved through the education of young people. To enable this court to draw the same connection, Mr Low emphasised the following factors. Firstly, that Champagnat House is the official residence of the Marist Brothers. Secondly, that the School was founded and continues to be run by the Marist Brothers. Thirdly, while the two plots of land on which Champagnat House and the School were built are registered in the names of different statutory corporations in Malaysia¹ and Hong Kong², these corporations share direct links with the Marist Brothers’ headquarters in Rome. In fact, in the course of this appeal, it emerged from Mr Low’s submissions that all the Marist Brothers’ missions worldwide were answerable to the Rome headquarters, whose controlling influence was not insubstantial.

It would thus appear that Champagnat House and the School were no more than local touchpoints through which the Marist Brothers manifested its presence and advanced its mission here. Both were in essence owned by the Marist Brothers. Against this backdrop, Mr Low then sought to persuade me that it was reasonable for the appellant, as a longstanding Marist Brother himself, to have thought that there was nothing untoward in his application of the monies in the Chapel Fund account towards the renovation works for Champagnat House, as both served, in their different ways, one and the same religious mission. On this view, the appellant could not have intended to cause any wrongful loss to the School because, by improving Champagnat House, he believed that he was thereby benefitting the religious mission which the School was a part of.

I am not convinced by Mr Low’s submissions. First, as the learned Deputy Public Prosecutor had quite rightly pointed out, the alleged direct links which both Champagnat House and the School had with the Rome headquarters were not canvassed at all before the trial judge. I am not inclined to accept this part of Mr Low’s submissions based on his mere say-so. In any case, while it may well be that, theoretically, the network of Marist Brothers around the world is answerable to the Rome headquarters, it scarcely accords with practical reality to say that this alone can engender the belief that funds from one entity can be used for the purposes of another without any prior authorisation. I am further fortified in my conclusion by the following facts that were found by the trial judge. Firstly, two of the Prosecution’s witnesses who were, significantly, the Local Superior of the Marist Brothers (PW4) and the Vice-Chairman of the School’s Board of Management (“BOM”) (PW6), testified that there was no “connection” between Champagnat House and the School³. Secondly, the appellant had himself admitted in cross-examination that he knew that the Chapel Fund account was only to be used for the School’s purposes and that the payments for the renovation works on Champagnat House had nothing to do with the School specifically⁴. It is hardly surprising to me that the appellant, having been the Principal of the School for so many years, was fully aware that the monies in the Chapel Fund account should not be used for the renovation works on Champagnat House. This must be the case because the trial judge had found that the monies in the Chapel Fund account came from public donations and the Ministry of Education ⁵ and, further, that the Chapel Fund account had a clear designated purpose as stated in the account opening letter, which was “for building a Memorial Chapel in Maris Stella High School”⁶. Thirdly, the appellant’s assertion at trial that he had a wide authority to manage the School’s finances was also found to be inconsistent with the extrinsic evidence, which showed that he knew that the approval of the Board of Management (“BOM”) was required before he could draw on the Chapel Fund account⁷.

The evidence adduced therefore undoubtedly establishes 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 BOM was required before he could use the monies in that account. In light of this, it is disingenuous for the appellant to now claim that he had thought, at the material time, that it was 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.

In the interest of completeness, I should briefly mention that Mr Low also submitted that the appellant had at all times intended to and did in fact reimburse the Chapel Fund account, and that this is therefore inconsistent with an intention to cause wrongful loss to the School. However, the learned trial judge had found that the timing and manner of the appellant’s reimbursement provided grounds for inferring that the reason for him doing so was to “cover up” his misappropriations to begin with⁸. I see no reason to disturb this finding.

Mr Low also highlighted the appellant’s track record during his lengthy tenure as Principal of the School. He referred to several testimonials that had spoken favourably of the appellant’s character. I was therefore invited to infer that such an outstanding individual could not conceivably have acted with the intention to harm the School for which he had sacrificed so much. While I do acknowledge the admirable contributions made by the appellant to the School and the wider education sector as a whole, I do not think that this alone can support the inference which Mr Low was inviting me to draw, especially in light of the various indicia that spoke of his guilty mind at the material time.

I am therefore in agreement with the trial judge’s finding that the appellant had intended to cause wrongful loss to the School at the time he used the monies in the Chapel Fund account to pay for the renovations to Champagnat House. The appellant was accordingly “dishonest” in his misappropriation of the monies.

Wrongful gain

Having already found that the appellant intended to cause wrongful loss to the School, there is strictly no need for me to consider whether he had also intended to cause any wrongful gain. This is clear from the plain wording of s 24 of the Penal Code, which provides that proof of intent to cause wrongful gain “or” wrongful loss would suffice for a finding of dishonesty. However, let me state briefly why I agree with the trial judge’s finding that the appellant was himself the intended beneficiary of a wrongful gain as a result of his unauthorised transactions, since Mr Low had taken issue with this point on appeal.

In the court below, the trial judge found that the appellant had agreed to pay for the...