Ung Yoke Hooi v Attorney-General

• Jurisdiction: Singapore
• Judge: Tay Yong Kwang J
• Judgment Date: 21 August 2008
• Neutral Citation: [2008] SGHC 139
• Plaintiff Counsel: Singa Retnam and Amaladass (Kertar & Co)
• Published date: 21 April 2009
• Court: High Court (Singapore)
• Defendant Counsel: Eric Chin and Stanley Kok (Attorney-General's Chambers)
• Subject Matter: Administrative Law

21 August 2008

Tay Yong Kwang J:

1 This is an application under O 53 of the Rules of Court (Cap. 322 R5, 2006 Rev Ed) (“ROC”) for leave to apply for the following orders:

(a) A declaratory order, directing the Attorney-General, the Director of Corrupt Practices Investigation Bureau (“CPIB”) and Principal Special Investigator Alvin Cheong to release Standard Chartered Bank Accounts No. 22-3-xxxxxx-x, 22-0-xxxxxx-x, 015-xxxxx-xx-xx and 015-xxxxx-xx-xx and Development Bank of Singapore (“DBS”) Account No. 11-7-xxxxxx;

(b) A declaratory order that the withholding of the Applicant’s monies in the said five bank accounts pursuant to s 68 of the Criminal Procedure Code (Cap 68, 1985 Rev Ed) (“CPC”) and the failure to report to a magistrate for directions on the disposal of the monies under s 392 of the CPC, is an abuse of power and/or neglect of duty;

(c) In the alternative, a declaratory order that the failure of the persons mentioned in (a) above to avail themselves of Sections 16 and 17 of the Corruption, Drug Trafficking and other Serious Crime (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“CDSA”) is clear evidence that their mere reliance on s 68 of the CPC is another aspect of an abuse of power and/or process;

(d) A mandatory order to direct the Attorney-General to forthwith release the accounts and render the same operable by the Applicant.

2 At this stage, it would be appropriate and convenient for me to deal quickly with prayers (a) to (c) set out above.

3 It is well-established that the High Court does not have the power to grant declaratory orders under Order 53 of the ROC. Our O 53 is borrowed from the old English O 53, in force prior to 11 January 1978, which never contained a power to grant declaratory orders. England has since changed its position through legislative amendments. Sinnathuray J held in Re Application by Dow Jones (Asia) Inc. [1987] S.L.R. 505 (at [225]) that:

The position in Singapore is different from that of England … there is no provision in our substantive law or our rules of court relating to procedure for this court to make orders of declarations or give other ancillary reliefs in an application made under O 53.

This position was approved in Chan Hiang Leng Colin and Others v Minister for Information and the Arts [1996] 1 S.L.R. 609 (“Colin Chan”) where the Court of Appeal held (at [613]):

Our RSC O 53 is based on the old English O 53. There was never any power to grant a declaration under that Order because a declaration is not a prerogative order. Re Application by Dow Jones (Asia) Inc was rightly decided.

4 The applicant has not sought to show how the above legal principle can or should be departed from in the present case. Therefore, following Colin Chan, I must strike out the application in respect of the three declaratory orders. Accordingly, the rest of this judgment deals only with the application to seek leave to apply for the mandatory order.

The applicant’s case

5 The applicant, a Malaysian citizen now residing in Singapore with his family, is a businessman who deals with waste metals. He has the following bank accounts:

(a) Standard Chartered Bank Account No. 22-3-xxxxxx-x (“Account No. 1”);

(b) Standard Chartered Bank Account No. 22-0-xxxxxx-x (“Account No. 2”);

(c) Standard Chartered Bank Account No. 015-xxxxxx-xx-xx (“Account No. 3”);

(d) Standard Chartered Bank Account No. 015-xxxxx-xx-xx (“Account No. 4”); and

(e) Development Bank of Singapore Account No. 11-7-xxxxxx (“Account No. 5”).

6 The genesis of this case began in 2002 when, at the behest of one Raymond Ng, the applicant purchased 29% of the shares in Citiraya Technologies Sdn Bhd (“Citiraya Malaysia”). Raymond Ng and the applicant were then, respectively, the Chief Executive Officer and a minority shareholder of Citiraya Malaysia’s parent company, Citiraya Industries (Singapore) Ltd (“Citiraya Singapore”). Citiraya Singapore owned 60% of Citiraya Malaysia, while another two minority shareholders owned 8% and 3% respectively.

7 Subsequently, Raymond Ng sold his shares in Citiraya Singapore to his brother, one Ng Teck Lee. Sometime in 2003, Ng Teck Lee offered to purchase all the remaining shares in Citiraya Malaysia not owned by Citiraya Singapore. The two minority shareholders of Citiraya Malaysia instructed the applicant to act for them in this matter through a letter of authority. After negotiations effectively concluded in December 2003, the applicant agreed to sell his shares plus the shares of the minority shareholders, totalling 40% of Citiraya Malaysia’s shares, to Ng Teck Lee for S$4 million. The applicant took pains to emphasize that the negotiations were concluded at arm’s length.

8 Under the terms of this agreement, the S$4 million was to be paid in 10 equal instalments. The applicant states that the first instalment was paid on 19 April 2004 by way of an OCBC cheque drawn in the name of one Goh Teck Inn. It was never made clear who this Goh Teck Inn was and what his relationship with Ng Teck Lee was. Another 5 instalments were subsequently paid on 27 May 2004, 27 July 2004, 27 October 2004, 30 November 2004 and 30 December 2004. These were paid by the transfer of monies from bank accounts in the name of Pan Asset International (“PAI”), a company incorporated in the British Virgin Islands, to the applicant’s Account No. 2. As will be seen, it is the respondent’s case that PAI was beneficially owned by Ng Teck Lee.

9 In January 2005, CPIB’s investigations against the management of Cititraya Singapore, for a scam involving the diversion of rejected microprocessor chips into black markets, were made public. By November 2005, various individuals were convicted of abetting Ng Teck Lee in bribery and falsifying accounts or for accepting bribes. Ng Teck Lee left Singapore and became a fugitive.

10 In December 2006, the applicant found that he was unable to operate Account No. 1. Shortly after that, he was notified by the Development Bank of Singapore that Account No. 5 was frozen by the CPIB. The applicant then sought an explanation from the CPIB. By a letter dated 13 June 2007, the CPIB confirmed that Accounts No. 1 and 5 had been frozen pursuant to section 68 of the CPC. This is incorrect as it was later discovered, during a pre-trial conference, that Account No. 1 was never frozen by the CPIB. It is unclear why the applicant was unable to operate it in December 2006.

11 By a letter dated 4 February 2008, the CPIB informed the applicant that Accounts No. 2 and 3were also seized in addition to Account No. 5. Thus, only 3 bank accounts were seized by the CPIB: Accounts No. 2, 3 and 5. Nonetheless, the applicant insisted that not only was Account No. 1 also frozen but Account No. 4, which had not been mentioned before the applicant filed his amended originating summons, had also been seized. Thus, in the amended originating summons, the applicant made all 5 accounts the subject of his application.

12 The applicant seeks a mandatory order to direct the respondent to release the 5 accounts. While the applicant made a number of assertions, his basic legal claims may be summarized as follows:

(a) The seizure of the bank accounts under s 68 of the CPC was illegal and an abuse of process. This is because, first, the applicant had not been charged with any offence nor was he the subject of any investigation; second, the respondent had not provided any evidence that the funds in the seized accounts came from PAI; and third, the applicant had no knowledge that the funds came from PAI; Moreover, CPIB’s intention to proceed with confiscation orders under the CDSA was also an abuse of process;

(b) The seizure of the accounts was unreasonable as CPIB had done nothing with the accounts since the first one was seized more than a year ago;

(c) There was also procedural impropriety in the seizure of the accounts. The applicant claimed that the procedure set out in s 68(2) and 392(1) of the CPC were not complied with.

The respondent’s case

13 The respondent submitted that since January 2005, Ng Teck Lee has been under investigation for criminal breach of trust for misappropriating computer chips from Citiraya Singapore. In the midst of the investigations, it was discovered that the proceeds of sale from the misappropriation (“Misappropriation Proceeds”) were paid into the bank accounts of PAI, a company owned beneficially by Ng Teck Lee.

14 The respondent submitted that the five instalments paid by Ng Teck Lee to the applicant from 27 May 2004 to 30 December 2004 (see [8] above) were made out of PAI bank accounts and paid into the applicant’s Account No. 2. Thus, part of the Misappropriation Proceeds could be traced directly to the applicant’s Account No. 2. This account was accordingly seized on 17 November 2006.

15 However, prior to the seizure of Account No. 2, some of the Misappropriated Proceeds had already been transferred to Accounts No. 3, 4 and 5 from Account No. 2. As such, Account No. 3 was seized on 19 December 2006 while Account No. 5 was seized on 11 January 2007. For some reason, perhaps due to oversight, Account No. 4 was not seized. This account was an investment account and it was redeemed on 5 July 2007. The funds from the redemption were credited back to Account No. 2. Therefore, in order to rectify the earlier lapse, the CPIB seized the funds that were in Account No. 2 on 7 March 2008, after this originating summons had been commenced. At all times, the CPIB asserted that the source of monies in the accounts seized was connected to the Misappropriation Proceeds.

16 The respondent further submitted that the length of time for which the accounts had been seized was reasonable since the case was complex and involved, among other things, foreign financial institutions and foreign companies. The case was further complicated by Ng Teck Lee’s absence from Singapore. In the circumstances, there was no inordinate delay to justify the issue of a prerogative writ (see Tan...