Tuen Huan Rui Mary v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 17 July 2003
• Neutral Citation: [2003] SGHC 157
• Date: 17 July 2003
• Subject Matter: Criminal breach of trust,Appeals,Appeal,Treatment by appellate court,Sentencing,Criminal Procedure and Sentencing,Relevance of value of property misappropriated,Findings of fact by trial judge,Whether sentence imposed by trial judge was manifestly excessive
• Docket Number: Magistrate's Appeal No 107 of 2002
• Published date: 03 October 2003
• Defendant Counsel: Eddy Tham and Edwin San (Deputy Public Prosecutors)
• Court: High Court (Singapore)
• Plaintiff Counsel: Chandra Mohan K Nair (Tan Rajah & Cheah)

1 This was an appeal against the decision of district judge Malcolm BH Tan when he convicted the appellant on two counts of criminal breach of trust, an offence punishable under s 406 of the Penal Code (Cap 224). The appellant was sentenced to 27 months imprisonment on each charge and the two sentences were ordered to run concurrently. The present appeal was brought against conviction and sentence. At the end of the hearing before me, I dismissed the appeal against conviction and allowed the appeal against sentence. I now give my reasons.

Charges

2 The charges against the appellant read as follows:

(a) DAC 19413/2002

You, Tuen Huan Rui Mary, are charged that you on or about the 21^st day of July 1999, in Singapore, being entrusted with certain property, to wit, a Post Office Savings Bank cash cheque, number 511446, dated 21 July 1999 and issued by Png Beng Hong for an amount of $30,000, committed criminal breach of trust of the said property, by en-cashing the said cheque and using the proceeds for your personal use, and that you have thereby committed an offence punishable under section 406 of the Penal Code, Chapter 224.

(b) DAC 13414/2002

You, Tuen Huan Rui Mary, are charged that you on or about the 21^st day of July 1999, in Singapore, being entrusted with certain property, to wit, a Development Bank of Singapore cash cheque, number 396566, dated 21 July 1999 and issued by Png Beng Hong for an amount of $20,000, committed criminal breach of trust of the said property, by en-cashing the said cheque and using the proceeds for your personal use, and that you have thereby committed an offence punishable under section 406 of the Penal Code, Chapter 224.

Background facts

3 In April or May 1999, the appellant befriended Png Beng Hong, also known as Cecilia Goh (‘Cecilia’), the Managing Director of Vibration and Sound Services & Sales Pte Ltd (‘Vibration Pte Ltd’), after the appellant had made a ‘cold call’ to Cecilia’s office. The appellant, who at the material time was the director of two companies which provided ISO certification consultancy services, offered her services to Cecilia and was subsequently engaged as a consultant to help Vibration Pte Ltd obtain ISO 9000 certification. In late May 1999, the appellant introduced Cecilia to her then boyfriend, one Tan Kah Miang (‘Tan’).

4 It was undisputed that the appellant encashed two cash cheques issued by Cecilia. On 21 July 1999, the first cheque, a Post Office Savings Bank cheque, number 511446 (‘the POSB cheque’), in the amount of $30,000, was encashed. The second cheque, a Development Bank of Singapore cash cheque (‘the DBS cheque’), number 396566, in the amount of $20,000, was encashed the following morning.

5 Neither the appellant nor Tan were able to open trading accounts to trade on the Singapore Stock Exchange, as the appellant’s trading accounts had previously been made delinquent by Kim Eng Securities and Tan was a bankrupt.

Prosecution’s version of the facts

6 Cecilia testified that she had issued the two cheques to the appellant to partly settle share trading losses in her Kim Eng Securities trading account (‘the Kim Eng account’). Cecilia had issued cash cheques so that the appellant could encash them immediately and settle the losses with Kim Eng. This was a matter of some urgency as a delay in payment would result in Cecilia’s account being made delinquent such that she would no longer be able to trade on the Singapore Stock Exchange.

7 Cecilia testified that, following from her introduction to Tan, which had been initiated by the appellant in late May 1999, a share-trading agreement was agreed upon between Cecilia, Tan and the appellant. Under this agreement, Cecilia was to open trading accounts and provide the investment capital of $400,000. Profits were to be shared, with Cecilia receiving half the profits. The appellant and Tan were entitled to the other half of the profits. The parties also agreed that if any losses were incurred, these would be borne by the appellant and Tan.

8 Pursuant to this agreement, the appellant brought Cecilia to open a number of trading accounts, including the Kim Eng account. While at Kim Eng, the appellant instructed a remisier, one Daniel Ng Kok Kheng (‘Daniel Ng’), to send her daily summaries of the trading activity in Cecilia’s account. Daniel Ng was also informed that one ‘Onn’ (later established to be Tan) would do the trading for the account.

9 On 20 July 1999, Daniel Ng faxed a print-out to Cecilia seeking settlement of her share trading losses on the Kim Eng account which amounted to $124,725.74. Cecilia turned to the appellant to settle the losses but the latter failed to do so. Cecilia then made partial payment amounting to $58,295.44 as she feared that her account would be made delinquent if the losses were not settled expediently. When Cecilia asked the appellant to settle the remainder, the appellant claimed that she was financially ‘tight’ and unable to make payment. The appellant asked Cecilia for an advance to settle the losses and instructed her to issue cash cheques to expedite payment to Kim Eng. The appellant reassured Cecilia that she would handle the matter and that Daniel was a good friend of hers.

10 In accordance with the appellant’s instructions, Cecilia issued the POSB cheque and the DBS cheque. On the morning of 21 July 1999, the appellant went to Cecilia’s office and collected the two cheques. Cecilia gave the appellant clear and specific instructions that she was to immediately settle the losses in the Kim Eng account with the two cheques. The appellant said she would do so and left with the cheques.

11 A few days later, Cecilia received a demand for payment from Kim Eng Securities and thus discovered that the appellant had not settled the losses. Cecilia’s attempts to contact the appellant were fruitless and she did not see the appellant again until after the appellant’s arrest.

Appellant’s version of the facts

12 At the trial below, the appellant denied all involvement in or knowledge of the share trading agreement, which she contended had been between Tan and Cecilia only. While admitting that she had encashed the two cheques, the appellant denied that Cecilia had given the cheques to her. Instead, the appellant’s version of events was that Tan had given her the two cheques on different days – the POSB cheque on 21 July 1999 and the DBS cheque on 22 July 1999. Each time the appellant had followed Tan’s instructions to encash the cheques and hand the proceeds to him. Each time the appellant handed the proceeds to Tan, he had issued a receipt to reflect this (‘the receipts’).

13 Tan corroborated the appellant’s version of events, testifying that the appellant had not been aware of the share trading agreement. He disagreed with Cecilia’s account of the terms of the agreement, claiming that it was agreed that any profits would be shared equally but that any losses would be borne by Cecilia alone. Related to this, Tan claimed that the two cheques were issued by Cecilia to pay him his share of the profits from the agreement. He testified that he had given the appellant the POSB cheque on 21 July 1999 and the DBS cheque on 22 July 1999. She had returned the proceeds to him and he had given the appellant two receipts.

14 The appellant also called one Lim Poh Lye (‘Lim’), a friend of Tan’s, who testified that he saw Tan give the appellant a cheque on 21 July 1999.

The decision of the district judge

15 The district judge found that the appellant had been actively involved in the share trading agreement. The district judge viewed the two receipts with suspicion and noted that there was ample opportunity for concoction as no mention of these receipts had been made in the statements given by Tan or the appellant to the Commercial Affairs Department (‘CAD’). The district judge noted that the receipts had only been produced after the trial had commenced and that Tan had been on the run until he was arrested in October 2001, in the midst of the trial.

16 The district judge also rejected Tan’s version of the share trading agreement as being ‘ludicrous’. The district judge found that, while it was agreed that Cecilia would share any profits made with Tan and the appellant, share trading losses were to be borne by Tan and the appellant only.

17 The district judge found that the credit of both Tan and the appellant was impeached. In contrast, the district judge found that the prosecution witnesses were truthful witnesses and accepted Cecilia’s version of the facts as credible and truthful. He found that Cecilia had entrusted the two cheques to the appellant to pay for the losses in the Kim Eng account and that the proceeds had not been so applied. He therefore convicted the appellant on both charges.

The appeal against conviction

18 Counsel for the appellant advanced two main grounds of appeal:

(1) that the district judge erred in finding that the appellant was involved in the share trading agreement; and

(2) that the district judge erred in rejecting the appellant’s version of events.

19 I shall now deal with these arguments in turn.

Whether the district judge erred in finding that the appellant was involved in the share trading agreement

20 Counsel for the appellant submitted that the share trading agreement was between Cecilia and Tan only, and that the appellant was not involved in the share trading agreement. Counsel submitted that the appellant did not know about the share trading agreement. While it was not denied that the appellant had been present when Cecilia went to open the Kim Eng account, counsel drew the court’s attention to the appellant’s testimony that she had only gone to open the Kim Eng account at Cecilia’s request and that she had agreed to go with Cecilia ‘as a courtesy’. The appellant argued that she had no knowledge of share trading and had in fact ‘learnt something that day’ about opening trading accounts.

21 At the trial below, the district judge...