Taw Cheng Kong v Public Prosecutor

• Jurisdiction: Singapore
• Judgment Date: 09 January 1998
• Date: 09 January 1998
• Docket Number: Magistrate's Appeal No 117 of 1997
• Court: High Court (Singapore)

Taw Cheng Kong

Plaintiff

and

Public Prosecutor

Defendant

[1998] SGHC 10

M Karthigesu JA

Magistrate's Appeal No 117 of 1997

High Court

Constitutional Law–Constitution–Interpretation–Part IV provision–Two-part approach–Determination of underlying rationale of fundamental liberty–Construction of scope of right by reference to Constitution of the Republic of Singapore (1985 Rev Ed, 1992 Reprint) read in its entirety–Article 12 Constitution of the Republic of Singapore (1985 Rev Ed, 1992 Reprint)–Constitutional Law–Equal protection of the law–Whether extraterritorial ambit of anti-corruption statute offending right to equal protection–Applicable test–Whether law prescribing different treatment amongst individuals–Whether discrimination founded on intelligible differentia–Whether persons falling into same class treated equally–Whether basis of discrimination bearing reasonable relation to object of statute –Purpose of extraterritorial reach of anti-corruption statute to prevent activities in Malaysia having effect on Singapore–Whether citizenship appropriate differentia–Whether nexus between objective and differentia justifying derogation from constitutional freedom–Section 37 Prevention of Corruption Act (Cap 241, 1993 Rev Ed)–Constitutional Law–Fundamental liberties–Inalienable right and not privilege enjoyed in exchange with State for certain conduct–Constitutional Law–Legislature–Parliament–Scope of legislative power–Ultra vires–Whether extraterritorial clause in statute ultra vires Parliament–Section 37 Prevention of Corruption Act (Cap 241, 1993 Rev Ed)–Section 6 (3) Republic of Singapore Independence Act 1965 (Act 9 of 1965)–Article 73 (a) Constitution of Malaysia–Criminal Procedure and Sentencing–Statements–Admissibility–Statements to investigating officers transcribed from handwritten form–Omissions and embellishments in transcription–Inconsistencies suggesting duress–Whether statements admissible–Whether statements made by accused–Criminal Procedure and Sentencing–Statements–Voluntariness–Inducement–Corrupt Practices Investigation Bureau officer not informing accused of right against self-incrimination–Whether right preserved or derogated from in view of legislative framework–Whether CPIB officer having duty to inform accused of such right–Distinction between investigation of Penal Code (Cap 224, 1985 Rev Ed) offences and non-Penal Code offences by CPIB officers–Sections 17 and 37 Prevention of Corruption Act (Cap 241, 1993 Rev Ed) –Section 121 Criminal Procedure Code (Cap 68, 1985 Rev Ed)–Evidence–Weight of evidence–Statements–Duress inferable from statements–Objective evidence not fully adduced by Prosecution–Whether adverse presumption to be drawn against Prosecution–Investigations not completed when accused charged–Objective evidence adduced materially inconsistent–Whether Prosecution discharging onus of proof

The appellant, a Singapore citizen, was a regional manager of the Government of Singapore Investment Corporation (“GIC”). He was based in Hong Kong, had charge of equity portfolios in Hong Kong and the Philippines and had authority to decide on which companies to invest in on behalf of the GIC. On the basis of statements made by the appellant to a GIC investigation officer (“the GIC statements”) and Corrupt Practices Investigation Bureau (“CPIB”) officers (“the CPIB statements”), the Prosecution submitted that the appellant had, at the instigation of Kevin Lee (“Lee”), Managing Director of Rockefeller & Co Inc's (“Rockefeller”) Far-East operations, orchestrated the purchase by GIC of certain counters in Hong Kong and Australia. For each transaction, Lee allegedly paid the appellant a large sum of money as a “placement fee” or an “incentive fee”. The records showed that all the share purchases were made through brokers. The probability of the appellant being able to garner placement fees of identical amounts from numerous vendors and then procuring the purchase of those particular vendors' shares through brokers (as opposed to directly buying the shares from the vendors themselves) was in fact very slight.

At a voir dire, the GIC statements and CPIB statements were admitted. Subsequent to the voir dire, however, new evidence surfaced indicating that the GIC investigation officer had made handwritten notes of the interviews, and prepared a typewritten “transcript” of the interview based on these. The appellant did not sign any of the handwritten or typewritten notes. It was the typewritten notes that constituted the GIC statements; they were tendered in evidence as confessions. The CPIB statements contained material inconsistencies. Several of these inconsistencies pertained to issues which were within the expertise of the appellant, giving the impression that the appellant was under duress when making them. The appellant also gave a s 122 (6) Criminal Procedure Code (Cap 68, 1985 Rev Ed) statement subsequently (“the separate s 122 (6) statement”) which of itself contained little by way of admission.

The appellant was tried and convicted of eight charges under s 6 read with s 37 of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“the Act”). Section 37 of the Act provided that where an offence under the Act was committed by a citizen of Singapore in any place outside Singapore, that person could be dealt with in respect of that offence as if it had been committed in Singapore.

The eight charges were framed with a large measure of assistance from documents forwarded by Rockefeller and minutes of a meeting between GIC and Rockefeller officers. However, these were not made available for the court's perusal. The Prosecution had other sources of evidence to proceed on, but these were not put in evidence. In relation to the first charge, the evidence adduced by the appellant suggest that the shares acquired by GIC were not sold by one of Lee's companies as the Prosecution had submitted, and so the appellant could not have profited from such a transaction. In relation to the sixth charge, the most the appellant could have stood to make from the attacked transaction was a percentage fee from the purchase of six million shares, a result inconsistent with particulars of the charge.

At trial, the Prosecution did not disclose the existence of the handwritten notes. It was only upon counsel for the appellant cross-examining the GIC investigating officer that the existence was revealed. Examination and comparison of these notes revealed that there had been substantial embellishment and paraphrasing in the typewritten notes. There were also omissions from the typewritten notes of what the appellant had told the GIC investigation officer which were found in the original handwritten ones; these omitted statements suggested that the appellant had been coerced by the CPIB into giving statements to them, and that his will had been eroded by his concern for his wife.

During cross-examination, a CPIB investigating officer admitted that the CPIB, having failed to secure an interview with Lee, who was being investigated by the authorities in Hong Kong, had not completed its investigations when it charged the appellant.

An expert witness gave evidence for the appellant that from his research in the Hong Kong Stock Exchange Library, there had been no major issues of shares or placements by principal shareholders during the periods in which the offences were allegedly committed. This rebutted the allegations made by the Prosecution that placement fees were received by the appellant. However, the district judge chose to focus on the expert witness's concession that certain individuals need not make announcements of their disposals of shares and the research could not show whether the shares of these companies had indeed been sold.

The appellant appealed against conviction on grounds that: (a) s 37 of the Act was unconstitutional; (b) the statements he gave to the CPIB and the GIC officers were wrongly admitted because they were given involuntarily; (c) even if the statements were admissible, they should have been given very little weight; and (d) any moneys he received were not received as corrupt gratification but as secret profits falling outside the scope of the mischief targeted by the Act.

To cast further doubt on the accuracy of the statements made by the appellant, including whether moneys had been received by the appellant, counsel adduced documents including “balance sheets” showing investments of and profits due to the appellant in his dealings with Lee, purportedly prepared by the latter.

Held, allowing the appeal:

(1) To determine whether a statute infringed the equal-protection clause in Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1992 Reprint) (“the Constitution”), the applicable three-stage test required the court to ask: (a) whether the law was discriminatory, in the sense that it prescribed different treatment amongst individuals; (b) whether the discrimination was founded on an intelligible differentia; (c) (i) whether persons falling into the same class were treated equally - if all persons discriminated against were equally discriminated against, and all persons not discriminated against were equally not discriminated against, then the law did not offend the second order of arbitrariness; (c) (ii) whether the basis of discrimination bore a reasonable relation to the object of the statute - to answer this question, the following inquiries had to be undertaken: (A) what the object of the statute was; and (B) whether the basis of discrimination was a reasonable means of achieving the object: at [33].

(2) In this case, the significant question was whether the decision of the Legislature to discriminate against citizens of Singapore in the matter of offences of corruption bore a rational nexus to the object of the Act. On an analysis of the legislative framework and history, the objective was not to eradicate corruption globally, but...