Wong Kai Chuen Philip v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Chan Sek Keong J
• Judgment Date: 29 October 1990
• Neutral Citation: [1990] SGHC 79
• Docket Number: Magistrate's Appeal No 187 of 1989
• Date: 29 October 1990
• Year: 1990
• Published date: 19 September 2003
• Plaintiff Counsel: Anwarul Haque (Haridass Ho & Partners)
• Citation: [1990] SGHC 79
• Defendant Counsel: Roy Neighbour (Deputy Public Prosecutor)
• Court: High Court (Singapore)
• Subject Matter: Criminal Procedure and Sentencing,Consecutive sentence,Offence committed by solicitor,Aggravating factors to be considered,Principles,Sentencing,Criminal breach of trust,Serious offence,ss 402 & 409 Penal Code (Cap 224)

Cur Adv Vult

The appellant was as an advocate and solicitor of the Supreme Court of Singapore. He commenced practice as a sole proprietor under the name of Philip Wong & Co on 1 May 1969. His practice was mainly in the area of conveyancing. On 20 March 1989, he was struck off the rolls of advoca tes and solicitors by the Supreme Court on a disciplinary charge which was unrelated to the offences in respect of which the present appeal against sentence has been brought.

On 21 March 1989, the Council of the Law Society of Singapore passed a resolution vesting in the Law Society all moneys held in the clients` account in the name of the appellant` s firm and took control of it on 22 March 1989. The bank statement as at 31 March 1989 showed that the firm had a credit balance of $5,903.60 in the clients` account.

On 11 April 1989, the appellant surrendered himself to the Commercial Affairs Department and he was formally arrested on the following day. On 14 April 1989, he was adjudged a bankrupt by the High Court.

On 24 April 1989, the appellant was charged with six charges of criminal breach of trust in his capacity as an agent of clients` moneys held in the clients` account of the firm. In the event, the prosecution proceeded with only two charges, to which the appellant pleaded guilty, on the agreement that the remaining four charges were to be taken into consideration for the purpose of sentence. The material facts of the six charges may be tabulated thus:

Case no Amount No of Period

involved clients

DAC 4241 $143,220.15 7 10.01.89 - 09.03.89

DAC 4242 $683,039.40 9 25.01.88 - 31.12.88

DAC 4243 $650,419.50 1 13.05.88 - 28.12.88

DAC 4244 $163,961.29 6 20.04.87 - 29.12.87

DAC 4245 $128,879.21 3 14.03.86 - 15.11.86

DAC 4246 $ 71,712.81 4 01.01.85 - 15.06.85

Total $1,841,232.20 30

The statement to facts which the appellant accepted for the purpose of pleading guilty to the two charges under DAC 4241 and DAC 424 2 also disclosed that the bulk of the money misappropriated from the clients` account consisted of moneys paid by clients for completion of property transactions, payment of stamp fees and also one large sum held as stakeholder. There is no disclosure on w hat the appellant had done with the moneys dishonestly misappropriated by him over the years.

The appellant was represented by counsel in the plea of guilty. Counsel put forward the following factors in mitigation:

(1) he surrendered himself and co-operated with the police, resulting in the expedited completion of investigation;

(2) he pleaded guilty and therefore demonstrated his remorse;

(3) he was a bankrupt and struck off the roll of advocates and solicitors;

(4) he was a man of good character and contributed to community service in the following respects:

(a) as a member of the Dunearn Secondary School Advisory Board from 1969- 1989;

(b) as a tutor in the Postgraduate Law Course from 1980- 1988;

(c) as the President of the Singapore Ten Pin Bowling Congress from 1985- 1989/March, during which he helped to raise $430,000;

(d) as a blood donor for 18 times from 1980- 1989.

The senior district judge sentenced the appellant to serve, consecutively, a term of three years` imprisonment on each of the two charges. In his grounds of decision, the judge reminded himself that the maximum sentence he could impose for the two offences was seven years` imprisonment for each offence, so that the three years he actually imposed was a little short of one-half of the maximum sentence within his own jurisdiction. He accepted all the mitigation factors I have mentioned above save that the appellant` s record of community service was not expressly adverted to in his grounds of decision.

The judge was of the view that in spite of what he regarded as strong mitigation factors, he could not overlook the following facts: (i) t he appellant misappropriated moneys he was holding as an advocate and solicitor, a position of trust in society; (ii) the regularity of the misappropriations over the period from 1985 to 1989; (iii) the total amount involved (which was more than $1.8m); (i v) the absence of any restitution.

The appellant was dissatisfied with the sentence and has now appealed against it. Before me, his counsel has advanced a number of grounds of appeal which I shall consider under the following heads:

Strength of mitigation factors

The submission under this head was that the judge had failed to give due weight to the mitigation factors generally and in particular to the appellant` s previous good character. In his grounds of decision, the judge stated that the appellant ` has convincingly demonstrated his remorse for his criminal acts` (by his co-operation) and in respect of which the judge considered as of ` paramount importance` . He also said it was to the appellant` s ` credit` that he co-operated with the CAD and that ` Just as admirable a factor to be considered in his favour is the fact that he had voluntarily surrendered himself to the CAD` . This is rather fulsome language to describe the mitigation quality of the surrender and the plea of guilty. These statements plainly show that there is no substance in counsel` s submission on this point.

However, having given careful consideration to the entire background in which the offences were committed and, in particular to the conduct of th e appellant during the period when he was misappropriating his clients` moneys, I am of the view that the judge has given undue weight to these two factors.

On the statement of facts, the appellant misappropriated during 1988 a total sum of about $1.33m and in the three months of 1989 he misappropriated about $143,000. These sums were misappropriated during a period when (i) a judgment for $235,000 had b een obtained against him in respect of which (ii) a petition had to be filed by the judgment credit or to make him a bankrupt and (iii) which he was so made on 14 April 1989 and (iv) when he had been ordered to show cause in disciplinary proceedings against him. The appellant did not appear to have been remorseful during this period. In fact, he conteste d the claim against him for the refund of $235,000 (which represented the 10% deposit for the purchase of a property from the appellant` s client) on the ground that his client had forfeited the said deposit when the truth was that he had dishonestly misappropriated this sum between 29 March 1988 to 31 August 1988 as admitted in the statement of facts.

Although the appellant surrendered himself to the CAD, it is significant to note that this event occurred at a time when he really had no other choice. He had no choice because the Council of the Law Society had taken over the clients` account of his firm and it was only a question of time before his misdeeds came to light. This is in stark contrast to the defence he put forward in respect of the claim fo r $235,000 at a time when his misdeeds remained secret and safe with him. Similarly, the plea of guilty was not made in a case where the...