Viswanathan Ramachandran v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 26 August 2003
• Neutral Citation: [2003] SGHC 183
• Docket Number: Magistrate's Appeal No 231 of 2002
• Date: 26 August 2003
• Published date: 02 October 2003
• Year: 2003
• Plaintiff Counsel: K Shanmugam SC and K Muralidharan Pillai (Allen & Gledhill)
• Citation: [2003] SGHC 183
• Defendant Counsel: Christopher Ong Siu Jin (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Witnesses,Impeaching witnesses’ credibility,Criminal Procedure and Sentencing,Property misappropriated not property entrusted,Sentencing,s 409 Penal Code (Cap 224, 1985 Rev Ed),Criminal Law,Criminal breach of trust,Whether sentence manifestly inadequate,Relevant considerations by appellate court when amending charge,Appeal,Property,Amendment,Findings of fact by trial judge,Offences,Entrustment of property not the same as entrustment of proceeds of sale of the property under s 405 Penal Code (Cap 224, 1985 Rev Ed),Whether appellate court should impeach credibility of witness where trial judge has not merely because witness has lied in earlier case,Charge,Approach to be taken by appellate court where there are inconsistencies in evidence,Evidence,Witness convicted in earlier case

1 The appellant faced one charge of criminal breach of trust as an agent and one charge of simple criminal breach of trust in the subordinate courts. The first charge read:

That the accused sometime at end June or early July 2001, being a director of Heraeus Pte Ltd (HSL) and being entrusted by HSL with 1050 kg of Indium metal, committed criminal breach of trust in respect of the said property by dishonestly misappropriating 100 kg of the Indium metal worth at least US$9,000 for his own use and thereby committed an offence punishable under Section 409 of the Penal Code, Cap 224.

while the second charge read:

That the accused on or about 21 November 2000, being entrusted by WC Heraues Gmbh with a sputtering machine valued at S$277,376, committed criminal breach of trust in respect of the said machine, by selling the said machine and then dishonestly misappropriating the proceeds of the sale amounting to US$35,000 and thereby committed an offence punishable under Section 406 of the Penal Code,Cap 224.

2 The appellant was convicted on both charges and sentenced to terms of imprisonment of nine months and 18 months respectively. Both sentences were to be served concurrently. The appellant appealed against his conviction and the Public Prosecutor filed an appeal against the sentence imposed on the first charge. I dismissed the appellant’s appeal and allowed the Public Prosecutor’s appeal against sentence. I enhanced the appellant’s sentence on the first charge to 15 months’ imprisonment (to be served concurrently with the sentence imposed in respect of the second charge). I now give my reasons.

The facts

3 This appeal dealt with the misappropriation of two different properties: Indium metal and the proceeds of sale of a sputtering machine. Both of these properties were owned by WC Heraeus Gmbh (“WCHG”) or its subsidiaries. In 1995, the appellant was employed by Heraeus Precision Engineering (“HPE”), a wholly owned subsidiary of WCHG. He had been employed to start up the target division of HPE from scratch. Targets are specialised metallic plates used in the manufacture of magnetic disk drives. By all accounts, he was successful and he had developed it into a $40 million business. The appellant reported directly to Dr Ritzert, the Managing Director of WCHG.

4 In 2000, HPE was sold to Jade Precision Engineering Pte Ltd (“Jade”). However, the target division was specifically hived off from the sale and it was transferred to Heraeus Pte Ltd (“HSL”), also a wholly owned subsidiary of WCHG. The appellant was transferred along with the division. He continued to report to Dr Ritzert. Calvin Lim, HSL’s managing director, did not play any part in supervising or directing him.

5 On 1 May 2001, the appellant was appointed as a director of HSL. This arrangement continued until 4 July 2001 when the appellant’s services were terminated under a consolidation operation at HSL (a matter unrelated to the present charges).

6 During his employment, the appellant was responsible for the sales and marketing of targets in the region. He had authorised the acquisition and payment of some 1050 kg of Indium metal. This Indium metal was used in the production of targets. The Indium metal was delivered to HSL prior to the appellant’s termination. Some of this Indium metal was subsequently found to be missing and the appellant was charged under the first charge with misappropriating 100 kg of the Indium metal.

7 In addition, HPE had a machine called the sputtering machine which was used in the production of magnetic thin films using platinum targets. After its purchase, the sputtering machine began to give problems to HPE and they had sold this sputtering machine on to WCHG. Dr Ritzert of WCHG had then given the appellant instructions to dispose of the sputtering machine by either scrapping or selling it. The appellant had then sold the machine to one Yeo Lik Sheng (“Yeo”) who had then sold it to Glen Westwood, an employee of Oryx which was a competitor of HSL. This second sale was done without the knowledge of the appellant. The sale proceeds of US$35,000 were then sent to BGS Trading, a Canadian company. The sputtering machine and its sale proceeds formed the subject matter of the second charge.

Prosecution’s evidence

8 The prosecution’s case was relatively simple. With respect to the first charge, Ulrich Blankenstein (“Ulrich”), a manager at HSL, was informed by Amir Hamzah (“Amir”), a supervisor at HSL, pursuant to an audit, that 650 kg of Indium metal was missing in July 2001. Ulrich did not immediately investigate into the matter due to time and expense constraints. However, he had by December 2001 embarked on his own investigations and had learnt from Krishnamoorthy Ramesh (“Ramesh”), an accounts executive at HSL, that some of the Indium metal had been taken by the appellant.

9 After further questioning, Ulrich found out that Ramesh had, along with Perabu (an office assistant at HSL), Amir, Kumar (a delivery driver at HSL) and Thanabal (a storeman at HSL) packed at least four boxes each containing exactly 25 kg of Indium metal at the end of June 2001. They had then loaded the boxes onto the company’s van. Ramesh had then driven the van and delivered the boxes of Indium metal to the appellant’s residence at Tulip Gardens Condominium the day after. The appellant had received the delivery personally.

10 In addition, the prosecution adduced evidence of emails retrieved from the appellant’s computer showing that Spectromet Pte Ltd, a company owned by the appellant, had been selling Indium metal to one Echo Fang. Based on this evidence, the prosecution alleged that the appellant had misappropriated 100 kg of the Indium metal that had been entrusted to him.

11 As for the second charge, Ulrich had, in early July 2001, heard that the sputtering machine had been sold to Oryx, their competitor. Not surprisingly, he was not pleased. He questioned the appellant who denied selling the sputtering machine and instead stated that the sputtering machine had been scrapped and no monies received. Ulrich was placated by this explanation as he felt that, if Oryx had obtained the sputtering machine from a scrap dealer, then there was nothing that he could do. It was only later that Ulrich discovered that the sputtering machine had not been scrapped but had been sold.

12 The prosecution further called Chris Han, a former employee of HPE, who testified that he had assisted in arranging the sale of the sputtering machine to one Glenn. He had gotten Yeo, his wife’s friend, to stand in as a buyer for the sputtering machine as he knew that the appellant would not sell the machine to Glenn. They did not inform the appellant that the actual buyer would be Glenn. The appellant provided them with an invoice which instructed them to direct the proceeds to BGS Trading. Chris questioned the appellant who told him that this was Heraeus’ trading account (which it was not). The proceeds were accordingly wired out and the sputtering machine delivered. The prosecution thus alleged that the appellant had misappropriated the proceeds from the sputtering machine that had been entrusted to him.

Defence’s evidence

13 The appellant was the only witness for the defence. In relation to the first charge, the appellant admitted that he had been entrusted with the Indium metal as a director of HSL. However, he denied misappropriating the Indium metal. In this respect, he admitted that Ramesh had delivered some boxes to his residence, but he claimed that these boxes contained books and not Indium metal. When he was then questioned as to the missing Indium metal, he accused Amir of having falsely accused him, noting in particular that Amir had, in an earlier case, been convicted of the theft of platinum targets Furthermore, Amir had, in that case, also falsely accused him of masterminding the theft. I am of course familiar with that case as Amir had appealed to this Honourable Court in Amir Hamzah bin Berang Kuty v Public Prosecutor [2003] 1 SLR 617 and I had dismissed his appeal against conviction. The appellant further explained that the Indium that Spectromet Pte Ltd had sold to Echo Fang had come from another company called Shanghai Shuanxie and was not HSL’s missing Indium.

14 As for the second charge, the appellant admitted that he had been entrusted with the sale of the sputtering machine and that he had sold the machine to Yeo. He however claimed that he had not misappropriated the proceeds as the proceeds were ultimately paid to Malaysian Sheet Glass (“MSG”), as secret commissions, in return for their help in procuring for HSL customers from HSL’s competitors. He further alleged that this entire operation and payment had been done on the instructions of Dr Ritzert. He further explained that Dr Ritzert had instructed him to keep the entire matter secret and he had thus denied selling the sputtering machine to both Ulrich and the police.

The decision below

15 In relation to the first charge, the district judge accepted the evidence given by the prosecution’s witnesses that Amir, Ramesh, Humar and Perabu had on 31 June 2001 packed the Indium and that Ramesh had delivered the Indium to the appellant the next day. She rejected the appellant’s defence, holding that it was neither substantiated nor put to Ramesh when he was on the stand. As such, she convicted him on the first charge and sentenced him to a term of imprisonment of nine months.

16 As for the second charge, the district judge noted that the appellant’s defence of secret commissions was essentially a bare assertion as there was no supporting documentary evidence that showing that Dr Ritzert had approved of the payment. She also rejected his explanation as to his lies to Ulrich and the police. She further noted that, if his explanation was true, there was no reason why Dr Ritzert would have allowed a police report to be made in relation to the proceeds of sale. She thus convicted...