TT Durai v Public Prosecutor
| Jurisdiction | Singapore |
| Judge | Aedit Abdullah |
| Judgment Date | 17 December 2007 |
| Neutral Citation | [2007] SGDC 334 |
| Year | 2007 |
| Published date | 22 January 2008 |
| Citation | [2007] SGDC 334 |
| Plaintiff Counsel | David Khoo and Gillian Koh Tan (Deputy Public Prosecutors),Sant Singh (Senior Counsel) and Christine Sekhon (Sant Singh Partnership) |
| Court | District Court (Singapore) |
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17 Dec 2007 |
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District Judge Aedit Abdullah:
1. The Appellant was tried before me on one charge under s 6(c), Prevention of Corruption Act, Cap 241. That charge alleged that between December 2003 and January 2004, the Appellant, being an agent of the National Kidney Foundation as the Chief Executive Officer, knowingly used with intent to deceive his principal, the NKF, an Invoice, number 0014, from DTC Pte Ltd dated 29 December 2003, containing a statement false in a material particular, namely that it was for ‘interior design consultancy service rendered for various dialysis centres for year 2003, for the amount of $20,000, and that he knew that it was intended to mislead the NKF.
2. A second charge concerning a different allegation was stood down at this trial.
3. The trial lasted for 20 odd days, involving some 17 witnesses. Submissions were tendered on 10 May, and oral arguments heard on 28 May.
The Prosecution’s Case
4. The Prosecution’s evidence included the testimony from a number of witnesses who were officers and staff of the NKF at the material times. PW1 Wendy Au May Lee, a former secretary to the Appellant, testified on the drawing up of the paperwork, namely a requisition to purchase, after an invoice from DTC Pte Ltd was received. PW2 Ragini d/o Vijayalingam, who was an Assistant Manager of the Purchasing Department of NKF, at the material time, testified as to the procedures, and what happened when she received the requisition to purchase. PW9 Loh Yee Leong Michelle (hereinafter referred to as “Michelle”), an Executive in the Building Department of the NKF at the material time, gave an extensive amount of testimony concerning the procedures of the building department, and the approval processes for a number of projects and instances of work.
5. Evidence was also received from a number of other NKF officers, namely PW3 Lakshmanan Krishnadas, the Assistant Manager of the Finance Department of NKF, who was overseeing the Purchasing Department at the material time; PW4 Rajesh Dileep Desai, an Associate in the Internal Audit Department of NKF, at the material time; PW7 Tan Eng Wai Alvin, an Executive in the Accounts Payable Division of the Finance Department of NKF; PW8 Anirban Kumar Ghosh, the current Manager of the NKF’s Finance Department; PW10 Sebastian Chow Fook Heng, a former Assistant Project Manager of the Building Department of NKF, until he resigned from the NKF in September 2003; and PW11 Jamilah Bte Ismail, Head of the Building Department of NKF, until her retirement in February 2004.
6. These witnesses largely testified and were cross-examined on the procedures to be followed in ordering services or goods, receiving performance and payment thereafter. Those involved also testified that DTC Pte Ltd was not previously a supplier of services to NKF and that interior design services had been rendered by David Tan through other vehicles. There was some questioning on the belief by some of them, particularly PW9, that the payment to David Tan was an hongbao, possibly for his marriage, but this did not lead very far.
7. PW5 Loo Say San, then Treasurer of the NKF and PW6 Richard Yong Kun Da, then Chairman of the NKF testified as to their roles and functions, as well as that of the Appellant.
8. PW12 David Tan Kee Kan, hereafter David Tan, an interior designer and director of DTC Pte Ltd and TID Associates Pte Ltd, was the person who directed the issuing of the invoice under DTC’s name to NKF, which led to payment to DTC of $20,000. That $20,000 was subsequently repaid by David Tan to NKF, through CPIB. David Tan testified as to his involvement with NKF over the span of 2 decades or so, and his relationship with the Appellant. He and his company, TID Associates, and its predecessor, had been paid for interior design work which they had provided to NKF, particularly for its Dialysis Centres, described at various times as the crown jewels of the NKF. At the same time, the Appellant tapped on David Tan for advice down the years, particularly as to design improvements or changes to the Dialysis Centres, but also to the NKF building and various initiatives. David Tan was also involved in efforts to raise donations from the Singapore Buddhist Welfare Services, and a philanthropist and his family. His evidence as to the circumstances of the raising of the invoice and its payment, as well as the purpose of the payment, was a matter of some controversy and complication, particularly as he gave two inconsistent sets of statements to various parties, and which were not consistent with his evidence in chief in court. This will be examined further below.
9. There were two other witnesses from TID / DTC. PW13 Loh Lay Kuan Jean was the Executive Secretary of TID. PW14 Gregory Pong Kai Chee, Managing Director of TID International Pte Ltd, and nephew of David Tan, gave evidence primarily on a meeting he had with the Appellant concerning David Tan.
10. There were 3 witnesses from the CPIB, namely PW15 Osman Ahamed, Chief Special Investigator with the CPIB, who was the Investigating Officer in charge of this case and who recorded most of the statements from David Tan; PW16 Elvin Lim Wee, Senior Special Investigator with the CPIB who recorded one statement from David Tan; and PW17 Wong Pong Yen, Chief Special Investigator with the CPIB, who had been present during one discussion between PW15 Osman Ahamed and David Tan, and who had been consulted by Osman.
Close of the Prosecution’s case
11. At the close of the Prosecution’s case the duty of the Court at that stage of the proceedings, was to determine whether on the evidence adduced thus far there was evidence, which was not inherently incredible, and which if accepted as accurate, would be sufficient, together with reasonable inferences that can be drawn, to establish the elements of the charge against the Appellant: Haw Tua Tau v PP
12. The primary issue was what to make of the evidence of David Tan, particularly the two different sets of statements relied on by either side under s 147(3) Evidence Act. I noted that I could not choose between the two sets on the basis of which was first to be invoked in the hearing; that would be purely fortuitous.
13. It was argued by the Defence that the respective parts of the CPIB statements relied upon by the Prosecution ought to be rejected as the statements were obtained in conditions which rendered them incapable of being given weight: the statements were, it was said, full of inconsistencies, that inaccuracies arose when the witness was unable to think coherently and clearly because of his treatment, and there were alleged threats or inducements held out to him. Although the Defence took issue with the conditions under which the CPIB statements were recorded, particularly those within his overnight detention, I did not in the end find that these statements should be given little or no weight. His treatment at CPIB and the questioning adopted there had not caused the witness to give statements that could not be relied upon at all.
14. The KPMG or CAD statements (D30 and D31 respectively) were not the subject of similar complaints, but both were the subject of portions of the CPIB statements, particularly that on 16 Feb 2007 (P35), which contradicted them.
15. The choice between the two sets of statements could not be made simply on the grounds that one was inconsistent with the other.
16. David Tan did in the end state a preference for the statements to the CAD and KPMG; he testified that what he eventually told the CPIB was because he was responding to a specific scenario, in his words, put to him. However, I did not give that preference much weight since David Tan had earlier in his testimony put forward the position that all the statements essentially had elements of truth.
17. I noted that the Appellant could provide much light on the various issues. There was to my mind based on the evidence at that stage of the proceedings, a reasonable inference that the invoice was false, and that it had been used as such, with the intention of misleading the NKF, and that the Appellant intended to deceive.
18. This was not the only reasonable explanation; and there may be others that are exculpatory of the Appellant. However, given that the assessment at that stage of the proceedings was to be made on a general appreciation of the whole of the evidence adduced up to that point, I concluded that one reasonable inference from the inability of David Tan, the ostensible issuer of the invoice, to identify definitively what the payment was for, taken with the surrounding circumstances, including the absence of materials that could support work being done, is that there was nothing that would meet the description in the invoice There was also nothing inherently incredible about the prosecution’s evidence in this regard.
19. I thus called on the defence of the Appellant.
Defence
20. The Appellant chose not to testify when his defence was called. The Defence thus closed on the evidence of the Prosecution only.
Submissions at the close of the case
Prosecution’s Submissions
21. The Prosecution’s case is that reliance should be placed on David Tan’s CPIB statements, and that none should be given to what was said to KPMG and CAD. David Tan did not allege involuntariness in the statement, and had consistently given evidence that no one had bullied or coerced him. He had also been given ample opportunity at each occasion to read over, make corrections and sign thereafter. The evidence of the Investigating Officer also showed that David Tan was relaxed and jovial; he remained alert during interviews. No pressure was placed on him at all. The contents of the statements, particularly, P33, which was recorded after David Tan had returned from a trip to KL, were corroborated by CSI Wong. Furthermore, the seventh and...
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