Wang Wang Pawnshop Pte Ltd and Others v K J Tiffany and Others

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 04 March 2004
• Neutral Citation: [2004] SGHC 50
• Date: 04 March 2004
• Subject Matter: Whether criminal revision appropriate course of action in most cases involving unlawful pawning,Section 31 Pawnbrokers Act (Cap 222, 1994 Rev Ed),Criminal Procedure and Sentencing,Whether judge in disposal inquiry obliged to restore items to last in lawful possession,Disposal of property
• Docket Number: Criminal Revision No 1 of 2004
• Published date: 09 March 2004
• Defendant Counsel: Eugene Lee Yee Leng (Deputy Public Prosecutor),Tan Kay Bin (Tan Kay Bin and Co),Colin Phan Siang Loong (Donaldson and Burkinshaw),Axel Chan and Terence Seah (Kenneth Tan Partnership),Chee Yew Chung (Tan Seck Sam and Partners)
• Court: High Court (Singapore)
• Plaintiff Counsel: Christopher Anand Daniel and Ganga Avadiar (Allen and Gledhill)

4 March 2004

Yong Pung How CJ:

1 The petitioners are a group of pawnshops incorporated in Singapore who were seeking a discharge or variation of the order made by the district judge in Disposal Inquiry No 22 of 2003. The inquiry was held to determine who would take possession of 177 items of jewellery that had been seized in connection with a police investigation leading up to the prosecution and conviction of one Kalimahton bte Md Samuri (“Kalimahton”) for criminal breach of trust under s 406 of the Penal Code (Cap 224, 1985 Rev Ed). The petitioners were three of the 15 claimants for the seized items. They contended that the judge had made fundamental errors of law, which occasioned a clear failure of justice, by failing to award some of the items to them. I was not persuaded by their arguments and dismissed the petition. I now give my reasons.

Background

2 Both the petitioners and the respondents in this case were victims of Kalimahton, a trickster of the highest calibre, who earned herself the nickname of “Pawnshop Princess” with her exploits. Between 1997 and 1998, she posed as a member of the Brunei royal family and managed to convince So Sock Wah (“So”), a jewellery merchant (trading as the first respondent, K J Tiffany), and Ho Khiam Seng (“Ho”), a director of a pawnshop, into releasing a large quantity of items to her. The verbal agreement between So and Kalimahton was that Kalimahton could hold the items while she considered whether she wished to purchase them. She would pay the purchase price to So for items she wished to keep, and return the items that she had no intention of purchasing. Ho, on the other hand, had entrusted items on loan to Kalimahton on a personal basis.

3 Unbeknownst to both of them, Kalimahton took the items and pawned them with the petitioners over a period of time. Further, on 28 October 1998, Kalimahton managed to deceive Lim Wing Kee, who was then the managing director of the petitioners, into releasing some of the items without proper redemption. Kalimahton then took these items and re-pledged them with other pawnshops. She used the moneys to finance her extravagant lifestyle.

4 On 4 November 1999, So reported to the police that Kalimahton had misappropriated some $6m worth of jewellery which had been entrusted to her. In the course of investigations, the police seized items from the petitioners as well as from several other pawnshops that Kalimahton had dealt with.

5 Kalimahton subsequently pleaded guilty to eight counts of criminal breach of trust under s 406 of the Penal Code. A disposal inquiry was then held to determine who should take possession of the seized items. There were three categories of claimants:

(a) M/s K J Tiffany, Lee Gems & Fine Jewellery Pte Ltd, Queens Jewellers Pte Ltd and Ho Khiam Seng, who were persons or businesses who had entrusted items to Kalimahton and were claiming as original owners of the items (hereafter referred to collectively as “the original owners”);

(b) the petitioners, who were the pawnshops where Kalimahton had initially pledged the items; and

(c) Kwek Chio Liang, Ban Sun Pawnshop Pte Ltd, Ban Soon Pawnshop Pte Ltd, Fook Hin Pawnshop Pte Ltd, Min Tai Pawnshop Pte Ltd, Da Li Pawnshop Pte Ltd and Thye Lian Pawnshop Pte Ltd, who were persons or pawnshops who had taken the items after Kalimahton had wrongfully redeemed them from the petitioners.

6 After hearing submissions from the various claimants, the judge issued an order returning 101 of the items to the original owners, 56 items to the petitioners and 20 items to Kwek Chio Liang. Being dissatisfied with the order, the petitioners prayed for this court to exercise its revisionary jurisdiction, either to discharge the order or vary the order to award possession of all items to them.

Grounds for revision

7 The petitioners contended that the judge had made two fundamental errors of law in failing to award possession of all the items to them.

8 First, they argued that the primary function of a judge presiding over a disposal inquiry was to restore the seized items to the last person in lawful possession of the items. As such, since the petitioners took the items from Kalimahton in good faith, they were therefore entitled to have the items restored to them. Second, the petitioners submitted that not only were they in lawful possession but they were also entitled to the items because they had acquired good title by virtue of the fact that they were bona fide purchasers for value without notice.

Duty of a judge in a disposal inquiry

9 The petitioners’ first argument was premised on a misconception that a judge presiding over a disposal inquiry is obliged to simply restore the items to the person last in lawful possession. I found this to be an overly simplistic delineation of a judge’s duty at a disposal inquiry. While that may have been the view of Desai J in Purshottam Das Banarsidas v State (1952) 53 Cr LJ 856, I had previously expressed a different opinion in Sim Cheng Ho v Lee Eng Soon [1998] 1 SLR 346 where I noted the following at [8]–[9]:

[T]he mere inability to decide questions as to title does not and cannot lead to an inability to have regard to the party who holds title. Title and possession are related concepts. In many cases, the right to possession arises from the fact of having title. …

[The court] must look to the facts of each case to ascertain the party who is entitled to possession.

[emphasis in original]

10 I saw no reason to depart from my earlier decision. Thus, a judge is not limited in his discretion to simply restoring the items to the last person in lawful possession. This is especially true where the disposal inquiry relates to items that have been pledged with a pawnshop. In these cases, the judge’s discretion to dispose of the items under the Criminal Procedure Code (Cap 68, 1985 Rev Ed) is also governed by s 31 of the Pawnbrokers Act (Cap 222, 1994 Rev Ed), which reads:

Delivery to owner of property unlawfully pawned

31.—(1) In each of the following cases:

(a) if any person is convicted under this Act before a Magistrate’s Court of knowingly and designedly pawning with a pawnbroker anything being the property of another person, the pawner not being employed or authorised by the owner thereof to pawn the property;

(b) if any person is convicted in any court of any offence against property which offence is defined or dealt with by any of the provisions of sections 378 to 420, both inclusive, of the Penal Code, and it appears to the Magistrate’s Court or other court that the property has been pawned with a pawnbroker; or

(c) if in any proceedings before a Magistrate’s Court or other court it appears to the court that any goods and chattels brought before the court have been unlawfully pawned with a pawnbroker,

the court, on proof of the ownership of the goods and chattels, may, if it thinks fit, order the delivery thereof to the owner, either on payment to the pawnbroker of the amount of the loan or any part thereof, or without payment thereof or of any part thereof, as to the court, according to the conduct of the owner and the other circumstances of the case, seems just and fitting.

11 In Thai Chong Pawnshop Pte Ltd v Vankrisappan [1994] 2 SLR 414 at 416, [5], I considered the application of s 31 thus:

Where the items in question are articles falling within the categories defined by s 31(1)(a), (b) or (c) of the Act, the procedure is modified by s 31(1) of the Act, which highlights two issues: ownership of the pawned item, and payment to the pawnbroker. The Act, however, still entrusts a wide measure of discretion to the judicial officer. If ownership is proved, the court possesses the discretion to award the item to its owner if it thinks fit. At the same time, the statute gives the court absolute discretion to decide whether to order payment at all to the pawnbroker, and, if any is ordered, the amount of that payment.

It is apparent that a judge is under no obligation to restore the items to the person last in lawful possession and is, in fact, duty-bound under s 31 to examine the issue of ownership.

Whether the petitioners have obtained “good title”

12 The petitioners contended that they were the rightful owners of the items, as they had managed to obtain “good title”. By “good title”, the petitioners were, of course, referring to a pawnshop’s right to sell the pledged items when a pledgor does not redeem the items. I would clarify that a pawnshop does not acquire good title in an item by virtue of it being pawned. Instead, due to the unique nature of a pledge, a pawnshop is often said to have obtained “special property” in an item. Be that as it may, I shall apply the terminology used by the petitioners. Hence, where I refer to the petitioners obtaining “good title”, I should be taken to mean that they have obtained “special property” in the items.

13 In any situation where we deal with the transference of title by non-owners, we are bound by the rule encapsulated in the Latin phrase nemo dat quod non habet. In short, the petitioners would only have received as good a title as Kalimahton was able to give.

14 Given the above, it was clear that the petitioners needed to show that Kalimahton had the authority to pledge the items. Otherwise, the petitioners would not be able to claim any interest in the items at all, no matter how careless the...