Yang Yan Lii v Loh Sueh S"en

• Jurisdiction: Singapore
• Judge: Gilbert Low Teik Seang
• Judgment Date: 14 December 2002
• Neutral Citation: [2002] SGMC 25
• Published date: 19 September 2003
• Year: 2002
• Citation: [2002] SGMC 25
• Court: Magistrates' Court (Singapore)

Judgment

GROUNDS OF DECISION

1 The complainant, Mr Yang Yan Lii, who is also known as "Jack Yang" commenced private prosecution against the respondent, Mr Loh Sueh S’en, who is also known as "Sam Loh" vide 15 cheating charges under section 415 read with section 417 of the Penal Code. Of these charges, seven of them (marked as P1, P2, P8, P11, P13, P14 and P15) were based on licences purportedly issued by the respondent to the complainant whilst the remaining eight charges (marked as P3, P4 P5, P6, P7, P9, P10 and P12) were based on invoices purportedly issued by the respondent to the complainant.

2. At the end of the trial, I acquitted the respondent of all the charges. Dissatisfied with my decision, the complainant successfully obtained the Public Prosecutor’s fiat to appeal against the respondent’s acquittals pursuant to section 245 of the Criminal Procedure Code.

COMPLAINANT'S CASE

3. A summary of the complainant’s case could be found in paragraphs 14 to 41 of the written submissions of Mr Steven Seah, counsel for the complainant, who had endeavoured to summarise the complainant’s rather lengthy main evidence in a succinct manner. After comparing with the transcript of the notes of evidence, I accepted Mr Seah’s summary of the complainant’s evidence as an accurate reflection of the latter’s testimony. Similarly, I also accepted his summary of the evidence of the other two main witnesses for the complainant, namely, Mr Wang Tao Lung and Mr Paul Edwards in paragraphs 42 to 46 and paragraphs 48 to 55 respectively, as an accurate reflection of their testimonies in Court.

4. The essence of the ‘licence’ charges was that the respondent had issued or caused to be issued false licence agreements in the name of "Special Effects Station", a non-existent business entity, purportedly to grant rights to Horng Muh Studio Inc. a partnership in Taiwan where the complainant was one of the shareholders, for the use of music contained in specified music libraries. As the respondent knew or ought to have known that he did not have the licence or authority to grant such rights, he had thereby dishonestly induced the complainant to deliver monies via telegraphic transfer to his bank account in Singapore.

5. The essence of the ‘invoice’ charges was that the respondent had issued invoices to Horng Muh Studio Inc. to the attention of the complainant for a one-time buy out fee for the specified works of a specified music publisher and as the respondent knew or ought to have known that he did not have the licence or authority to grant such buy-out rights for use in Taiwan, he had dishonestly induced the complainant to deliver monies via telegraphic transfer to his account in Singapore.

RESPONDENT’S CASE

6. The respondent elected to give evidence from the witness stand for all the charges. He testified that after graduating from university in 1992, he joined Audio Music Pte Ltd and Music & Melody Publishing Pte Ltd in 1993 where his boss was Mr Paul Edward. At Music & Melody Publishing Pte Ltd, he was involved in the music publishing business. The boss at the time being Mr Edward, he had to seek Edward’s instructions and approval whenever transactions were made or licences were issued. By 1995, he was made a director in Edward’s companies. In 1994, with Edward’s knowledge, he started his own company called Megaton Enterprises Pte Ltd which started operations in late 1995 or 1996. By then, he had stopped receiving a salary from Paul Edward and had instead received commission from Edwards on a project basis.

7. Whilst he was under the employ of Edward in 1993, he received a call from the complainant who enquired about the sale of compact discs under the Sonoton label. As Edward had scheduled a business trip to Taipei at that time, he arranged for the complainant to meet Edward there. Subsequently, Edward concluded the deal to sell Sonoton discs to the complainant and instructed the respondent to use his personal account to receive the money from the complainant. This was because Music & Melody Publishing Pte Ltd only had rights to sell the discs or grant licences in Singapore and Malaysia and the payment of the money into the respondent’s personal account would prevent disclosure of the receipt in the company’s accounts. For this, the respondent would receive a 30 percent commission.

8. Between 1993 to 1996, further transactions were conducted with the complainant in the similar manner for discs from other music libraries such as Image Library, Match Music, Primrose Music and Arcadia. After the initial Sonoton transaction, the complainant would liaise directly with the respondent via telephone who in turn would receive instruction from Edward for the money to be remitted either to Audio Musical Pte Ltd’s account or the respondent’s personal account. Thereafter, the money, if sent to his personal account, would be handed to Edward with him retaining a certain percentage as commission. During this period, the complainant did not request for any invoices or licences to be issued.

9. It was only in late 1998 and early 1999 when the complainant requested the respondent to issue backdated invoices for the previous transactions. By then, the respondent was operating his own company and he accordingly issued them under the letterhead of his own company out of convenience. As for the licences, the complainant only requested for them in 1997. Upon the complainant’s request, the respondent informed Paul Edward who then instructed him to use the letterhead of "Special Effects Station" which was Paul Edward’s former business entity to issue the licence. The respondent also testified that the complainant continued to do business with him even until 2000.

10. The respondent called one Lin Suming, also known as "Helena Lin", who testified about an on-going court action in Taiwan by her company which currently held the copyright for Arcadia products against the complainant for copyright infringement.

THE LAW

11. The charges against the respondent were drafted such that they were punishable under section 417 of the Penal Code although potentially, they could fall under section 420 of the same Code as the dishonest inducement to deliver property limb (in the form of money) under the latter provision was invoked. However, as a section 420 charge is a seizable offence and one which a District Court but not a Magistrate’s Court has cognizance of (by virtue of section 8(1)(a) of the Criminal Procedure Code), section 336(7) of the Criminal Procedure Code is triggered off. The present case being a private prosecution and the fact that I am only a Magistrate (although the Deputy Public Prosecutor’s fiat to appeal wrongly stated my position as a District Judge), the charges are drafted such that they are punishable under section 417. Notwithstanding this, by virtue that the property limb is invoked as in a section 420 situation and as seen from Mr Seah’s reliance on cases interpreting section 420 in his submissions, the latter cases were relevant.

12. The principles in which the Court had to consider in cases of cheating where the victim was deceived and induced to deliver property were summarised by the Honourable the Chief Justice in Gunasegeran s/o Pavadaisamy v. PP [1997] 3 SLR 969 at 980:

"42. In my view, in order to find that an offence has been committed under s 420, read together with s 415, three elements of the offence must be satisfied. First, the victim must be deceived. To put it another way, deception must have been practised on the victim. This is to state the obvious, as this is the whole basis for a charge being brought against the deceiving party.

43. Secondly, there must have been an inducement such that the victim delivered any property to any person. There is no requirement that this inducement must necessarily be oral, although in most cases that would usually be the case. There is also no need for this inducement to be express, as compared to it being inferred. As an example, the deceiving party need not specifically induce the victim to deliver some property (eg by saying or doing something specifically such that the victim was induced), if it could reasonably be inferred from the surrounding circumstances that this was clearly what the deceiving party was seeking to do (ie if the totality of the actions of the deceiving party pointed to him trying to induce the victim to deliver some property, even though any particular act of the deceiving party, when taken alone, may not amount to an inducement enough to induce the victim to deliver up some property). Further, this inducement must lead to the delivery of the property. If there was delivery of some property but no inducement by the deceiving party, then it can hardly be said that there was any form of cheating, even if the deceiving party had the intention to cheat. The whole purpose of s 420 lies in the protection of innocent parties against being cheated by unscrupulous persons. Thus, if the deceiving party failed to do anything which the innocent party relied on, such that he or she delivered some property, this would hardly be considered to be cheating. In addition, there is no requirement that the property delivered must belong to the victim (see PP v Kalpanath Singh [1995] 3 SLR 564) nor must the property be delivered to the person who deceived the victim. In my opinion, the wording of s 420 was not meant to be so narrow that there could only be cheating when the victim delivers property to the deceiving and dishonest party through his inducement. Similarly, in Seaward v PP [1994] 3 SLR 369, I held that the inducement need not be the sole or even main reason for the delivery of the property by the deceived party. So long as the deceiving party’s deception played some part in inducing the victim to deliver some property, this element in the offence would be satisfied. As to what constituted property, it is not in dispute that money for the...