Tay Choo Wah v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chua F A J
• Judgment Date: 29 June 1976
• Neutral Citation: [1976] SGHC 6
• Docket Number: Magistrate's Appeal No 45 of 1975
• Date: 29 June 1976
• Year: 1976
• Published date: 19 September 2003
• Plaintiff Counsel: Francis T Seow (Francis T Seow)
• Citation: [1976] SGHC 6
• Defendant Counsel: MD Sherrard QC and Allen Yau (Allen Yau)
• Court: High Court (Singapore)
• Subject Matter: Breach by agent,Offences,Criminal Law,Dishonestly disposing of shares of company,s 409 Penal Code (Cap 103, 1970 Ed),Whether director an agent of the company,Property,Criminal breach of trust,Sentence

The appellant, Tay Choo Wah, was found guilty by the district court and convicted on three charges of criminal breach of trust as an agent under s 409 of the Penal Code (Cap 103, 1970 Ed) and was sentenced to 18 months imprisonment on each charge, the sentences to run concurrently. The case of the prosecution was that the appellant being entrusted in his capacity as director of Sin Chew Realty Pte Ltd with 3,000 shares held by Sin Chew Realty Pte Ltd (to which I will hereinafter refer to as Sin Chew) in Modern Housing Development Pte Ltd (to which I will hereinafter refer to as Modern Housing) dishonestly disposed of those shares.

The appellant was charged with these charges jointly with his father Tay Ah Choon. The trial judge at the commencement of the trial found that Tay Ah Choon was of unsound mind and incapable of making his defence and Tay Ah Choon was released to the care of his wife under the provisions of s 300 of the Criminal Procedure Code and thereafter the trial proceeded against the appellant alone.

The facts are these. Sin Chew was incorporated on 3 August 1955 and Tay Ah Choon, Tay Beng Swee and the appellant were the original subscribers and directors of that company. Tay Beng Swee is a younger brother of Tay Ah Choon, who is the father of the appellant. As at 6 August 1970 Tay Beng Swee held in his own name 2,931 shares and Tay Beng Swee Pte Ltd which Tay Beng Swee controlled, held 2,997 shares. The appellant held 1,555 shares in his own name and his father Tay Ah Choon held 1,116 shares in his name. The original authorized share capital was $1m divided into 10,000 shares of $100 each. Tay Beng Swee had the majority shareholding in Sin Chew. Broadly speaking, Sin Chew can be described as a company dealing in lands of all kinds and in developing lands.

Modern Housing was incorporated on 5 July 1957. The same three Tays were the original subscribers and the original share capital was $1m divided into 10,000 shares of $100 each. Only 8,003 shares were paid up. As at 10 November 1971 Tay Beng Swee, Tay Ah Choon and the appellant held a share each in their own names and Sin Chew held 3,000 shares and Tay Enterprise Sdn Bhd held 1,000 shares and Tay Beng Swee Pte Ltd and Tay Ah Choon Pte Ltd held 2,000 shares each. The 3,000 shares held in the name of Sin Chew are the subject matters of the three charges against the appellant. Generally speaking, this company carried on the same type of business as Sin Chew`s.

At all material times the appellant, his father and Tay Beng Swee were directors of the two companies. These were family businesses run by the three Tays.

Sin Chew and Modern Housing each had some very valuable land interest and two major properties figure in the case. Sin Chew had an interest in 46,525 sq ft of land at Cairnhill Circle. 17,844 sq ft of the land was subject to an agreement entered into between Sin Chew and Regency Hotel Ltd whereby Regency Hotel Ltd was to build a hotel on that site to be called Regency Hotel (I will refer to it as the Regency Hotel Site). It paid half a million dollars by way of advance to Sin Chew and on completion of the hotel the Regency Hotel Ltd had the option to buy the Regency Hotel Site for $1,380,000.

The main real property asset of Modern Housing was the site of the Oberoi Imperial Hotel in Oxley Rise (I will refer to it as the Imperial Hotel Site). Modern Housing had granted a hundred-year lease to Imperial Hotel Ltd now known as Imperial Securities International Ltd (ISI).

The two companies prospered and the three Tays and the two companies indulged in tax evasion. By 1971 the Income Tax Department in Singapore was on their trail and the threat of proceedings was in the air.

To avoid being prosecuted Tay Beng Swee fled to Hong Kong sometime in 1971. He left behind in Singapore various documents and in particular share certificates including the 3,000 shares which Sin Chew held in Modern Housing with his niece, Miss Yeo Ah Eng. The 3,000 shares were in three certificates for 1,000 shares each. The result was that the appellant was left in Singapore in effective charge of the two businesses as his father was a sick man.

Sometimes in 1972 it was decided to try and come to an agreement with the Income Tax Department, Singapore. A meeting was held in neutral territory in Bangkok in July 1972 at which there were present officials of the Income Tax Department, Tay Beng Swee and his legal advisers and the appellant and his legal advisers. The meeting lasted several days. All the Tays acknowledged their liabilities and an agreement with the Income Tax Department was hammered out.

The terms of the agreement were broadly these. The Tays and the two companies were to pay $7.5m including penalties. By far the larger part of the responsibility was assumed by and levied against Tay Beng Swee himself. Instalment terms were agreed upon - first payment of $1m was to be made not later than the end of October 1972; a further payment of $500,000 not later than 31 January 1973; a further payment of $64,500 per month to be paid from February 1973, until August 1975. The Comptroller as securities for the instalments required certain shares of certain companies (not Modern Housing shares) to be deposited with him. The Comptroller undertook not to prosecute the Tays and the two companies if and when the $7.5m were paid over.

On 3 August 1972 the auditors of Modern Housing wrote to Modern Housing asking for certain share certificates to be produced to them for audit purposes.

On 8 August 1972 the appellant, as director of Modern Housing, wrote to Miss Yeo Ah Eng enclosing a copy of the auditors` letter and requesting that all the share certificates listed in the auditors` letter be produced for the auditors` inspection and at a later date be transmitted to the Income Tax Department. On 10 August 1972 the appellant sent his messenger boy, Abdul Moin, to collect the share certificates. Miss Yeo Ah Eng handed over to him all the share certificates which she had. She typed out a list of the shares certificates that she was handing over and Abdul Moin signed the list by way of acknowledgment of receipt. This list included the 3,000 Modern Housing shares in the name of Sin Chew. Abdul Moin checked the list and received the share certificates stated therein from Miss Yeo and subsequently handed them all to the appellant the same day, 10 August 1972.

On 4 September 1972 the appellant sent to his solicitors share certificates which he received from Miss Yeo for onward transmission to the Income Tax Department but he did not send the 3,000 Modern Housing shares. Many of the shares which the Income Tax Department required as security were not sent but others were sent in their place.

On 18 December 1972 the Board of Directors of Sin Chew passed a resolution `that the company`s investment of 3,000 shares in Modern Housing Development Pte Ltd be sold at par value ...`. No name was given of the purchaser or prospective purchaser. The resolution was signed by the appellant and his father and was not sent to Tay Beng Swee in Hong Kong for signature. The space for Tay Beng Swee`s signature was blank with the word `Not in Singapore.`

On 20 December 1972 the Board of Directors of Sin Chew passed a resolution `that the Company`s sale of 3,000 shares in Modern Housing Development Pte Ltd at par value be made on deferred payment basis and that Mr Tay Choo Wah be authorised to negotiate and conclude deferred payment sale contracts with the purchasers`. The purchasers or prospective purchasers were still unnamed. The resolution was again signed by the appellant and his father and the space for Tay Beng Swee`s signature was again blank with the words `Not in Singapore.`

Following the resolutions the 3,000 Modern Housing shares owned by Sin Chew were sold at par and transferred to the respective names of Dr Goh Kim Hwa (1,000 shares), his wife Mdm Khoo Swee Huat (1,000 shares) and his mother Mdm Tan Loh Teck (1,000 shares). The three share transfers were all dated 30 December 1972 and signed by the appellant and his father. The defence conceded that the three share transfers were not executed on the date typed thereon namely 30 December 1972. Dr Goh is a nephew of the appellant by marriage.

The terms of the deferred payment for those 3,000 Modern Housing shares is contained in three identical letters signed by the appellant date 26 December 1972 and signed by Dr Goh, his wife and his mother respectively by way of confirmation and acceptance of the terms and conditions set out in the letter. The terms in each can were that 10% of the selling price be paid on the transfer of the shares and the balance of 90% of the selling price be paid by monthly instalments of 5% of the selling price. The instalments were to be paid for the first six months after the transfer of the shares and payment of instalments was to commence at the end of the seventh month after the transfer of the shares and interest at the rate of 12% per annum was to be paid from the date of the transfer of the shares. The shares would not therefore be paid up in full until February 1975.

At the close of the prosecution`s case it was submitted on behalf of the defence that there was no case on the facts and the law for the appellant to answer but the learned trial judge held that the prosecution had established a case which, if unrebutted, would warrant a conviction on the charges preferred against the appellant and the court called upon the appellant to enter upon his defence on all the three charges.

The appellant elected to put in a long typed-written statement. In his written statement he said that he proceeded to sell the 3,000 Modern Housing shares and even the company`s car in view of the legal advice of his solicitor Mr Foo See Juan to get rid of all the remaining assets of Sin Chew. He denied that the sale of the 3,000 Modern Housing shares by his father and him was dishonest. He submitted that the price which he obtained from...