Ung Yoke Hooi v Attorney-General

• Jurisdiction: Singapore
• Judge: Chan Sek Keong CJ
• Judgment Date: 13 April 2009
• Neutral Citation: [2009] SGCA 15
• Docket Number: Civil Appeal No 56 of 2008
• Date: 13 April 2009
• Year: 2009
• Published date: 16 April 2009
• Plaintiff Counsel: Mohd Sadique bin Ibrahim Marican, Anand Kumar s/o Toofani Beldar and Krishna Morthy SV (Frontier Law Corporation)
• Citation: [2009] SGCA 15
• Defendant Counsel: Eric Chin and Stanley Kok (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Subject Matter: Failure to report seizures "forthwith" under s 392(1) Criminal Procedure Code was a breach and amounted to procedural impropriety,Whether court had power to grant leave for judicial review,Duties of Magistrates' Courts relating to seized property,Judicial review,Seizures of property under s 68(2) Criminal Procedure Code (Cap 68, 1985 Rev Ed),Administrative Law,Magistrates’ courts,Courts and Jurisdiction,Criminal jurisdiction,Sections 392, 393 and 394 Criminal Procedure Code (Cap 68, 1985 Rev Ed),Criminal Procedure and Sentencing

13 April 2009 Judgment reserved.

Chan Sek Keong CJ (delivering the judgment of the court):

Introduction

1 This appeal arises from the decision of a judge of the High Court (“the Judge”) in refusing to grant leave to Ung Yoke Hooi (“the Appellant”) to apply under O 53 of the Rules of Court (Cap 322, R 5, 2006 Rev Ed) for judicial review in order to unfreeze certain bank accounts in his name which had been seized by a police officer pursuant to s 68 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) (see Ung Yoke Hooi v Attorney-General [2008] SGHC 139 (“the GD”)).

2 Specifically, the application for leave also sought various declaratory orders and a mandatory order to direct the Attorney-General (“the Respondent”) to release the said accounts and render the same operable by the Appellant. The declaratory orders sought, which had arisen out of the seizures, were struck out by the Judge on the ground that the court had no jurisdiction under O 53 to grant such orders. This appeal is concerned only with the application in respect of the mandatory order.

Facts

3 The facts are as follows. The Appellant is a Malaysian citizen and has a family in Singapore. At the material time, he had business dealings in waste metals, and was operating, in so far as these proceedings are concerned, four bank accounts at AA Bank (“Account Nos 1 to 4”) and one account at BB Bank (“Account No 5”).

4 In 2002, the Appellant purchased 29% of the shares in a Malaysian company called Citiraya Technologies Sdn Bhd (“CTM”) which was 60% owned by a Singapore company called Citiraya Industries (Singapore) Ltd (“SIM”). The other 8% and 3% of CTM were owned by two minority shareholders, viz, one Soon Ah Lan and one Ung Yoke Khim.

5 Sometime in 2003, one Ng Teck Lee (“NTL”) took over control of SIM and, at the end of December 2003, offered to buy the Appellant’s 29% shareholding and the shareholdings of the other two minority shareholders in CTM at $1.00 per share, amounting to $4m to be paid in ten instalments of $400,000 each. The Appellant claimed that the negotiations (at which he also represented the other two shareholders) were done at arm’s length. The first instalment was paid on 19 April 2004, followed by another five instalments on 27 May, 27 July, 27 October, 30 November and 30 December of 2004. Other than the first payment, which was made by way of a bank cheque, the subsequent five instalments were paid by the transfer of moneys from bank accounts in the name of Pan Asset International (“Pan Asset”), a British Virgin Islands company, into one of the Appellant’s bank accounts in Singapore.

6 In January 2005, the Appellant learnt that the Corrupt Practices Investigation Bureau (“CPIB”) was investigating the affairs of SIM. However, he was not aware of the nature of the investigations. In December 2006, the Appellant was called upon by CPIB to assist in these investigations. He gave them his fullest co-operation. In December 2006, he found that he was unable to operate Account No 1 at AA Bank. Shortly after that, he was notified by BB Bank that Account No 5 was frozen by CPIB. He sought an explanation from CPIB and was informed by a letter dated 13 June 2007 that both Accounts Nos 1 and 5 had been frozen pursuant to s 68 of the CPC. This was not quite correct as Account No 1 was not seized by CPIB (although it was not clear why the Appellant was unable to operate it). Subsequently, by a letter dated 4 February 2008, CPIB informed the Appellant that Accounts Nos 2 and 3 had also been seized. Although only three accounts had been seized by CPIB, the Appellant’s case was that all his five accounts (collectively “the Accounts”) had been seized. His application for leave was accordingly made on that basis.

Grounds of the Appellant’s application to the High Court

7 The grounds of the Appellant’s application to the High Court were as follows:

(a) The seizure of the Accounts was illegal and an abuse of process as, first, the Appellant had not been charged with any offence nor was he the subject of any investigation; second, there was no evidence that the funds in the Accounts came from Pan Asset; and third, CPIB’s intention to proceed with confiscation orders under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“CDSA”) was also an abuse of process.

(b) The seizures were unreasonable as CPIB had done nothing with the Accounts since the first account (Account No 2) was seized more than a year ago (on 17 November 2006).

(c) There was procedural impropriety in the seizure in that the procedures set out in ss 68(2) and 392(1) of the CPC were not followed.

The Respondent’s evidence

8 The Respondent filed two affidavits to rebut the Appellant’s allegations. The first affidavit dated 5 November 2007, that of Alvin Cheang Chee Hou (“Alvin Cheang”), an investigation officer of CPIB, disclosed, inter alia, that NTL was being investigated for criminal breach of trust for misappropriating computer chips from “Citiraya (S) Ltd” (presumably this was a reference to SIM). He claimed that the proceeds of the sale of the misappropriated computer chips were paid into the bank accounts of Pan Asset, a company “beneficially owned” by NTL and that five of the aforementioned payments made to the Appellant’s Account No 2 were made out from one of Pan Asset’s bank accounts. He also confirmed that the aggregate payments the Appellant received from the bank accounts of Pan Asset exceeded the total amounts in the Appellant’s bank accounts which CPIB had frozen.

9 The second affidavit dated 16 January 2008, that of Fong Wai Kit, CPIB’s Principal Special Investigator, disclosed, inter alia, the following:

(a) that NTL was under investigation for having committed, inter alia, criminal breach of trust by a servant under s 408 of the Penal Code (Cap 224, 1985 Rev Ed), which is defined as a “serious offence” under the CDSA;

(b) that NTL had left the jurisdiction, and the case was complex and involved documentary evidence from financial institutions, company records and many witnesses;

(c) that the misappropriated funds were paid into the accounts of Pan Asset which was beneficially owned by NTL and that the five payments to the Appellant were paid from these accounts;

(d) that criminal proceedings would be instituted against NTL should he be brought back to the jurisdiction; and

(e) that, in the absence of NTL, it was CPIB’s intention to proceed with the confiscation order under the CDSA.

The Judge’s decision

10 The Judge dismissed the Appellant’s application on the ground that the Appellant had not established an arguable case, which is the minimum standard of proof required for leave to be given under O 53 of the Rules of Court (see the GD at [23]). He found that the Appellant had not shown sufficient evidence to prove that there might be an arguable case that the seizure of his accounts was in any way illegal or unreasonable or procedurally improper.

Whether the seizures were illegal

11 With respect to ground (a) (see [7] above), the Judge held that s 68(1) of the CPC did not require the Appellant to be investigated or charged for an offence or to have knowledge that the property was stolen before the section could be invoked. Section 68(1) only required an allegation or suspicion that the property was stolen or that it was found in circumstances which created the suspicion of the commission of an offence. As for the argument that CPIB did not have evidence linking Pan Asset’s funds to the moneys in the seized accounts, the Judge found that it was not for the Respondent to show that the moneys came from a tainted source, but for the Appellant to show that they did not come from a tainted source (see the GD at [26] and [27]). Accordingly, there was no abuse of process even if CPIB had not produced any evidence that the funds in the seized accounts came from Pan Asset. The Judge relied on the statement of Andrew Phang Boon Leong J in Teng Fuh Holdings Pte Ltd v Collector of Land Revenue [2006] 3 SLR 507 (“Teng Fuh Holdings”) that, in judicial review cases, abuse of power would not be assumed and that there must be sufficient evidence of a prima facie case of “reasonable suspicion” of bad faith (at [36] of Teng Fuh Holdings).

Whether the seizures were unreasonable since CPIB had done nothing with the Accounts

12 The Judge rejected ground (b) (see [7] above), as the Appellant had not suffered any hardship or prejudice as he had no pressing need to use the funds and did not even know that the Accounts had been frozen. The Judge held, further, that the freezing of the Appellant’s first account (Account No 2) for more than a year (since 17 November 2006) was not unreasonable as the case was a complex one involving foreign companies, foreign bank accounts and foreign financial institutions. Also, the disappearance of NTL made the investigations more difficult.

Whether there was procedural impropriety

13 With respect to ground (c) (see [7] above), the Judge held that there was no procedural impropriety as CPIB had reported the seizure to a Magistrate’s Court on 8 February 2007 and that the “slight delay” (from about one to three months in the reporting) (see the GD at [39]) was immaterial as it had caused no hardship or prejudice to the Appellant.

14 The Judge also rejected a submission by the Appellant that the intention of CPIB to eventually take out confiscation proceedings under the CDSA would also amount to an abuse of process. He held that the proper remedy in such a case was a prohibitory and not a mandatory order, but that, in any case, it could not be an abuse of process for CPIB to take out confiscation proceedings after using s 68(1) of the CPC to seize the Appellant’s accounts, as s 68(1) was merely an interim measure used to preserve evidence while investigations were ongoing.

Issues on appeal

15 The Appellant raised the following issues for the determination of this court:

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