Teo Kian Leong v Public Prosecutor

• Judge: Yong Pung How CJ
• Judgment Date: 07 December 2001
• Neutral Citation: [2001] SGHC 364
• Citation: [2001] SGHC 364
• Defendant Counsel: Aedit Abdullah (Deputy Public Prosecutor)
• Published date: 19 September 2003
• Plaintiff Counsel: Philip Fong and Lim Tse Haw (Harry Elias Partnership)
• Date: 04 March 2002
• Docket Number: Magistrate's Appeal No 319 of 2001,Magistrate's Appeal No 2 of 2001
• Court: High Court (Singapore)
• Subject Matter: Whether appeal can succeed solely because trial judge's grounds of decision not ideal,Sentencing practice -Factors to take into consideration,When can appellate court overturn lower court's findings of fact,Unauthorised share trading,Sentencing,s 102(b) Securities Industry Act (Cap 289),Criminal Procedure and Sentencing,Applicable principles,Grounds of decision,Whether grounds of decision totally devoid of reasoning,Grounds of decision not conforming with guidelines,Judgment,Courts and Jurisdiction,Appeals,Whether power of appellate court subject to express limitation

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Introduction

The appellant was convicted on eight charges of engaging in acts connected with the purchase and sale of securities, which operated as a deceit on another person. Each charge stated that the appellant had represented to his employer, UBS Warburg & Associates (Singapore) Pte Ltd (`the company`), that certain transactions were for and on behalf of Chia Soo Mui, Chia Lan Fong, Chia Low Fong, Yip Wai Choy, Oh Lay Geok, Oh Lay Khim, Oh Lay Hoon and Teo Song Boon (hereafter collectively referred to as `the complainants`) when they were in fact for his own interest. This is an offence under s 102(b) of the Securities Industry Act (Cap 289).

At the conclusion of the trial, the district judge sentenced the appellant to six months` imprisonment on each charge, ordering two of the sentences to run consecutively and the remaining sentences to run concurrently. The appellant thus faced a 12-month term of imprisonment. He appealed against both his conviction and sentence. After hearing the arguments of the appellant`s counsel, I dismissed the appeals and ordered the sentences to remain. I now set out my reasons.

Background facts

The appellant was a dealer`s representative of the company. His job was to make securities transactions on behalf of people who had trading accounts with the company. The complainants had such accounts and were his clients. By way of background, Teo Song Boon was a schoolmate and acquaintance of the appellant. Yip Wai Choy is married to Oh Lay Geok, who is the sister of Oh Lay Hoon and Oh Lay Khim. Chia Low Fong, Chia Soo Mui and Chia Lan Fong are sisters.

From March to May 2000, many sale and purchase transactions (`the trades`) were conducted on the accounts of the complainants. The trades involved several counters and were done in lots of between a few thousand to several hundred thousand shares and generally involved purchases followed a few days later by sales.

While some of these trades resulted in profit, most resulted in losses and the complainants` trading accounts showed a nett loss at the end of the relevant period. The company subsequently issued letters of demand to the complainants, except for Oh Lay Hoon and Oh Lay Khim as the appellant had already paid for their losses. Several of the complainants then made complaints to the company and lodged police reports against the appellant, alleging that these trades were not authorised.

The prosecution`s case

Put simply, the prosecution`s case was that between March and May 2000, the appellant conducted many trades, representing that they were for and on behalf of the complainants. However, because the trades were not authorised and were actually for his own interest, these acts operated as a deceit on the company.

The complainants each testified that between March and April 2000, they discovered that unauthorised trades had been carried out under their trading accounts. Chia Low Fong gave evidence that on or about 8 March 2000, the appellant called her and informed her that there were transactions which had been wrongly keyed into her sister`s account. As the transactions had generated a profit, the appellant requested Low Fong to get her sister to return the profit to him. Low Fong issued a cheque to the appellant on her sister`s behalf. This cheque was subsequently deposited into the appellant`s bank account.

The other complainants learnt about the trades when they received contract notes from the Central Depository for trades which they had not authorised. Upon discovering this, they, either personally or through a representative, contacted the appellant to query the trades. Teo Song Boon gave evidence that the appellant admitted that he had done the trades on his own behalf. The other complainants testified that the appellant told them that the trades under their accounts were caused by mistakes. In any case, he assured all of them that their accounts would be rectified and that he would settle their losses. However, unauthorised trading continued to occur under the complainants` accounts. When they broached the subject with the appellant, he reassured them that the problem would be rectified, there would be no further trades and that he would settle the outstanding losses caused by the trades.

These assurances were given both over the phone as well as at informal meetings. Oh Lay Geok gave evidence that sometime in April 2000, she met the appellant and he promised to settle the losses, starting with the losses in her sisters` accounts. He eventually paid for the losses in Oh Lay Hoon and Oh Lay Khim`s accounts but did not clear the debts in the accounts of the other complainants.

Teo Song Boon and Chia Low Fong also had separate meetings with the appellant and received similar assurances. One Eilean Pak accompanied Low Fong to such a meeting on 15 May 2000 and gave evidence that such assurances were indeed made by the appellant.

In May 2000, all the complainants, other than Oh Lay Hoon and Oh Lay Khim, received letters from the company demanding that they repay the contra losses standing in their trading account. At about that time, some of them also received a brown envelope, purportedly from the company, which contained a draft letter in their names and addressed to the company. The letter was a proposal from them to the company to pay for the contra losses by monthly instalments. This letter was enclosed with a business reply envelope of the company, which had written on it `Attn: Marcus Teo`. Attached to the reply envelope was a Post-it note with the hand-written words, `Please contact Marcus at PG:922-10-922 for clarifications`. Upon receiving the letters, these complainants contacted the appellant once again and he assured them that he would settle the losses with his bonus. However, they insisted on meeting up with him.

Chia Low Fong, accompanied by one Tee Kien Seah, met the appellant on 1 June and 5 June 2000. At the meetings, the appellant told Low Fong and Tee that even if he were to admit that the trades were his, the company still had the right to go after them. The appellant then said that the best way was for them to pay for the losses by monthly instalments and for him to reimburse them every month. When they refused to accept this solution, he gave them a draft letter, which he said would be from him to the company explaining that the trades were executed by him and that he undertook to bear full responsibility for them.

Teo Song Boon also met the appellant sometime in early June 2000. The appellant suggested that Teo propose to pay the company for the contra losses by instalments. However, Teo refused, stating that the appellant had to settle the losses since he had caused the losses by using Teo`s account without his authorisation. On hearing this, the appellant asked for more time to clear the losses and Teo agreed.

As for Yip Wai Choy and Oh Lay Geok, they testified that they met the appellant on 31 May 2000. After a short discussion, Yip demanded to speak to the appellant`s superiors at the company and met up with one Daniel Kwek and one Christina Foo.

In addition to evidence of the witnesses and several documents and cheques, the prosecution also adduced several Short Message Service (`SMS`) messages which were sent to Teo Song Boon by the appellant via his mobile phone and which Teo subsequently saved on his own mobile phone. In one message, sent on 22 May 2000, the appellant said:

Shld any1 ask abt yr a/c wif me, juz say there was consentment 2 the use of the a/c, pls dun say unauthorised use of the a/c. thks a million.

Based on all the above evidence, the prosecution contended that it was clear that the trades were unauthorised.

The defence

The appellant claimed that the trades were either authorised or the result of mistakes and that his former clients were simply trying to evade their financial responsibilities and were pinning their losses on him. He stressed that their story was not legitimate, as nobody would have acted in the same way. They did nothing to stop the alleged trades and instead allowed him to continue engaging in a large number of unauthorised trades, complaining only after the company sent them letters of demand.

The appellant sought to rebut the evidence of the prosecution by claiming that the draft letters from the complainants to the company requesting for an instalment repayment plan had been sent upon requests made by Teo Song Boon, Yip Wai Choy and Oh Lay Geok because they had difficulties paying for the losses which they had personally incurred.

With regard to his payment of the Oh sisters` losses, the appellant said that he had done this because they were in financial difficulty and he wanted to help them by extending a personal loan to them and clearing their debt.

The appellant argued that he could not hope to benefit from the unauthorised trades since he hardly knew the complainants and they were unlikely to share their profits with him. On the other hand, he would face severe consequences if he was found to have engaged in such practices. He also highlighted that some of the complainants had kept the profits that were transferred into their bank accounts as a result of gains made through the allegedly unauthorised trades.

The decision below

The district judge stated that, having observed the demeanour of the witnesses and having considered all the evidence adduced, he accepted the evidence of the prosecution witnesses as a truthful account of what had transpired. Apart from the...