Close | Public Prosecutor v Toh Thong Lim [2009] SGDC 505 |
| DAC 46101/2009, MA 412/2009 | |
| 24 Dec 2009 | |
| District Court | |
| Low Wee Ping | |
| Ong Luan Tze (DPP) for the prosecution, Lawrence Lim Cheng Hock for the accused |
Judgment
24 December 2009 District Judge Low Wee Ping: The charge 1. The accused was charged for having committed an offence of “engaging in a conspiracy to cheat”, under section 417, read with section 109, of the Penal Code (Cap 224). 2. The details of the charge were as follows:- “… that you, on or about September 2003 in Singapore, did engage with one David Rasiff, one Goh Chong Liang and others in a conspiracy … to cheat Standard Chartered Bank … to approve and deliver a sum of S$175,000.00 as a mortgage loan to one Norlela Binte Abdul Samad, the buyer of the flat, …” (Exhibit - C1A.) Plea of guilt 3. The accused pleaded guilty to the charge. Statement of facts 4. The accused admitted to the following statement of facts (Exhibit - PS1):- “1. The accused is one Toh Thong Lim (“the accused”), male/52 years old, residing at Blk 622 Yishun Ring Road #09-3178 S(760622). At the material time, the accused was a property agent with YR2000 Property & Services Pte Ltd. 2. The accused first became acquainted with one Goh Chong Liang @ Nick (“Goh”) sometime in December 2003. Goh was a property agent and Associate Director of Remax – The Real Centre, a real estate company. Background – The Cash Back Scam 3. Sometime in June 2005, the Commercial Affairs Department (“CAD”) received a complaint against Goh, and proceeded to conduct investigations into his property dealings. 4. The said investigations revealed the involvement of Goh and lawyers David Rasiff (“Rasiff”), and Tan Hock Boon David (“David Tan”) in what is known as a “cashback scam”. Rasiff and David were from the law firm M/S David Rasiff & Partners (“DRP”). David Tan was the conveyancing partner in DRP at the material time. 5. Investigations revealed that sometime around 2003, the cashback scam was hatched by Rasiff, David Tan and Goh. Briefly, the mechanism of the cashback scam was as follows: Goh, being a property agent, would convince the sellers and buyers of a property (usually a HDB flat) to declare an inflated amount above the actual agreed purchase price. In many cases, the buyers were not genuine buyers but were in cahoots with Goh. False documentation, such as CPF and employment records, was submitted to the banks in support of the mortgage loan application. Based on the false inflated purchase price, the banks would be deceived into issuing higher mortgage loans to the buyers, usually set at 80% of the purchase price. 6. It was agreed between Rasiff, David Tan and Goh that DRP would act for the sellers in the transaction. In respect of the mortgage loan issued by the bank to the sellers, the inflated amount (known as the “cashback amount”) would be transferred to a renovation company known as Danis Interior Design (“Danis”), disguised as “renovation costs”. The sellers or their agent liaised with David Tan and signed a Letter of Authorisation (“LOA”) prepared by David Tan for such payment to be made to Danis. In actual fact, no renovation works were ever carried out by Danis, which was a mere shell company. 7. Pursuant to the said cashback scam, Goh got one Abu Samah Bin Yacob (“Abu) to incorporate Danis and to set up the attending bank account. Thereafter, Abu’s role was to collect the cheques in respect of the cashback amount from David Tan and to bank it into the said bank account. Once the cheques were cleared, Abu would cash out the monies, keep his share, and hand over the remainder to Goh for distribution to the rest of the conspirators. The accused’s involvement 8. Sometime in August/September 2003, the accused was marketing a flat at Blk 312 Yishun Ring Road #02-1198 S(760312) (“the flat”) for the sellers namely, Lee Eng Cheong and Tan Lay Hoon (“the sellers”). The sellers wanted to sell their flat at a price of S$147,000.00. 9. During the course of marketing the flat for the sellers, the accused received a call from Goh enquiring about the flat. After viewing the flat with the buyer, Norlela Binte Abdul Samad, Goh spoke to the accused, and proposed a cashback transaction for the flat. Goh told them that the buyer was willing to meet the asking price of S$147,000.00, but he requested for the price of the flat to be marked-up to S$204,000.00. The difference in the actual price and the inflated price (i.e. “the cashback amount”), would have to be returned to the buyer. 10. The accused then informed the sellers about Goh’s request for a mark-up in the price of the flat to S$204,000.00, and told them that it was a requirement from the buyer. The accused also explained to the sellers that this was a cashback arrangement and the difference in the actual price and the inflated price would have to be returned to the buyer. After some consideration, the sellers agreed to Goh’s request. 11. Thereafter, Goh and the accused arranged for the sellers to sign the Option to Purchase for the flat stating that the resale price of the flat was S$204,000.00. This was despite the fact that the accused knew that the actual agreed sale price of the flat was S$147,000.00. 12. Subsequently, Goh informed the sellers and the accused, to go to DRP to settle the documentation after having attended the first appointment at the HDB. 13. During the appointment at DRP, the sellers were informed by a solicitor from DRP that the cashback amount of S$57,000.00 would be paid to a renovation company namely, Danis. The sellers were then asked by the solicitor to sign a LOA, to disburse S$57,000.00 of the sales proceeds of the flat to Danis. Facts relating to DAC 46101 / 2009 14. Sometime on or about September 2003, in Singapore, the accused engaged in a conspiracy with one David Rasiff, one Goh Chong Liang and others, to cheat Standard Chartered Bank (“the bank”). They agreed to deceive the bank into believing that the intended purchase price for the flat was S$204,000.00, when they knew that the purchase price was in fact S$147,000.00. 15. In consequence of the said conspiracy, the buyer of the flat, Norlela Binte Abdul Samad, submitted certain documents to the bank, namely an Opton to Purchase falsely, declaring the purchase price of the flat to be S$204,000.00, in her application to the bank for the mortgage loan of S$175,000.00. The bank was dishonestly induced to approve the said loan application and deliver a sum of S$175,000.00 as a mortgage loan to the said Norlela Binte Abdul Samad, which act the bank would not have done if it was not so deceived. 16. The accused is charged accordingly. 17. Goh has been charged with 22 counts of offences under Section 420 r/w 109 of the Penal Code (Cap 224), and 14 counts of offences under Section 465 r/w 109 of the Penal Code (Cap 224), and was sentenced to 5 years and 5 months imprisonment on 2 August 2007 for the said offences. 18. One of the former solicitors of DRP namely, David Tan, was charged with 16 counts of offences under Section 420 r/w 109 of the Penal Code (Cap224), and 11 counts of offences under Section 465 r/w 109 of the Penal Code (Cap 224), and was sentenced on 27 November 2008 to 5 years imprisonment for the said offences.” Convicted 5. I found the accused guilty and convicted him as charged. Antecedents 6. The accused did not have any criminal record. Mitigation plea 7. Mr. Lawrence Lim Cheng Hock, the defence counsel, tendered a written “Plea in Mitigation” (Exhibit - D1). 8. In summary, Mr. Lim pleaded that the accused be punished with a fine only. 9. The mitigating factors were as follows:- (a) The accused had played “a passive role in respect of the sale of the flat”; (b) At the viewing of the flat, the accused “did not participate in the said discussion between Nick (Goh) and the said owner”; (c) The accused was informed by Goh “to attend at the Property to witness the signing of the Option to Purchase. The application for a loan to Standard Chartered Bank was concluded without his prior knowledge”; (d) The accused signed the Option to Purchase only “with the intention of protecting his commission”; (e) The accused was only paid a commission of $2,000.00 by the owner of the flat. This was the agreed commission prior to Goh coming into the picture. The accused was not promised any additional reward for agreeing to sign the Option to Purchase as a witness; (f) The accused never had any other dealings with David Rasiff, David Tan Hock Boon or any of the parties involved in the “cashback scheme”; (g) The accused co-operated fully with the investigating officer; (h) The accused pleaded guilty at the first opportunity; (i) The accused did not have any previous criminal record; and (j) The accused is extremely remorseful. Prosecution’s submission 10. The deputy public prosecutor (DPP) tendered a “table of precedents for accused persons involved in the cashback scam” (“Prosecution’s table of precedents”) (Exhibit – P1.) 11. The DPP did not elaborate on the Prosecution’s table of precedents. She remarked that “the facts are almost the same.” 12. I noted that all the accused persons in the Prosecution’s table of precedents had received a custodial sentence. In particular, every accused person convicted under this similar section 417 of the Penal Code, had received a sentence of 2 weeks’ imprisonment. I therefore asked the DPP whether the prosecution was pressing for a custodial sentence. The DPP replied “No, prosecution leaving sentencing to the court”. Decision 13. I sentenced the accused to a maximum fine of $10,000.00. It was the maximum that a district court could impose. Appeal against sentence 14. On 4 December 2009, the Public Prosecutor filed a notice of appeal against the above sentence. 15. I now give the reasons for my decision. Punishment prescribed by law 16. Section 417 of the Penal Code (Cap 224) provides as follows:- “Whoever cheats shall be punished with imprisonment for a term which may extend to 3 years, or with fine, or with both.” 17. Section 109 of the Penal Code (Cap 224) provides as follows:- “Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.” The Prosecution’s table of precedents 18. To reiterate, the DPP had tendered a Prosecution’s table of precedents. (Exhibit P1.) In summary, the Prosecution’s table of precedents contained a list of 12 accused persons. They had all been involved in the cashback scam. The Prosecution’s table of precedents also stated the provision of law that the respective accused persons had been convicted under, the respective sentences imposed, and some other particulars. 19. The Prosecution’s table of precedents was useful only to a certain extent. It showed that, all the 6 accused persons who had been convicted under section 417 (“cheating”) of the Penal Code, had been sentenced to 2 weeks’ imprisonment. On the other hand, the DPP had, in answer to my question, stated that she was not pressing for a custodial sentence. She had also stated that it was “leaving the sentence to the court”. 20. I noted that the above 6 cases, were all “unreported decisions”. Worse, I did not have the respective statement of facts. 21. The Chief Justice had, in a recent case, warned about the use of “unreported decisions cited by the Prosecution”. In Luong Thi Trang Hoang Kathleen v Public Prosecutor “The distinction between the present case and the unreported decisions cited by the Prosecution 20. ……….. 21. The Prosecution’s s 47(3) case authorities were all unreported cases in which no written grounds of decision were given to explain the sentences imposed. Further, it appears that the sentences meted out in those cases were all based on a benchmark sentence or starting point of 12 months’ imprisonment. In this connection, I would first caution against relying on unreported decisions indiscriminately in determining the appropriate sentence for the particular case before the court. The dangers in doing so are clear. In Tay Kim Kuan v PP 22. … Although the sentences imposed in the Prosecution’s s 47(3) case authorities were consistently pegged at imprisonment of 12 months, we must remember that “benchmarks … should not … be viewed as binding or fossilised judicial rules” [emphasis added] (see Dinesh Singh Bhatia s/o Amarjeet Singh v PP 22. I respectfully adopted those observations. Accordingly, I did not rely on the prosecution’s table of precedents. Crossing the threshold 23 The pivotal issue in the present case was, therefore – whether the culpability of the accused had crossed the threshold for a deterrent custodial sentence to be imposed on him? 24. In the same above case of Luong Thi Trang Hoang Kathleen v Public Prosecutor “A postscript on deterrence and proportionality in sentencing 25. While a firm view should be taken of the offence under s 47(3) of the current Passports Act … , much will turn on the nature of the offence involved (in terms of, inter alia, the specific criminal conduct of the accused) and the culpability of the accused. The court should refrain from imposing a punishment that is disproportionate to the actual or potential harm or damage done to society. There is an established role for deterrent sentencing vis-à-vis certain type of offences (for instance, where it is sought to stem the incidence of a particular offence). But, even where this objective applies, there will arise from time to time cases in which it may not necessarily be appropriate to impose a deterrent sentence. The culpability of the accused should cross a certain threshold before a deterrent sentence is imposed on him or her. What that threshold is depends very much on the nature of the offence which had been designated or identified as warranting the imposition of a deterrent sentence. In the present case, on the evidence before the court, I did not consider that the Appellant had crossed the requisite threshold. Judges should not blindly apply any sentencing principle without considering all the circumstance of the case at hand, especially the culpability of the accused in that particular case. It cannot be overemphasised that the court must apply its mind to the facts of each case before it and determine the appropriate sentence.” (Emphasis as underlined added.) Mitigating factors 25. There were several significant mitigating factors in the present case. 26. First, the accused did not have any criminal record. For this, I adopted the following paragraph from the Sentencing Practice in the Subordinate Courts, 2nd Edition, at page 76:- “The court should have regard to the principle of parsimony which requires the selection of the least severe sentencing option that will be commensurate with the gravity of the offence and the goal or objective of the punishment. Where the offence carries the option of a fine, and involves a first offender, the general approach must always be to consider first if the offence can be dealt with appropriately by way of a financial penalty or some other non-custodial option (eg. probation).” 27. Second, in the whole “chain of conspiracy”, the accused was the lowest in culpability. The masterminds were David Rasiff, David Tan and Goh. David Tan has received a total sentence of 5 years’ imprisonment. Goh has received a total sentence of 5 years’ and 5 months’ imprisonment. Next in culpability, in descending order, was the buyer of the flat. She had agreed with Goh to ask for the inflated price. Next, would have to be the sellers of the flat. They had agreed to, and had executed, the purchase documents with the inflated price stated therein. Finally, and the lowest, in terms of culpability, was the accused. I agreed with defence counsel, Mr. Lim that the accused had played “a passive role” compared to the others in the conspiracy. He had not facilitated, instigated or even aided in the commission of the offence. His culpability was that he had “engaged” with the sellers in committing the offence. This was because he knew that the selling price had been inflated by his client, the sellers, and had continued acting as their agents. 28. Third, the accused had not gained financially from this offence. He had not received any share of the loan of $175,000.00 from the bank. He was paid only his agreed commission of $2,000.00, by the owner of the flat. This commission had been agreed to by his clients, the sellers, even before Goh had contacted the accused. 29. Fourth, the accused had indicated that he was pleading guilty at the first pre-trial conference on 5 October 2009. 30. Fifth, I was of the view that the accused should be treated as a “one-off” offender. I respectfully adopted what the Chief Justice had stated in Wuu David v PP “As regards the principle of general deterrence, I should add that, where one-off offenders such as the appellant are concerned, prosecution for the offence(s) committed will in itself provide some form of deterrence in most cases. As stated in Andrew Ashworth, Sentencing and Criminal Justice (Cambridge University Press, 4th Ed, 2005) at p 79: ‘Sentences are not the only form of general deterrent flowing from the criminal justice system. In some cases it is the process that is the punishment – being prosecuted, appearing in Court, and receiving publicity in the local newspaper – rather than the sentence itself. In some cases, the shame and embarrassment in relation to family and friends are said to have a more powerful effect than the sentence itself [emphasis added].’” Conclusion 31. In my judgment, for all the above reasons, the culpability of the accused in this case has not crossed the threshold for a deterrent custodial sentence to be imposed on him. 32. I, therefore, sentenced the accused to the maximum fine that I could impose as a district court, that is, $10,000.00. In default of paying the fine, the accused was to serve 1 month of imprisonment.
