Dispute Resolution
Singapore
Legal Update
April 2014
In This Issue:
Tan Kim Hock Anthony v Public
Prosecutor: Singapore High Court
convicts 'servant' for dishonest
misappropriation and sentences
him to 5 months' imprisonment
Public Prosecutor v Yeo Seow
Hiong Edwin: Singapore District
Court sentences accused to a
total of 10 years' imprisonment for
criminal breach of trust by a public
servant and for forgery
Tey Tsun Hang v Public
Prosecutor: former NUS Law
professor acquitted of corruption
charges on appeal
Tan Kim Hock Anthony v Public Prosecutor:
Singapore High Court convicts 'servant' for
dishonest misappropriation and sentences him
to 5 months' jail
In a recent Magistrate's Appeal involving the offence of criminal breach of
trust ("CBT"), the Singapore High Court upheld the trial judge's decision on
both the conviction under s 408 of the Penal Code and the sentence of 5
months' imprisonment. Section 408 of the Penal Code deals with CBT by a
servant, and imposes a harsher penalty of a maximum of 15 years'
imprisonment instead of the standard 7 years' imprisonment for ordinary CBT
under s 406.
Facts
The Appellant, Brother Tan Kim Hock Anthony ("Tan"), a Marist Brother and
the former Principal of Maris Stella High School ("the School"), appealed
against his conviction and sentence. The trial judge found that Tan, in his
capacity as a servant of the School, had dishonestly misappropriated the sum
of $67,679.05 from the School's Chapel Building Fund ("Chapel Fund"), and
used the monies to renovate Champagnat House, the official residence of the
Marist Brothers in Singapore.
Issues
The relevant issues in this case concern the Appellant's challenge against his
conviction. Tan pleaded that (i) he had not been dishonest; (ii) he was not a
servant for the purposes of s 408; and (iii) it was unsafe to uphold the
conviction in light of excessive judicial interference by the trial judge which
had given rise to apparent, if not actual, bias.
Decision
Dishonest state of mind
In considering whether there had been any dishonest misappropriation, the
High Court applied ss 23 and 24 of the Penal Code, which provides that a
man has a dishonest state of mind in the criminal context if he intends, by
unlawful means, to cause either "wrongful gain" to one person or "wrongful
loss" to another.
The High Court first considered whether there was any wrongful loss. Tan
claimed that it was permissible for there to be a loose intermingling of funds
because the School and Champagnat House shared the common purpose of
advancing the Marist mission. However, on the evidence, Tan knew that the
Chapel Fund was intended for a specific school-related purpose that was
unconnected with Champagnat House, and that approval from the School's
Board of Management was required before he could draw from the Chapel
Fund. Tan later reimbursed the Chapel Fund, but the timing and manner of his
act further suggested that this was to cover up the misappropriation. Hence,
the evidence showed that Tan had intended to cause wrongful loss to the
School when he used the monies from the Chapel Fund to pay for the
renovations.
Alternatively, the High Court also considered whether any wrongful gain was
intended. Tan had initially contributed his salary to the Marist Brothers.
However, he had stopped contributing his salary for four years in order to
save for his old age. This suggested that Tan treated his personal funds as
separate from the Marist Brothers at the time of the offence. Therefore, by
using the misappropriated monies from the Chapel Fund, Tan had accrued a
wrongful gain as he avoided using his personal funds to pay for the renovation
works to Champagnat House.
Servant
The High Court pointed out that there was no legal bar to unincorporated
associations employing its own staff, and it was common practice for such
associations to do so. As the Principal of the School, Tan was accordingly
held to be its servant.
Excessive judicial interference
There was no excessive judicial interference by the trial judge as he had a
wide power to ask questions at any time during the course of the trial under s
167 of the Evidence Act. Both the quantitative and the qualitative impact of the
trial judge's questions had to be assessed. The High Court found that the trial
judge was justified in asking the questions to assist the Appellant in clarifying
his position, and that his intervention was practical in order to save the court's
time. His demeanour during trial did not indicate that he had prejudged the
matter and there was ultimately no denial of justice.
Sentence
Having upheld the conviction, the sentence was neither 'manifestly
inadequate' nor 'manifestly excessive' in the circumstances. The benchmark
sentence in an earlier s 406 case for ordinary CBT was 4 months'
imprisonment. The High Court noted that CBT by a servant (s 408) was an
aggravated form of s 406, and the trial judge should not have adopted 4
months as the benchmark. But in view of mitigating factors such as Tan's long
service at the School, his advanced age, and his status as a first-time
offender, the sentence was not manifestly inadequate. The policy behind
sentencing for CBT offences is to deter the offender and the general public
from committing such offences. It was therefore undesirable to impose a
nominal custodial sentence and 5 months' imprisonment was not manifestly
excessive.
Conclusion
This decision demonstrates how a Singapore court will treat CBT offences by
servants. Given the High Court's comments on the Appellant's sentence, it is
likely that future offenders may be sentenced more harshly in the absence of
mitigating factors.
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Public Prosecutor v Yeo Seow Hiong Edwin:
Singapore District Court sentences accused to a
total of 10 years' imprisonment for criminal
breach of trust by a public servant and for
forgery
Offences concerning criminal breach of trust ("CBT") under ss 406 to 409 of
the Penal Code have been described as a "sliding scale of severity". The most
severe offence in this group is CBT by a public servant, which attracts a
maximum jail term of life imprisonment, or a term of 20 years, and a fine. In a
recent case, the accused Edwin Yeo ("Yeo") pleaded guilty to 3 charges of
CBT by a public servant and 1 charge of forgery, and was sentenced to 10
years' imprisonment. For the purposes of sentencing, the District Court took
into account a further 4 charges of CBT by a public servant, and 12 charges of
money laundering.
Facts
Yeo was found to have misappropriated $1.6 million when he was Head of
Field Research and Technical Support ("FRTS") at the Corrupt Practices
Investigation Bureau ("CPIB"). Between 2009 to 2012, Yeo had used the
funds issued for FRTS' expenses for his personal expenditures, including
credit card payments and gambling. For each sum that he misappropriated,
he would cover it up with the funds issued for subsequent FRTS expenses.
This is a method known as "rolling-over".
There were at least two ways in which Yeo misappropriated the monies: (i) by
using the monies from encashed cheques that had been authorised for FRTS'
expenses; and (ii) by setting up an internet banking facility to effect fund
transfers from FRTS' bank account into his personal bank account.
Yeo also forged a Receiving Voucher which stated that full payment had been
made by the CPIB for the procurement of equipment when in fact, a sum of
$220,000 remained unpaid.
After factoring in the amount that had been rolled-over to pay for earlier
misappropriations and the amount recovered from Yeo's personal accounts, a
sum of around $1.6 million remained outstanding. As Yeo had pleaded guilty,
the District Court only considered the issue of sentencing.
Decision
The District Court stated that the relevant sentencing considerations in this
case were retribution and deterrence, especially since Yeo was a civil servant.
Several aggravating factors were raised in Yeo's case:
(i) he was a senior officer of a public institution and had misappropriated a
large sum of public funds;
(ii) the acts of misappropriation were perpetrated over 3.5 years, a
substantial period of time;
(iii) the offences were well-planned and difficult to detect in the
circumstances;
(iv) such acts endangered public confidence in the integrity of the public
service, especially the law enforcement agencies; and
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(v) full restitution had not been made.
The District Court was also of the view that Yeo was not a genuine first-time
offender as he had perpetuated his crimes over a long period of time. Yeo's
guilty plea also did not attract any substantial discount in the sentence since it
was through the Bureau's own investigations that the case came to light, and
not through any confession on Yeo's part. Finally, the District Court
emphasised that the focus of the sentencing court should be on the totality of
the sentence imposed, as opposed to the length of the individual sentences
and the number of consecutive sentences ordered. Therefore, the total
sentence given was 10 years' imprisonment with the CBT sentences ordered
to run consecutively.
Conclusion
This decision demonstrates the severity of the penalties that would be meted
out for public servants who have committed criminal breach of trust.
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Tey Tsun Hang v Public Prosecutor: former NUS
Law professor acquitted of corruption charges
on appeal
In a recent Magistrate's Appeal, the Singapore High Court overturned the
conviction of former law professor Tey Tsun Hang ("Tey") after finding that the
gratification Tey had received was not an inducement, and that there was no
objective corrupt element in the transaction. The Court accordingly acquitted
Tey of the charges under section 6(a) of the Prevention of Corruption Act
("PCA").
Facts
The Appellant, Tey, was a former law professor at the National University of
Singapore ("NUS"). He was convicted in the District Court for corruptly
receiving six acts of gratification from one of his students at the material time,
Darinne Ko Wen Hui ("Darinne"), as an inducement for showing favour in his
assessment of Darinne's academic performance.
Issues
The four issues on appeal centred on:
(i)
the admissibility of six statements made by the Appellant to various
officers of the Corrupt Practices Investigation Bureau ("CPIB") during
investigations between 5 April 2012 and 24 May 2012 (the
"Statements");
(ii)
whether NUS was a public body for section 8 of the PCA to apply;
(iii)
whether the elements of each offence had been made out; and
(iv)
whether the aggregate sentence was manifestly excessive.
The final issue was not considered since the conviction was overturned and
the sentences were set aside.
Decision
Admissibility of six statements
The Statements were challenged by the Appellant on the following grounds:
(i)
the Statements were procured by threats and inducements;
(ii)
the Statements were made under oppressive circumstances; and
(iii)
the combined effect of the Appellant's medical condition and sideeffects of the psychoactive medication rendered the Statements
involuntary.
In relation to the first ground, the High Court found that the Appellant's
allegations of threats and inducements were not made out on the facts as he
had failed to mention them to his counsel or the medical examiners whose
medical reports he had relied on.
As for the second ground, the High Court found that the allegations of
oppression, such as the pestering and frisking of the Appellant, or the room
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being too cold and stuffy, did not constitute oppression such that the
Appellant's will was adversely affected when he made the Statements.
As regards the third ground, the High Court took the view that the Appellant
had voluntarily given the Statements, notwithstanding his claim that he was
supposedly suffering from acute stress disorder at the material time.
Accordingly, the High Court concluded that the Statements were correctly
admitted as evidence.
Whether NUS was a public body for section 8 of the PCA to
apply
Section 8 of the PCA applies if:
(i)
it is proved that the accused person received the acts of gratification;
(ii)
the giver has or seeks to have any dealing with the employer of the
accused person; and
(iii)
the accused person is employed by a “public body” for the purposes of
the Act.
www.bakermckenzie.com
If section 8 of the PCA applies, it will be presumed that the recipient believed
that the giver was expecting to obtain a dishonest gain or advantage for the
act of improper gratification and that the recipient had the guilty knowledge
discussed below as the fourth element of a section 6(a) offence.
Section 8 of the PCA had to be interpreted by reference to the definition of a
"public body" as found in section 2 of the PCA:
"a corporation is a public body if it “has power to act under and for the
purposes of any written law relating to…public utility”.
The High Court found that NUS is a public body because it was an
undertaking of public utility since NUS is open to the public for tertiary
education and subject to the accountability framework in the National
University of Singapore (Corporatisation) Act. The High Court also found that
NUS is a corporation which has power to act under and for the purposes of
the Corporatisation Act relating to public utility, namely, public tertiary
education.
For the purposes of section 8 of the PCA, therefore, NUS is a public body,
and the Appellant had to rebut the presumption that his receipt of the six acts
of gratification was not made with the requisite mens rea.
Elements of each offence
The four elements of a section 6(a) offence are (i) the acceptance of
gratification; (ii) the gratification was an inducement or reward; (iii) there was
an objective corrupt element in the transaction; and (iv) the recipient accepted
the gratification with guilty knowledge.
While it was accepted that the first element was made out, the High Court
found that the gratification was not an inducement and there was no objective
corrupt element in the transaction.
The evidence showed that Darinne was in love with the Appellant at the
material time. On the facts, the High Court concluded that she was being
exploited by the Appellant and did not have any intention to seek favour from
the Appellant in her academic pursuits for any of the acts of gratification. The
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Appellant's disclosure of confidential information to Darinne could not have
influenced her grades since he was not teaching any compulsory courses for
her third and fourth years, and that she would be away on an exchange
programme for the first half of her third year. It would have been more natural
for Darinne to think that the Appellant had done so because he was returning
her feelings of affection.
The Appellant's exploitation of Darinne was a breach of NUS policies and an
abuse of his position as a lecturer. However, the High Court found that such
morally reprehensible conduct was not legally wrong and did not amount to
corruption under the PCA. The contemporaneous evidence showed there
could not be an objective corrupt element and therefore, the requisite mens
rea was not made out.
As to the last element of the offence, i.e. the guilty knowledge of the offender,
the High Court expressed doubts about it as a matter of law. The High Court
was of the view that the case law appeared inconsistent in the interpretation of
this element and that allowing the subjective knowledge of the offender to
come into play may lead to arbitrary results. The High Court, however, did not
conclusively rule on this element as the discussion was made academic in the
light of its findings above.
Conclusion
This decision sheds light on how the term "public body" is to be interpreted to
include educational institutions that serve a public utility (namely, the provision
of tertiary education). This has potentially far-reaching implications as the
evidential burden of proof is reversed when section 8 of the PCA kicks in and
there is a presumption of corruption.
However, the presumption is rebuttable if the accused is able to discharge his
burden of proving on a balance of probabilities that his receipt of the
gratification was not made with the requisite mens rea, which was what the
High Court found in this case.
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