Wee Lee Harry v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Choor Singh J
• Judgment Date: 12 March 1980
• Neutral Citation: [1980] SGHC 10
• Docket Number: Magistrate's Appeal No 161 of 1978
• Date: 12 March 1980
• Year: 1980
• Published date: 19 September 2003
• Plaintiff Counsel: JBR Hazan QC and M Rubin (Amarjit Rubin & Partners)
• Citation: [1980] SGHC 10
• Defendant Counsel: EC Foenander and Sowaran Singh (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Power of district court,s 213 Penal Code (Cap 103),Whether in violation of Constitution,Sentence,Professional conduct,Delay in reporting offence,Legal Profession,Accepting restitution of property in consideration of concealing an offence,Protection against retrospective criminal laws,Corruption,Court's power to punish greater than prescribed at time of commission of offence,Offences,Constitutional Law,s 17 Criminal Procedure Code (Cap 113),Criminal Law,Fundamental liberties,Solicitor accepting restitution to conceal offence by assistant,Art 7(1) Federal Constitution,Accepting restitution of property in consideration of concealing an offence by assistant,ss 71 & 213 Penal Code (Cap 103)

The first question to be decided in this case is, what is the plain meaning of s 213 of the Penal Code (Cap 103) which reads as follows:

Whoever accepts, or agrees to accept, or attempts to obtain any gratification for himself or any other person, or any restitution of property to himself or any other person, in consideration of his concealing an offence, or of his screening any person from legal punishment for any offence, or of his not proceeding against any person for the purpose of bringing him to legal punishment, shall, if the offence is punishable with death, be punished with imprisonment for a term which may extend to seven years and shall also be liable to fine; and if the offence is punishable with imprisonment for life, or with imprisonment which may extend to ten years, shall be punished with imprisonment for a term which may extend to three years and shall also be liable to fine; and if the offence is punishable with imprisonment not extending to ten years, shall be punished with imprisonment for a term which may extend to one-fourth part of the longest term of imprisonment provided for offence, or with fine, or with both.

There is no reported decision in Singapore or Malaysia but there are two cases reported in India in which this section was considered. The first case is that of Hem Chandra Mukheriee & Anor v Emperor AIR 1925 Cal 85. This is a decision of the Calcutta High Court in which a divisional bench of that court (Newbould and Mukerji JJ) came to the conclusion that there must be an actual concealment of an offence, or screening of a person from legal punishment, or obstruction from proceeding criminally against a person in order to attract the application of s 213 of the Penal Code. There would be no offence if a gratification was accepted merely on a promise to conceal, screen or abstain and nothing more. Mukerji J who delivered the opinion of the court, explained the matter, thus, at p 86:

... Where there has been no concealing, screening or abstention no act or omission has been done affecting public justice; the mere acceptance or attempt to obtain or agreement to accept the gratification or restitution is an offence against property. If the accused has no intention to fulfil his part of the transaction, it would amount to an offence of cheating; if he has the intention, but does not carry it out, he does not commit any offence in law, however immoral his conduct may be.

A very strong argument in support of this view is afforded by the language of the section itself and a comparison of it with the language of some other sections of the Code. Section 213 says in consideration of his concealing an offence or of his screening any person from legal punishment for any offence or of his not proceeding against any person for the purpose of bringing him to legal punishment` and not in consideration of his agreeing or promising to conceal, etc. That the legislature was not unaware of the distinction between the two positions is not imaginable and is further evident from the language used in the first part of the section itself. Similar language has been used in s 214 while in s 215 the words are `under pretence or on account of helping etc.`

Upon the plain words of s 213, therefore, a promise or agreement or pretence of concealing or screening is not punishable...

The second case is a decision of the Bombay High Court in Biharilal Kalacharan v Emperor, AIR 1949 Bom 405 in which a divisional bench of that court (Chagla CJ and Gajendragadkar J) held that s 213 of the Penal Code does not require the actual concealment of an offence or the screening of any person from legal punishment or the actual forbearing of taking any proceedings. It was held that it is sufficient if an illegal gratification is received in consideration of a promise to conceal an offence or screen any person from legal punishment or desist from taking any proceedings. Once a person accepts a gratification and if the consideration for accepting that gratification is his concealing the offence or screening the person from legal punishment, the offence is complete. Chagla CJ who delivered the opinion of the court, explained the matter as follows, at p 406:

... Mr Lulla contends that the legislature does not enact that if a person receives gratification in consideration of his agreeing or promising to conceal an offence, or screen any person from legal punishment, he would be guilty of an offence. According to Mr Lulla, if the legislature intended to punish even an agreement or promise to conceal or screen, then those words should have found a place in the section. In our opinion, there is very good reason why those words do not find a place in the section. Because if those words had been placed there by the Legislature then the consideration would have referred only to something to be done in future. It would not have covered the case of past consideration. The neutral word used by the Legislature `consideration` is wide enough to cover both cases, the case of something having been done or achieved in the past and also the case of something to be done in future.The other difficulty that arises if we were to accept the interpretation put upon the section by Mr Lulla is as to the point of time when it could be said that the offence was complete. If we accept Mr Lulla`s interpretation, then the offence would not be complete when the accused received the gratification, but it would only be complete when the offence was concealed or a person was screened from legal punishment. Therefore, if the accused took a gratification after having promised to conceal the offence or screen the person giving gratification from legal punishment if he chose to break`s promise and not stand by his agreement then no offence would be committed, although he received both the gratification and committed a breach of the agreement quae the person who gave him the money. But the offence according to Mr Lulla would only be committed if he received the gratification and further went on to keep his promise and abide by his agreement. Unless the words of the section were clear and plain and compelled us to place that interpretation upon it, we think that the interpretation suggested by Mr Lulla results in serious difficulties and anomalies and should not be accepted ...

The decision in Chandra Mukherjee`s case was considered but the court declined to accept it on the ground that it was not a correct decision.

As was pointed out by Chagla CJ in Kalacharan`s , `in law a consideration may be as much a promise as something actually done or achieved`. In my opinion when a person receives gratification in return for his promise to conceal an offence, he is clearly receiving it `in consideration of his concealing an offence` within the meaning of s 213 of the Penal Code.

In my judgment, s 213 does not require the actual concealment of an offence or the screening of any person from legal punishment or the actual forbearing of taking any proceedings. It is sufficient if an illegal gratification is received in consideration of a promise to conceal an offence or screen any person from legal punishment or desist from taking any proceedings. Chagla CJ has correctly construed s 213 of the Penal Code in Kalacharan`s and I respectfully agree with him.

The appellant was convicted by a District Court on nine charges under s 213 of the Penal Code and fines totalling $30,000 were imposed on him.

The allegation in the first eight charges was that he had obtained restitution from one S Santhiran in consideration of his concealing offences of criminal breach of trust committed by the said Santhiran. In the ninth charge the allegation was that he attempted to obtain such restitution.

I propose to deal, first, with the first eight charges. The amount of restitution and the date on which it was received was set out in the eight charges as follows:

Charge Date Amount of restitution

1st Charge 4 March 1976 $39,181.31

2nd ` 9 March 1976 79,751.08

3rd ` 10 March 1976 20,877.68

4th ` 11 March 1976 87,146.05

5th ` 12 March 1976 41,000

6th ` 10 May 1976 8,000

7th ` 14 May 1976 1,000

8th ` 10 June 1976 21,000

$297,956.12

The appellant is an advocate and solicitor of the Supreme Court of Singapore. He has been in practice in Singapore since 1948. He is the sole proprietor of the well-known firm of Braddell Brothers. Since the commencement of the Legal Profession Act in 1966, he has been a member of the Council of the Law Society. He was President of the Law Society in 1975 and 1976.

The charges against the appellant arose from offences of criminal breach of trust committed in the years 1972 to 1976 by one Sivagnanam Santhiran, a legal assistant employed by the appellant in his firm of Braddell Brothers. In May 1978, Santhiran was convicted in a district court, on his plea of guilty, on a charge of criminal breach of trust of $147,510.04. He also admitted four other similar charges which were taken into consideration for the purpose of sentence. Santhiran was sentenced to nine months` imprisonment.

To bring home the first eight charges, the prosecution had to prove in respect of each charge:

(1) that Santhiran had committed criminal breach of trust;

(2) that the appellant had knowledge of Santhiran`s criminal breach of trust;

(3) that the appellant demanded restitution;

(4) that restitution was made by Santhiran; and

(5) that the appellant accepted restitution in consideration of his concealing Santhiran`s criminal breach of trust.

There was clear evidence in respect of the first four ingredients. They were admitted and were never challenged. The only contest was in respect of the fifth ingredient. The crucial issue before the learned district judge was whether or not the appellant had accepted the restitution in...