Close | Public Prosecutor v Toh Beng Hua [2009] SGDC 506 |
| DAC 46069/2009, MA 411/2009 | |
| 24 Dec 2009 | |
| District Court | |
| Low Wee Ping | |
| Ong Luan Tze (DPP) for the prosecution, Peter Keith Fernando for the accused |
Judgment
24 December 2009 District Judge Low Wee Ping: The charge 1. The accused was charged before me, 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 December 2003 in Singapore, did engage with one David Rasiff, one Tan Hock Boon David, one Goh Chong Liang and others in a conspiracy … to cheat United Overseas Bank Limited … to approve and deliver a sum of S$316,000.00 as a mortgage loan to one Jaliah Bte Atan, the buyer of the flat, …” (Exhibit - C1A.) Plea of guilt 3. The accused pleaded guilty to the charge. Statement of facts 4. The accused also admitted to the following statement of facts (Exhibit - PS1):- “1. The accused is one Toh Beng Hua (“the accused”), male/39 years old, residing at 87 Westwood Avenue S(648409). At the material time, the accused was a property agent with Realtor Hup. 2. The accused 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 November/December 2003, the accused was marketing a flat at Blk 327 Tan Ching Road #05-16 S(610327) (“the flat”) for the sellers namely, Abdul Hamid Bin Saduddin, Salamah Binti Hussin and Rogaya Bte Abdul Hamid (“the sellers”). The sellers wanted to sell their flat at a price of S$275,000.00. 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, Jaliah Bte Atan, Goh spoke to the sellers and 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$275,000.00, but he requested for the price of the flat to be marked-up to S$340,000.00. The difference in the actual price and the inflated price (i.e. “the cashback amount”), would have to be returned to the buyer. After some consideration, the sellers agreed to Goh’s request. 10. 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$340,000.00. This was despite the fact that the accused knew that the actual agreed sale price of the flat was S$275,000.00. 11. 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. 12. During the appointment at DRP, the sellers and the accused were then informed by David Tan that the cashback amount of S$65,000.00 would be paid to a renovation company namely, Danis. The sellers were then asked by David Tan to sign a Letter of Authority, to disburse S$65,000.00 of the sales proceeds of the flat to Danis. David Tan also informed the sellers and the accused that the sellers did not have to pay any legal and conveyancing fees. Facts relating to DAC 46069 / 2009 13. Sometime on or about December 2003, in Singapore, the accused engaged in a conspiracy with one David Rasiff, one Tan Hock Boon David, one Goh Chong Liang and others, to cheat United Overseas Bank Limited (“the bank”). They agreed to deceive the bank into believing that the intended purchase price for the flat was S$340,000.00, when they knew that the purchase price was in fact S$275,000.00. 14. In consequence of the said conspiracy, the buyer of the flat, Jaliah Bte Atan, submitted certain documents to the bank, namely an Option to Purchase falsely, declaring the purchase price of the flat to be S$340,000.00, in her application to the bank for the mortgage loan of S$316,000.00. The bank was dishonestly induced to approve the said loan application and deliver a sum of S$316,000.00 as a mortgage loan to the said Jaliah Bte Atan, which act the bank would not have done if it was not so deceived. 15. The accused is charged accordingly. 16. 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. 17. 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 Peter Fernando, the defence counsel, tendered a written “Plea in Mitigation” (See exhibit - D1). 8. In summary, Mr Fernando pleaded that there were “several crucial extenuating aspects of the case” which this court should consider in favour of the accused. He concluded that this court, therefore, “ought to impose a substantial fine only, on the accused”. 9. The mitigating factors were listed as follows:- (a) The accused “has no criminal record, and this, therefore, was his first and only brush with the law”; (b) The accused “had “many good character features”; (c) The offence the accused committed “was one in which he played a minor role compared to others involved in the deceit of the bank”; (d) The accused “pleaded guilty without wasting the Court’s time and resources of the Prosecution”; (e) The offence was “committed a long time ago which is now 5 ½ years ago”; (f) The accused “did not gain anything from the ‘cashback’ i.e. the loan that was disbursed to Mdm. Jaliah”; (g) “UOB has not lost financially at all”; (h) The offence is “one under s.417 of the Penal Code (Cap224) which allows the Court to impose a fine only on the accused”; and (i) “More serious cases in Edmund Nathan v PP and Seaward v PP, of offences under s.420 of the Penal Code, were punished with 1 day’s imprisonment coupled with fines”. 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 the sentence 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. Fernando, that the accused had played “a minor 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 $316,000.00 from the bank. He had received only his usual agency commission as the housing agent of the sellers. 29. Fourth, the accused had indicated that he was pleading guilty at the first pre-trial conference on 5 October 2009. 30. Fifth, I agreed with Mr. Fernando that the accused should be treated as a “one-off” offender. He submitted that I should adopt 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.
