Close | Public Prosecutor v Anuar Bin Ahmad [2010] SGDC 18 |
| DAC 9592/2009, MA 339/2009 | |
| 15 Jan 2010 | |
| District Court | |
| Kaur Jasvender | |
| Hee Mee Lin (Deputy Public Prosecutor) for the prosecution, Kertar Singh (Kertar & Co) for the accused |
Judgment
15 January 2010 District Judge Jasvender Kaur: 1 I acquitted the accused on the following charge that he was tried before me: that you, on about the 31st day in March 2006, on board a bunker barge “Premium”, Singapore, being an agent, to wit, a marine surveyor in the employ of Unispec Services (Singapore) Pte Ltd, did corruptly accept from one Koh Chin Lee Alex, a checker of Consort Marine Services Pte Ltd, for yourself, a gratification of a sum of $500 (five hundred dollars) as a reward to do an act in relation to your principal’s affairs, to wit, certifying that the bunker barge “Premium” had supplied 2685.158 metric tonnes of marine fuel oil to a vessel “SG Prosperity” when the said bunker barge “Premium” actually supplied about 2,655 metric tonnes of marine fuel oil to “SG Prosperity”, which is about 30 metric tonnes lesser than the certified amount, and you have thereby committed an offence punishable under section 6(a) of the Prevention of Corruption Act, Chapter 241. The Public Prosecutor now appeals against that acquittal. The prosecution’s case Undisputed facts 2 Unispec Services (Singapore) Pte Ltd (‘Unispec’) is in the business of providing marine surveying services to clients in the shipping industry. This involves providing an independent surveyor to be present whenever a vessel wants to refuel in Singapore waters. The refuelling is termed as bunkering in the shipping industry. 3 The accused was engaged to carry out the surveying for the vessel SG Prosperity which was supplied marine fuel oil 380 CST by the bunker barge Premium on 31 March 2006 between 1am to 7.30am. Unispec was engaged by the owners or charterers of SG Prosperity to ensure that the correct quantity and quality of marine fuel oil was supplied to the vessel during the bunkering operation. 4 The bunker barge Premium belonged to Consort Marine Services (‘Consort’). The bunker clerk on board the barge Premium was Alex Chee Choon Teck. (‘Chee’) Trial-within-a-trial on statement marked ‘B’ 5 The prosecution sought to admit a statement recorded from the accused under s. 27 of the Prevention of Corruption Act (Cap 241) on 21 June 2006 at 6.15pm. The statement was marked ‘B’ for identification and a trial-within-a-trial was held to determine its admissibility. After considering the evidence and submissions, I ruled that the statement was inadmissible. Prosecution’s evidence Evidence of PW1 – Chief Special Investigator Mohd Afif Bin Hussain (‘CSI Afif’) 6 On 21 June 2006 at about 8am, CSI Afif went to the accused’s flat in order to bring him to CPIB for questioning. At about 8.30am, he brought the accused back to CPIB. Shortly thereafter he commenced interviewing the accused. At 12.30pm, he stopped the interview for about a 45-minutes lunch break. Thereafter he continued to interview the accused. 7 At 6.15pm, he began recording the s. 27 statement. The statement was stopped for a dinner break at 7.15pm. The recording resumed at 7.55pm and was concluded at 8.45pm. The accused was then allowed to read the statement and to make amendments. The accused did not make any amendment. 8 CSI Afif claimed that the accused was co-operative. He said that the accused responded to his questions. He denied that there was any threat, inducement or promise before and during the recording of the statement. 9 Under cross-examination, CSI Afif said he informed the accused that he was investigating into an allegation that he received a bribe for a short supply of 30 to 35mts of marine fuel oil to the vessel SG Prosperity by the barge Premium. He agreed that there was a stack of documents relating to the delivery on the table. At first, CSI Afif disagreed that the accused told him that there was no short supply. However, when asked if the accused made an alleged admission right away, he then said that it took sometime for the accused to admit. He went onto say that the accused told him the short supply was not initiated by him but by Alex Chee because the chief engineer had extra fuel. Asked specifically if there was an initial denial by the accused, CSI Afif then admitted that the accused initially denied that there was a short supply but said that he subsequently admitted that the short supply was initiated by Alex Chee because the chief engineer had extra fuel. Asked at what time the accused told him of this, he said that it was either in the late morning or early afternoon. 10 CSI Afif disagreed that he did not allow the accused to go to the toilet until the late morning. He also denied that he chided the accused for siding with Consort by saying “Melayu bodoh, China juga pandai bikin duit.” (Malays stupid, Chinese only are clever to make money.) He denied that he told the accused to admit taking a small sum of $200, $300 or $400 and he would be sentenced to a fine of a few thousand dollars whereas Consort would be punished heavily and their business would close down. He also denied threatening the accused that if he continued to stubbornly deny he would give him a hard time and detain him until he admitted. He disagreed that the accused had not admitted before the lunch break and he told him to think it over carefully and he would return to question him further. 11 CSI Afif disagreed that he questioned the accused about his family and personal background after lunch. He said that he would have done so in the morning. He agreed that the accused told him that his family resides in Batam and he makes frequent short trips there. He claimed that he was unable to remember if the accused told him his wife was suffering from cancer. However, he agreed that he told the accused to take care of his wife. He denied that he threatened not to release the passport of the accused to enable him to visit his wife if he did not cooperate. CSI Afif agreed that he brought the accused to the room in which Alex Koh was for identification purposes. According to CSI Afif this happened at 3.05pm. CSI Afif denied that he told the accused that Alex Koh had given a statement stating that he (accused) received $500 and later told the accused that Alex Chee had also confirmed that he (accused) received money. According to CSI Afif, the accused had admitted by then. He denied that the accused still maintained his denial and he threatened to keep the accused for another day and not to return his passport so that he would not be able to travel to Batam. 12 Asked what caused the accused to finally admit, he said that as time went by, the accused asked him what would happen to him if he told the truth, and he told him that he would be charged in court and he will either “get a fine or jail”. Under further questioning, he said that he told the accused that most likely he would receive a fine based on similar cases. 13 Asked why he only recorded the statement of the accused at 6.15pm, CSI Afif he replied that he had “a lot of things to tie up”. Later, he said that he needed to verify if the accused was involved in other cases. Defence evidence Evidence of accused 14 The accused testified that his passport was seized when CSI Afif came to his house. He was taken to CPIB thereafter. He was brought to a small room. About 15 minutes later, CSI Afif threw a stack of documents on the table and asked him where the quantity of 30 to 35 mts of marine fuel oil had gone to. The accused perused carefully through the documents and denied that there was a shortfall of oil. He said that CSI Afif repeatedly asked him to admit that there was a shortfall. He continued to maintain that there was no shortfall. 15 Later he was given lunch and allowed to go to the toilet. After about 30 to 45 minutes, CSI Afif returned to the room and asked him questions pertaining to his family background. He told CSI Afif that his family was staying in Batam and he had to visit his wife often as she was suffering from cancer. After that, CSI Afif continued to question him about the shortfall. He maintained his denial. He said that CSI Afif threatened not to return his passport and to detain him for 48 hours if he did not cooperate. As he needed his passport to visit his ill wife and to do free-lance surveying work in international waters, he gave in when CSI Afif told him that his passport would be retained. 16 In course of the afternoon he was brought to identify Alex Koh. After the identification, he was told that Alex Koh had admitted giving him $500. He countered by telling CSI Afif that Alex Koh was not present during the bunker operation. The accused went onto say that after thinking carefully he chose to admit as his wife was ill and she needed him to be by her side. He said that if he had not admitted, CSI Afif would have retained his passport. 17 Under cross-examination, the accused said that he was unable to recall if he was told about the punishment for the offence. Asked if his passport was released to him when he left the CPIB, he said that it was not. He said that CSI Afif told him that the passport would be retained until the investigations were completed and he had to ask his superior if the passport could be returned. He was angry but he did not say anything apart from saying that he needed his passport. Asked why he did not say anything as he had signed a confession in exchange for his passport not being retained, the accused said that he was just too tired. 18 Subsequently he wrote an appeal letter to the CPIB for the release of his passport. He was told to post a security of $5,000 for the return of his passport. He did so and his passport was returned about a month later. 19 Asked why he did not tell anyone he was forced to sign the statement, he said that he was advised by the CPIB not to speak to anyone else about the case and he referred to the advice exhibited at page 5 of the statement. He thus did not dare to tell anyone. Asked why he did not mention the threat in the appeal letter, he said that he was ignorant of the law and he also did not want the matter to become ‘bigger’ by lodging a complaint. He said he waited for the case to be brought to Court and to tell his lawyer what had happened and to raise it in Court. Findings 20 It was not in dispute that the accused had initially denied the allegation. The factual dispute centred on what caused the accused to admit the allegation and at what time did the alleged breakthrough occur. CSI Afif was rather reluctant to reveal that the accused initially denied there was a short supply. It was after he was probed that he admitted the accused initially denied and repeatedly told him that there was nothing amiss in the bunker operation. On his evidence, the accused later changed his position to that the short supply was initiated by Alex Chee because the chief engineer had extra fuel. If the chief engineer had extra fuel and he thus did not require the full quantity, the lesser quantity would have been supplied with the assent of the chief engineer of the vessel and it could hardly constitute an admission of short supply in return for a bribe. 21 Even assuming an admission was made, the natural question that arose was what led to it as it was not in dispute that the accused had initially denied repeatedly. On CSI Afif’s evidence, it took some time for the accused to admit. According to him, the admission came in the late morning or early afternoon. So, on his evidence more than three hours had lapsed with the accused denying the offence. However, on the defence case the accused was only prepared to accept the allegation close to the time the statement was taken. I was inclined to accept the accused’s version. After the lunch break, the accused was interviewed for another five hours before the statement was taken. On CSI Afif’s initial evidence, this interview was continuous save for toilet breaks. His explanation for the further questioning was as follows (pg 13 NE): Ct: It was about another five hours of interview before you recorded the statement. Could you explain why after the accused had admitted was there a need for these five further hours of interview? A: It is an operational day. So there are a lot of people called in and not only the accused. There are quite a number of surveyors and bunker clerks. So I had to justify that is this the only occasion that the accused had received bribes or are there any other occasions that bribes are received. We also have one party who went to the office of Consort who conducted a search and another party going through all the short supply documents. So as such to ascertain whether this is the only occasion the accused received bribes and coupled with other documents to tell us the accused has been telling us the truth and after satisfying myself I commenced the recording of the statement at 6.15pm. Ct: What did you question him on during the afternoon session? A: It is whether or not is this the only occasion he has received bribes and off and on I will check with the search party whether there are any other documents of short supply which were attended by the accused. In re-examination, he claimed he was away for 15 to 20 minutes and maybe half an hour at times and could have left the room about four times in the afternoon. Taking this position, the accused would have been questioned for more three hours. As CSI Afif had the documents relating to the instant case by 8.30am, it showed that the CPIB had obtained the relevant documents prior to calling the accused in for questioning. This was confirmed by the fact that the accused was not confronted with any new evidence in the afternoon. Accordingly, I found it hard to accept CSI Afif’s evidence that he did not record the statement after lunch as he wanted to ascertain if the accused was involved in other cases. I was satisfied that there was a need to continue with the further prolonged questioning because the accused had made no admission before the lunch break. 22 It was not in dispute that the accused was not confronted with any evidence that would have led him to conclude that it was pointless denying. On the evidence of CSI Afif, the accused was also not confronted with the version of any witness. Accordingly, the natural question was what caused the accused to make an admission after repeatedly denying. On the version of CSI Afif, the accused asked him what was likely to happen to him if he spoke the truth and he told him that the offence carried a fine or jail and based on the precedent cases he was likely to be fined. The accused was unable to recall if he was informed of the punishment. On the accused’s evidence, it was the threat of the retention of the passport that caused him to buckle. 23 I was of the view that the fact that the accused was unable to recall that he was told he was likely to be fined and that there was no direct evidence from the accused that that led him to make an admission did not necessarily mean that the evidence of CSI Afif on what led to the alleged admission was of no consequence. This is because on the evidence of CSI Afif the turning point came after the accused was informed of the likely punishment. This is confirmed by the following answer from CSI Afif (pg 10NE): Ct: When you told the accused most likely it would be a fine based on the precedents, what did he say? A: First, he thought it over. It take sometime for him to think. Then subsequently he became forthcoming. He admitted he received the $500. Quite clearly on the evidence of CSI Afif, the element of causation was made out. The relevant issue before me was whether this amounted to an improper inducement. As I had only the version of CSI Afif that the accused asked him about the consequence that he is likely to face up if he owned up, I did not think that fact that the accused enquired about the likely consequence improved the position for the prosecution. The accused had been repeatedly denying since the morning. CSI Afif ought to have stopped when he told the accused that the offence carried a fine or a jail term. By telling him the likely consequence would be a fine based on past similar cases, CSI Afif had clearly held out an improper inducement. The fact that he may not have wanted to was irrelevant. However, I think that would be a generous interpretation. Faced with an accused who was denying and having nothing concrete to confront him with, it must have been the intention of CSI Afif to induce the accused when he informed him that he was likely to be fined. Accordingly, I was not satisfied that the statement was voluntary in the accepted legal sense. 24 Alternatively, I was unable to say that the accused’s version was unlikely to be true. On his evidence, CSI Afif had threatened to retain his passport and detain him for 48 hours if he did not cooperate. On the hand, CSI Afif denied having mentioned this at all. The fact that the CPIB could detain him for 48 hours is not a matter which every lay person would know. I was inclined to believe that the accused was informed of that power by CSI Afif considering that the accused had been denying for the better part of the day. With respect to the threat relating to the passport, I noted that the accused’s family resided in Batam and he also did free-lancing work in international waters. CSI Afif also knew that the accused’s wife was unwell as he confirmed that he told the accused to take care of her. I did not think that the accused conjured up the story of the threat of his passport being retained. The learned DPP of course made much of the fact that the passport was not returned to the accused when he left CPIB after making his statement and that the accused did not complain that he was threatened into signing a false statement. It was the accused’s evidence that he informed CSI Afif that he needed his passport but CSI Afif told him that he needed to ask his superior officer. Faced with such an answer, I did not think the accused was in a position to do very much. The accused subsequently asked the officers about his passport and he was told to write an appeal letter, and he did so accordingly. The fact that he did as requested and did not bring up the threat that was made, did not by itself suggest that the threat could not have taken place. Accordingly, I did not find the failure of the accused to complain suggested that his evidence was an after-thought. 25 In conclusion, a strong doubt existed on the whole of the evidence as to whether statement ‘B’ was voluntary in the accepted legal sentence. The doubt of course had to be resolved in favour of the accused and statement ‘B’ was accordingly excluded. Main trial resumed (i) Evidence of PW2 – Chee Eng Teck (‘Chee’) 26 Between 2000 and 2006, Chee was a bunker clerk with Consort. Consort is in the business of supplying marine fuel oil to vessels. He gave evidence that the parties involved in a bunkering operation are the chief engineer of the vessel or his representative, the bunker clerk of the barge, and the surveyor, if one is engaged on behalf of the vessel. He stated that the role of the surveyor was to ensure the stipulated quantity of marine fuel oil was supplied to the vessel by taking measurements, which are called soundings. 27 He testified that it was Consort’s policy to engage in the practice of ‘short supply’, which he explained to mean that less marine fuel oil than what is stated in the documentation would be delivered to a vessel during the bunkering. He said that when the short supply was done with the participation of the surveyor, the surveyor would be paid equivalent to 60 per cent of the short supply value based on a formula of $75 per metric ton of marine fuel. He said that Koh was in charge of making the payments to the surveyors. 28 He was referred to the following documents in the course of his evidence relating to the supply of marine fuel to SG Prosperity by Premium – 1) bunker delivery note (exh P1); 2) Consort’s tank measurement/calculation form of the barge (exh P3); 3) bunker requisition form (exh P3); 4) Unispec’s survey time-log (exh P4); 5) Unispec’s barge measurement report (exh P5). Chee stated the practice of short supply took place during the bunker operation and the figure of 2,685.158 metric tons stated in the documents P1, P2, P3 and P5 as being the amount of marine fuel oil supplied was false as the actual amount supplied was 35 metric tons less. 29 He gave evidence that when his barge Premium went alongside the vessel SG Prosperity to do the bunkering operation, the accused approached him on the board the barge and suggested to do a short supply. Under cross-examination, he said that the request was made after the measurements of the opening balances of the barge’s tanks. Chee claimed that he told the accused he would call the company. He telephoned the company and informed the operation personnel on duty. He was unable to recall who he spoke to. 30 He testified that when the bunkering operation was almost completed, Koh came on a launch to the barge and worked out the monies payable to the accused. He said that Koh should have calculated 60 per cent based on the 35 metric tons short supplied at $75 per ton. He said that the accused should thus have received $1,575 based on the company’s system of payment. 31 Under cross-examination, Chee confirmed that the bunker requisition form P3 was filled up by him first and signed by the chief engineer of the vessel before the bunkering operation started. As for Consort’s barge’s tank measurement/ calculation form P2, he stated that the soundings were done by his bosun and the calculation was done by him using the barge’s calibration table. He confirmed that the vessel’s chief engineer or his representative would be present during the taking of measurements of the barge’s tanks. Chee agreed that the measurements of the barge’s tanks in P5 were done by the accused, and the measurements were similar to that in P2. He was asked by learned counsel (pg 59NE): Q: By referring to these reports can you tell the Court where is the short supply? A: P5 would not be able to show anything like that. Q: Where can it be shown 35 metric tons was short supplied? A: There would be a slight amendment to the closing in P2. … Q: How did you arrive at the conclusion there was a short supply of 35 metric tons? A: At that time our company was under investigation. Someone’s thumb drive was seized and the records were all shown. Q: Have you seen the record in the thumb drive showing the shortfall of 35 metric tons? A: No. I have not seen this thumb drive. Q: So how did you come to know there was a shortfall of 35 metric tons? A: At the time when I was under investigations, CPIB showed me a record. I do not know where this came from. He went on to say that the document shown to him should have been prepared by Tan. 32 Under further cross-examination, Chee stated the figure of 2,685 metric tons in P3 was incorrect and he had tried to fill in a quantity as close to that requested by the vessel. He said he referred to the figures in P5 and his figures had to tally with that of the accused’s measurements in P5. He was then asked (pg 64NE): Q: Earlier you said you did the calculation but now you say you plucked the figures from P5, which is which? A: I filled in the figures in P3 but it would have to be supported by the surveyor’s P5. … Q: Did you carry out your own calculation to arrive at that figure? A: As I have said, if I have done my calculation and the surveyor’s report shows different figures the company would not accept. Q: Put: These calculations are based according to the calibration table on board the barge? A: Yes. He confirmed that the vessel in fact requested for 2,700 metric tons but based on P3 only 2,685 metric tons was supplied. He agreed that the bunker requisition form P3 was amended because the chief engineer of the vessel informed the accused that he had sufficient fuel oil. 33 With respect to Koh allegedly coming on board the barge, Chee was referred to the time-log P4, and he stated that Koh would have come on board between 7.30 to 7.45am. He said that he was unable to remember if Koh spoke to him. He was asked (pg 73 NE): Q: Did Alex Koh confirm with you that there was in fact a short supply of 35 metric tons? A: I would go with Alex Koh to measure the tanks again to ensure there was a short delivery of 35 metric tons. He also said that he did not see Koh handing the money to the accused and he did not know how much was handed. In re-examination, he said that he saw Alex greeting the accused. Asked if he saw the accused and Koh talking, he said that he was unable to remember. 34 In response to my questions, Chee said that he was no longer able to recall the bunker transaction and he gave his evidence based on his statement to the CPIB which was taken about three months after the bunker operation. Pursuant to my direction, Chee was later recalled to tender his previous statements under s. 162 of the Evidence Act (Cap 97). Both the prosecution and defence accepted this to be the best course to take. When Chee was recalled, he initially took the position that he was able to recall the bunkering operation. On further questioning, he said, “A lot I would have to depend on the statement to remember.” 35 Chee confirmed the relevant parts of his statements recorded on 21 June 2006 and 19 March 2007 were accurately recorded and his statements were admitted as P9 and P9-1 respectively. In his statement recorded on 21 June 2006, Chee stated the following: ii. My attention is drawn to the bunker done on 30/3/06 for a vessel SG Prosperity. From this figure, I can recall that this involves short supply with the help of the surveyor. The figure seems to be a miscalculated. The short supply amount should be 35MT as under “SV” the figure is 21MT (60% of 35MT). But under “O” the figure is 15MT, I think there is an error here as it should be 14MT (ie 40% of 35MT). I am shown a bunker inspection report, bunker delivery receipt, bunker measurement report, ship measurement report, sample witnessing and receipt bunker survey log for SG Prosperity… dated 30 Mar 2006 (alongside date). I cannot recall who the surveyor but the surveyor no. is 03165 and this can be traced. The surveyor should have received $1575 (21MT x $75) for this. I would have received $280 (if the figure is 14MT as I believe 15MT is a typing error). I do not know how the surveyor was paid but mine would have been paid at the end of the month in cash as stated for the previous occasion. In his statement recorded on 19 March 2007 (exh P9-1), Chee stated the following: I am now asked by the recorder to state for this incident involving Anuar, the surveyor on board the vessel SG Prosperity on 30/3/06, did Alex Koh board the SG Prosperity and paid Anuar? I wish to state that I could not recall it clearly now as it happened more than a year ago. However, I confirmed that there was short supply of 35MT to SG Prosperity on that day and I was paid $280 (14 x $20) whereby Anuar should be paid $1575 (21MT x $75). As to whether Alex Koh board the vessel and paid Anuar, I could not be sure but based on previous practice, if Anuar agreed to Alex Koh boarding the vessel, he should have boarded the vessel on that day and paid Anuar on board the vessel. If the surveyor refused to let Alex Koh board the vessel. Alex would be waiting at the anchorage or the wharf where the vessel will be berthing, for the surveyor to come down the vessel and pay the surveyor. 36 Under further cross-examination, Chee agreed that he was unable to recall that the quantity short supplied was 35mts. He was referred to the document on the basis of which he deduced that the short supply quantity was 35mts and was asked (pg 188 & 189 NE): Q: Are you able to tell what ‘15’ under ‘O’ represents? A: If I am not wrong, this means ‘15’ means 15mts which was given back to the company. Q: Could this 15 tons relate to the short delivery of 15 tons made to the ship. You would recollect the ship requested for 2,700 tons and only 2,685 was shipped. Look at P3? A: 60% of 35 tons should 21 and then the company 14 tons. So it was 35 tons and the surveyor would get 21 tons and 14 tons would be to the company. Ct: You keep mentioning 35 tons. Can you tell us why? A: Points to Annex ‘A’. Looking at this it should be 35 tons. … Q: Mr Tan is the maker of the document. He made the entries. He testified 15 tons stands for the sale of 15 tons of oil to the company. Are you disputing that? A: This is what he said. I don’t agree. 37 With respect to whether he gave the contents of statement P9 from memory or after referring to the document shown to him, he initially said that he was unable to remember. When the question was repeated, he said that he referred to the document ‘Annex A’ attached to the statement. With respect to the alleged payment to the accused by Koh, he was asked (pg 192 & 193NE): Q: You said you do not know how the surveyor was paid. Do you still maintain this statement? A: I would say so because I did not witness it. … Q: Is it correct that Alex Koh came on board the vessel and worked out the sum to pay to the surveyor? A: What I said was it was Alex Koh’s duty. (ii) Evidence of PW3 – Koh Chin Lee (‘Koh’) 38 Koh started working at Consort in the second half of 2004 and left the firm in August 2006. He said that he joined Consort on the recommendation of his uncle, whom he knew as SK Yeo (‘Yeo’). Asked if his uncle was connected to Consort, he said, “Maybe the boss but I do not know. I do not know whose company it was but my uncle recommended me.” He later went on to say that he did not know if Yeo knew anyone in Consort and he also did not know if he had any connections with Consort. 39 He was employed as a checker. His duty was to verify that the quantity of fuel oil in Consort’s barges tallied with the records of the barges. He said that he used to go on board the barges after the bunkering operation to verify the quantity of oil in the tanks. 40 He confirmed that he was aware of the practice of ‘short supply’ whereby a vessel is delivered less marine fuel oil than it had requested for. He said that the bunker clerks would telephone him to inform him if there was a situation of short supply. Asked if Consort was engaged in the practice of short supply, he replied that he did not know. He was asked, “Do you know how these bunker clerks knew you would be the person to contact?” He replied, “I do not know.” Asked who benefited from the practice of short supply, he replied that it was the surveyor. He claimed that he did not know if anyone else benefited from the short supply. 41 He testified that he made all the payments to the surveyors. Koh stated that he started paying surveyors a few months before his arrest in June or July 2006. He claimed he was unable to remember who instructed him to make the payments to the surveyors. He obtained the money from the accounts department of Consort. He was unable to remember the name of the lady from whom he collected the money. He was unable to remember how many surveyors he had paid during that period. 42 He testified that the surveyors and bunker clerks had a formula to ‘share’ the quantity short supplied. He said that the bunker clerks would inform him where the surveyor wanted to collect the payment, and he said that the surveyors had also contacted him on where to hand the payment to them. According to him, he had handed payments to surveyors in toilets, at car parks, on board barges, et cetera. 43 Koh was unable to remember if he was involved in the bunkering operation between SG Prosperity and Premium. He was unable to remember if he went to the barge during or after the bunker operation. He confirmed that he knew Chee. He knew him as Alex. He confirmed that Chee had ever called him in connection with a short supply. However, he said that he was unable to remember which barge Chee was on when he called him. He explained that the bunker clerks did not have a fixed barge assigned to them. Asked if he was able to remember paying a surveyor on board a barge when Chee was the bunker clerk or being on board a barge with Chee when a short supply was done, he said that he was unable to remember. 44 Koh confirmed he had seen the accused on board barges. However, he was uncertain if he the accused was one of the surveyors to whom he had made payment for short supply as he had made numerous payments to several surveyors. He said (pg 96 NE): At the CPIB, I was told they had confessed about receiving money. I admitted I was the one paying out the monies. As for the amounts and locations, for example, $500 or the person, I could not remember any more. It was because I was told they had already confessed so there was no reason for me not to admit since I was the one paying. 45 The prosecution applied to impeach the credit of Koh on the basis of his previous inconsistent statements recorded on 21 June 2006 at 10.30am to 1.15pm and a further statement recorded later the same day from 8.15pm to 10.50pm. The parts which were inconsistent were underlined and the statements handed to me. I ruled that there were material contradictions and gave leave to contradict Koh. He was referred to paragraphs 2 and 3 of his statement in which he said that he was invited by his father-in-law’s younger brother, Yeo, who is the boss of Consort, to join the firm and he was employed by Yeo as a checker in order to check if the bunker staff was selling marine fuel oil without the firm’s knowledge, which contradicted his evidence in court that he did not know who was the boss of Consort and who employed him. Koh claimed that he was not sure if the contents recorded in the statement were provided by him, and he claimed that he was only introduced by Yeo and he did not know if he was the boss and if he had employed him. Asked who he was introduced to, he claimed that he could not remember. Next, Koh was referred to paragraphs 5 and 6 in which he stated that in June or July 2005 he was asked by Yeo to pay a Malay man a certain sum of money and he was then reimbursed by Yeo and that Yeo subsequently gave him similar instructions periodically and Yeo would either hand him the money first or he would collect from Yeo after paying whereas his evidence in court was that he was unable to recall who gave him the money to pay the surveyors. Koh simply answered that he was unable to confirm if the contents of the statement were true or not as he was unable to remember. He also stated that he was unable to say if the contents came from him and he could not remember what was interpreted to him when the statement was read. He was next referred to the first sentence in paragraph 7 and was asked if it was true that the money that Yeo passed to him was to pay the surveyors. Koh denied this and said he did not know if they were surveyors. He went on to say that it was the bunker clerks who contacted him if there was a payment to be made and the surveyors would contact him thereafter. He was next referred to paragraph 8 in which he stated that Consort benefited from the short supply whereas in court he said that he did not know if Consort stood to gain. Koh replied that he did not know if what was stated in the statement was true or not as he could not remember if he gave the contents. He was next referred to paragraph 10 and was asked if he told the recorder that the profit of the short supply was split between the surveyor and Consort; with the surveyor receiving 60 per cent and the remaining 40 per cent to Consort at a price of $75 per metric ton. Koh confirmed the percentage of the share but said that he was unable to remember the price. With reference to his evidence that he was unaware Consort was involved in the short supply, he was further referred to paragraph 11 in which he stated that Yeo informed the bunker clerks to go ahead with a short supply if they were approached by surveyors to do one and to inform him (Koh) of the amount of the short supply. Koh stated that he could not recall if he gave the contents of paragraph 11 and also said that he did not know if the contents were correct. Next, he was referred to paragraph 12 in which he stated that the money to pay the surveyors was initially passed to him by Yeo or he was reimbursed later by Yeo and subsequently he approached Ms Ho who was dealing with accounts or Yeo’s secretary, Cynthia, who would pass him a cash cheque. Koh was unable to confirm that the contents of paragraph 12 were correct and said that he took the money from the accounts department but he was unable to remember from whom as it had been too long. It was also his evidence that he received a lump sum to make the payments and he did not collect money each time a payment was to be made. He denied that Yeo had passed him money to pay the surveyors. He said that he did not know why it was stated in paragraph 12 that his uncle had given him money for that purpose and he did not know if had given the contents. With respect to paragraph 14 in which he stated that Yeo trusted him with money as he is a relative, Koh again said that he was not sure if he had said that and also said that he was unable to say if the contents were true or not. 46 He was finally referred to paragraph 34 of the further statement which stated the following: On 31 Mar 06, Consort Tanker supplied fuel to the vessel SG Prosperity. The bunker clerk was Alex Chee and he made a deal with the surveyor for the job by the name of Anuar Bin Ahmad of Unispec Services to “short supply” about 7 tons of bunker fuel oil. After the deal was made, Alex Chee informed me about it and subsequently I went aboard the vessel and gave a sum of $500 to Anuar for the short supply of fuel. Asked if he gave the aforesaid contents, he answered (pg 110NE): As I said, all this was because the surveyors had already admitted and so I admitted. Because of this $500 and seven tons, I told Sathia the amounts and tonnage were not given by me. He then said I gave a false statement. I then said because they admitted I have to admit whatever amounts they admitted. What I said was the tonnage, the vessel names, the names of surveyors were not given by me. I admitted because everyone else had already admitted. … At pg 112NE Ct: Please tell us how paragraph 34 was recorded? A: I do not know if it was based on any record. He had a file of surveyors and another file of the clerks. He said this person admitted to receiving $500, the clerk also admitted. So I admitted. DPP: Can you tell us the reason why you admitted? A: Because from the start to the end I felt I was the one giving the money. It was not possible for a person who had not received money to say he had. The reason why I admitted is because I could not remember who I paid to. The person had admitted so I admitted because I was the one who gave the money. … At pg 116NE DPP: You say you admit to paying money, does that include the occasion in paragraph 34? A: I do not know. As I have said, I stated I paid moneys because the other party admitted already. For example, if I had paid a surveyor today I would forget who is he tomorrow because I simply paid and walked away. He agreed that the amendment to paragraph 34 was in his handwriting but said that he was told to make the amendment. 47 Under cross-examination with respect to the seven tons mentioned in paragraph 34, Koh said that he did not give that figure. He said that he did not know if it came from Ah Tan’s record, or from the surveyor, or the bunker clerk. With respect to the last sentence that the payment was made on board the barge, Koh said that he was unable to remember if he had said that the payment was made on board the barge or if he was told that the surveyor admitted receiving the money on board the barge. In re-examination, he was shown the record compiled by Tan and he confirmed that the seven tons and $500 were not found in the record. (iii) Evidence of PW4 - Sukumaran s/o Suppiah (‘Sukumaran’) 48 Sukumaran is the managing director of Unispec. His evidence-in-chief was led by way of a statement which was admitted as PS1. He stated that the accused’s duty was to ensure that there was no cheating on the part of the vessel’s staff, as well as the suppliers of the fuel. He stated that cheating can be done in various forms, such as supplying a lesser amount of fuel than what is actually declared or sold or supplying an inferior quality of fuel. 49 He tendered the bunker survey report which was prepared by Unispec for the owner/charterer of SG Prosperity based on the documents put up by the accused. He stated that the accused had a duty to reflect the correct amount of marine fuel oil supplied to SG Prosperity in the documents. Under cross-examination, he confirmed that Unispec did not receive any complaint of a ‘short supply’ for the bunkering operation in question. (iv) Evidence of PW5 – CSI Raymond Wee Keng Lock (‘CSI Wee’) 50 CSI Wee is the recorder of statement ‘F’ from Koh. He testified that he is unable to speak in Mandarin or Hokkien and spoke in simple English with Koh and Koh spoke to him in broken English. He said that they were able to converse and understand each other. He explained that in the course of the operation that morning he was informed by a bunker clerk, Johnny, that Consort was engaged in ‘short supply’, and the commission for such deals was paid by Koh to the surveyors and bunker clerks. CSI Wee verified this information with Koh. He said that Koh took sometime to consider and he confirmed that he was involved in paying money to the staff and some surveyors. He then recorded a statement from Koh with respect to the process of the payment. He stated that Koh was forthcoming in providing the details recorded in the statement. 51 Upon completion of the statement, he printed it out. He gave a copy to Koh to read. CSI Wee read the statement aloud in English whilst Koh was going through it. Koh did not object to any of the contents. CSI Wee then called PSI Ong Leng Keong (“PSI Ong”) to interpret the statement. It was his evidence that he called PSI Ong because he sensed that he needed an interpreter to interpret the statement. He was present during the interpretation. He said that Koh did not raise any objection to the contents of the statement or make any complaints to PSI Ong. Statement ‘F’ was admitted into evidence as P7. (v) Evidence of PW6 – PSI Ong Leng Keong (‘PSI Ong’) 52 PSI Ong was approached by CSI Wee to interpret the statement to Koh at about 1pm on 21 June 2006. He was given a copy of the statement which he brought along to the interview room. He interpreted the statement in Hokkien. He took about 15 minutes to interpret the statement. He stated the amendment at paragraph 13 was made by Koh. He confirmed that Koh did not make any complaints or allege that the contents did not come from him. (vi) Evidence of PW7 – Tan Kion Seng (‘Tan’) 53 Tan was employed by Consort between 2004 to the second half of 2006 as a checker. He testified that he prepared the record admitted as P8 (marked ‘H’ for identification earlier) because he had a lot of free time. He stated that no one relied on this record. He explained that the programmers from the operation department would write the daily delivery schedule on a piece of paper and leave it on a table and he obtained the information recorded in P8 from those pieces of paper. He emphasised that the information on the pieces of paper was not meant for him. He also stated that some of the information he had recorded in P8 may not have been entirely correct. 54 He was unable to recall initially what column ‘o’ represented. He was then allowed to refresh his memory with his statement recorded on 21 June 2006. He then stated that he was able to remember and gave the following evidence (pg 149 NE): Yes, I can now recall. This was just an estimated figure, that is, the vessel requested this figure of short supply but whether successful or not we would not know yet. He was asked next: Does ‘O’ always refer to a request by the vessel for a short supply or can it refer to a request by some other party? He replied: This I am not very sure because I did not have direct contact with the bunker clerks on board barges and the persons on board the vessels. Under cross-examination, he was asked (pg 162 NE): Q: It is stated the barge was nominated to supply 2,700 tons. That figure has been replaced by 2,685 and ‘balance not required’. So there is a short delivery of 15 tons? A: Referring to? Q: Going by this document? A: If you subtract this way, yes. Q: Could the figure ‘15’ in the fourth row of page 20 in P8 relate to the short delivery of this 15 tons? A: This figure was copied from the programmer. The events that transpired I do not know. 55 He stated that ‘sv’ stood for surveyor and the figure in the column represented the ‘short supply’ amount that the surveyor had asked for, namely, the difference between the actual quantity of marine fuel oil supplied and the amount stated to have been delivered to the vessel in the bunker delivery note. As for column ‘v’, he said it represented the quantity of marine oil requested by the vessel. He went on to state that the bunker clerk would inform the programmer of a ‘short supply’ and the programmer would write such a request on the piece of paper containing the daily schedule. He stated that he entered the amounts in the columns ‘sv’ and ‘v’ based on what the programmers wrote on the pieces of paper. 56 As for column ‘D’, he said it referred to the amount that Consort paid and that column ‘S’ was a calculation of the amount in column ‘D’. He said column ‘U’ was also related to column ‘D’ but it was for deals done in US dollars. In cross-examination he was asked if the absence of an entry in column ‘D’ suggested that there was no deal, to which he replied that it could either mean that there was no deal or he had omitted to make an entry. 57 He was referred to page 20, row 4 which pertained to the bunkering of SG Prosperity. He stated that he obtained the information from the piece of paper containing the daily schedule put up by a programmer. He was unable to recall which programmer it was written by. He stated that based on the entries Chee was the bunker clerk on the barge Premium which supplied SG Prosperity 2,6851.158 metric tons of marine fuel oil on 30 March 2006. He was then asked the following questions (pg 154 & 155NE): DPP: The figure ‘15’, what does it stand for? A: He is asking for 15. DPP: Who is asking for the ‘15’? A: This one should be the surveyor. DPP: The next figure ‘21’ under ‘sv’? A: The original request was for 15. But in the end the figure was more than the original 15. DPP: You have given us evidence that ‘sv’ refers to the amount short supplied to a vessel. What would the ‘21’ reflect? A: 21 means there was more than the original that was short supplied. I am now talking about this information to the best of my recollection, In ‘D’ column, there is no figure stated. So this proves that I was not in charge of this. I was just copying. 58 He said that based on the names ‘Tan’ and ‘Ah Hai’ in the ‘Remarks’ column, it was either ‘Ah Hai’ or himself who was the checker in charge of measuring the tanks of the barge before and after the bunker operation. He explained that he was unable to remember if he did the measurements as he went on board barges everyday. He also stated that he had not seen the accused before. (vii) Evidence of PW7 – PSI Sathiablan s/o M Veerapillai (’PSI Sathia’) 59 PSI Sathia is the investigation officer of the case. He recorded the statement of Koh which was admitted as P7-1 (marked ‘G’ for identification earlier). He testified that he had no problems communicating with Koh in English. Asked how he obtained the details recorded in the statement, he said it was based on his interview with Koh and, in particular, the records in P8. He read the statement to Koh upon completion and allowed him to amend the statement. He said that Koh changed the word ‘bunker’ to ‘tanker’ and added ‘US’ at three places. 60 Under cross-examination, PSI Sathia stated that he was unable to point out which portions of the statement were given by Koh from his recollection. He initially disagreed that he informed Koh what the surveyors and bunker clerks had said in the course of investigations. However, under further cross-examination he agreed that it was possible that he informed Koh of the alleged admissions made by the surveyors but added that he was sure that he did not inform Koh of the accused’s alleged admission as he did not ask Koh to identify the accused. He disagreed that he was interviewing Koh when the accused was brought by PSI Afif to the interview room for identification purposes at 3.05pm. He confirmed that the accused’s statement was recorded between 6.15 to 8.45pm whereas Koh’s statement was recorded between 8.15pm to 10.50pm. 61 With regard to P8, PSI Sathia stated that he established in the course of investigations that column ‘o’ referred to a proposal by the vessel for a short supply. Asked if Chee or Koh informed him that there was a payment to the officers of the vessel for the short supply, he said that they did not. PSI Sathia said he was unable to remember if he referred Koh to the figures ‘15’ and ‘21’ in P8 when Koh mentioned ‘seven tons’. Asked if he questioned Koh on how he arrived at the alleged payment of $500, he said that he did not. He was then asked (pg 181 NE): Q: Look at the columns ‘sv’ at pages 1 and 20, wherever there is a record of short supply, there is a corresponding entry under columns ‘D’, ‘S’, and ‘U’ showing the computation and amount paid out? A: Yes. Q: If you refer to row 4 of page 20, would you agree with me that this is the only entry where an alleged request of ‘21’ tons had been made but there is no entry of payment made out? A: Yes. Prima facie case 62 At the close of the prosecution’s case, learned counsel did not make a submission of ‘no case’. I was satisfied that a prima facie case was made out on the charge and the two courses were explained to the accused. He elected to give evidence. Defence case 63 On 30 March 2006 at about 10.50pm, the accused went on board the vessel SG Prosperity and met the chief engineer. He stated that the vessel’s request was for 2,700mts of marine fuel oil. He did a sounding of the tanks of the vessel in the presence of the chief engineer or his representative. With the soundings, he calculated the quantity of oil in the tanks which was reflected in the “opening reading” of the ship measurement report D3. After the chief engineer accepted his calculations, he went down to the barge Premium with a representative from the vessel and met the bunker clerk, Chee, and the bosun. A sounding of the tanks of the barge was then done and thereafter the quantity of oil was calculated using the calibration table of the barge. The measurements were stated in the “opening reading” of the barge measurement report P5. 64 At 2am on 31 March 2006, the bunkering operation commenced. It ended at 6.45am. The accused then went down to the barge again with a representative of the vessel. The soundings were again taken in the presence of Chee and the bosun and the quantity of marine fuel oil remaining was calculated. The balance in the tanks of the barge were stated under “closing reading” in P5. Thereafter he took the measurements of the ship’s tanks in the presence of the chief engineer or his representative and calculated the quantity of marine fuel oil supplied. The measurements were reflected in the “closing reading” of D3. He found the ship had received 15 tons less than what he had requested for. He informed the chief engineer of the shortfall. He was told that the 15mts was not required. He reflected this in the document ‘Statement Of Fact’ D2. 65 Under cross-examination, the accused said that he had met Chee before this bunkering operation. As for Koh, he said that he had seen him before and may have greeted him ‘hello’. He disagreed that the figure of 2685mts in documents P5, D2 and D3 was not the true quantity of fuel oil delivered. He disagreed that he colluded with Chee to reflect a higher amount when in fact there was a short supply of about 30mts. He disagreed that Koh came on board the barge and paid him $500 to overlook the short supply. Findings 66 It is clear on the evidence of Chee and Koh that Consort set in place a practice to short supply marine fuel oil to vessels. To carry out this scheme, bribes were paid to surveyors to overlook the short supply. It would be appropriate to start off with the basic proposition that the burden is on the prosecution to establish beyond reasonable doubt that this was one such case. In this regard, Yong CJ said in Guna Segar v. PP (1996) 2 SLR 283 at p 296: As in Yeo See Koon Jimmy v PP (1994) 3 SLR 539, where both the prosecution’s and the defence’s versions of the events were equally tenuous, the benefit of the doubt must be given to the defence, for the burden lay on the prosecution to prove its case beyond reasonable doubt. In that case, I said at p 549: ... for, however, tenuous that defence might have been, the burden still lay on the prosecution to prove the appellant's guilt beyond a reasonable doubt; and in discharging that burden, it was simply insufficient for them to point to the inadequacies of the appellant's testimony. 67 The factual issue of whether there was a short supply for which a bribe was paid rested essentially on the credibility of the prosecution’s key witness, Chee, and the weight to be accorded to the contents of Koh’s statement P9-1 which was admissible as substantive evidence under s. 147(3) of the Evidence Act (Cap 97). 68 In the course of the trial, it became clear that the foundation of the CPIB’s investigation against the accused was premised on the record P8, which was printed from a thumb drive seized. The maker of this record, Tan, was not acting under a duty when compiling the record. He testified that he prepared P8 because he had too much free time and that no one in the company asked him to do so or referred to it. He had no first-hand knowledge of the entries and emphasised more than once that he could not vouch for the accuracy and completeness of the entries. The programmers who wrote certain information on pieces of paper on the basis of which P8 was prepared were interviewed in the course of investigations but none of them were called as witnesses or even offered to the defence. As Tan was not acting under a duty in compiling the record and had no first-hand knowledge of the alleged entries he made, the entries in P8 were hearsay and inadmissible as the truth. 69 Coming now to the reliability of Chee’s evidence. In evidence-in-chief, he gave the impression that he was testifying to facts based on his recollection. In particular, he stated that the accused approached him and suggested to do a short supply and that the quantity short supplied was 35mts. However, under cross-examination it became clear that he did not have a specific recollection of these events and that his evidence was premised on the record P8 which was shown to him in the course of investigations as seen from his following answers (pg 60-61 NE): Q: When you were shown the document, do you agree that was the first time you came to know there was a short supply of 35mts? A: When I saw it, I knew because I did not keep a record. Q: Was it the first time you came to know there was a short supply when you saw the record? A: Yes. In response to my questions, he stated that he gave evidence that the accused spoke to him about the short supply because he believed that was what took place. He also stated that his evidence was based on what he said in his statement to the CPIB. His answers were as follows (pg 80 NE): Ct: You were asked was it the first time you came to know there was a short supply when you saw the record, and you said yes. If your evidence is that the accused initiated the short supply whilst you were on the barge, can you explain this answer of yours? A: When I saw it, I remembered. Without seeing I would not be able to remember. Ct: So what you have said about the accused speaking to you and wanting to do a short supply, do you have a specific recollection of him saying that to you, or are you saying that because of the document shown to you and therefore that must have happened? A: Because of the record I thought that is what should have happened. Ct: Do you now have a specific recollection of the accused speaking you about the short supply? A: I cannot remember. It was long time ago. Ct: So on what basis did you give the evidence yesterday of the accused speaking to you? A: Because I have seen my statements to the CPIB. 70 When Chee was recalled to tender his statements, he initially shifted position and said he was able to remember the events of the bunkering operation. This was not an innocuous inconsistency as when the statements were tendered it became clear that he tried to shift his position because his statements did not support his version in Court. From the manner in which the brief paragraph of his statement P9 was recorded on 21 June 2006, it is clear that it was not an account based on Chee’s recollection of the bunker operation. The material part of the statement which shows this reads: “My attention is drawn to the bunker done on 30/3/06 for a vessel SG Prosperity. From this figure, I can recall that this involves short supply with the help of the surveyor.” (emphasis added) It is clear from the reference to “from this figure” and the rest of the contents of the paragraph that the statement was based solely on the record P8 and the other documents shown, as it would be quite remarkable to recall the bunker transaction based on a figure he was referred to. This is further supported by the fact that Chee was unable to remember who was the surveyor when questioned about two and a half months later. This was confirmed by his following answers under cross-examination (pg 190 & 191 NE): Q: The question is when you gave this statement, did you do it from your memory or based from the record? A: I referred to the document. Q: When the recorder asked you about this bunker operation of 30 March 2006, did you straightaway get the impression who the surveyor was? A: No. I was not able to recall. Q: In short, you gave your statement referring to the record shown to you and based it on the general practice involved in the short supply of fuel? A: After looking at the records. Q: Also applying the rules of general practice? A: You may say so. It is very significant that Chee was unable to recall who the surveyor was when he was referred to the transaction. This confirms that he hardly had any impression of this bunkering operation about two and a half months later. This can be contrasted with his evidence-in-chief where he gave a vivid account of the accused allegedly approaching him on the barge to do a short supply. He later did a complete about-turn and said that he gave the foregoing evidence on the basis of what he thought had happened, and his final explanation was that it was on the basis of his statement to the CPIB. However, there is no mention in his statements that the surveyor approached him and suggested to do a short supply. If this indeed had happened, this was something which Chee ought reasonably to have narrated in his statement taken about two and a half months later. From his failure to do so, it must follow that Chee embellished his story of the alleged short supply by fabricating his account of the accused speaking to him before the start of the operation. 71 With respect to the alleged short supply quantity of 35mts which Chee asserted in evidence-in-chief, which incidentally is not the quantity stated in the charge, he also conceded that he could not recall the amount allegedly short supplied. Under cross-examination, he said (pg 59 NE): Q: How did you arrive at the conclusion there was a short supply of 35mts? A: At that time our company was under investigation. Someone’s thumb drive was seized and the records were all shown. … Q: So how did you come to know there was a shortfall of 35mts? A: At the time when I was under investigations, CPIB showed me a record. I do not know where this came from. It thus became clear that he gave this figure based solely on the record in P8, and arrived at the figure by simply taking the figure ‘21’ under the column ‘sv’ in P8 to represent 60% of the surveyor’s share of the fuel oil allegedly short supplied and then asserted that the total quantity short supplied was therefore 35mts. He did not stop there. He went on to assert that the figure ‘15’ in column ‘o’ was miscalculated and that it should be ‘14’. In contrast, the evidence of Tan and PSI Sathia was that the figure ‘15’ in column ‘o’ represented a request by the ship for a short delivery. However, Chee in his evidence and statements made no mention of the request by the ship for a short delivery. This showed that Chee did not understand the document P8 and had no recollection of the incident but was prepared to create a story based on the figures in P8. In contrast, the version of the accused was as follows (pg 202 NE): After we had calculated how much the ship had received, I found that the quantity of oil received by the ship was short of 15 tons as requested by the charterers. After I found there was a shortfall of 15mts, I informed the chief engineer. The chief engineer then informed the captain of the ship. They communicated in Mandarin, which I did not understand. They said the shortfall of 15mts was not required. The quantity received was enough for them to reach the destination. The accused documented the request in the statement of fact D2 and the nominated quantity in the bunker requisition form P3 was amended to reflect a short delivery which was confirmed by the chief engineer of the ship signing against the amendment. This showed that the quantity of 15mts was not a short supply but a short delivery with the assent of the ship. If the figure in column ‘o’ was supposed to reflect this quantity then it showed that Chee’s evidence that there was a miscalculation of the figure ‘15’ in column ‘o’ was fundamentally flawed. Further, the statement of Koh states the alleged short supply quantity to be about seven metric tons. There was no explanation proffered for this serious inconsistency. It clearly must mean that Chee and Koh could not have been referring to the same bunker operation. 72 Chee also stated in his statement two and a half months later that he did not know how the surveyor was paid. In his further statement recorded in March 2007, he repeated that he was unable to recall how the accused was paid. This roundly contradicted his detailed evidence-in-chief that Koh boarded the barge; greeted the accused; and that there was then some interaction between them. There was no explanation how Chee came up with this version three years later. I found that his account in the witness box was yet another embellishment. Further, based on Chee’s evidence it was Koh who measured the quantity of oil in the tanks of the barge after the bunkering operation to confirm the short supply of 35mts. In contrast, based on the evidence of Tan, the tanks were checked either by ‘Ah Hai’ or himself. This cast a further grave doubt on Chee’s evidence. 73 In sum, it became clear under cross-examination, in response to my questions and from Chee’s statements to the CPIB that he did not have any specific recollection of the events. Instead, his evidence was based simply on the entry in the record P8 and the general practice of Consort to short supply and he had used the figures in P8 to create his story. 74 Turning now to Koh’s evidence. Koh accepted it was his duty to pay surveyors for short supply. However, it was clear that he wanted to avoid giving any evidence that would implicate his uncle and Consort. In relation to these aspects of his testimony, I found that he made the portions in his statement P7 with which he was contradicted and I also found that he failed to give a satisfactory explanation for the contradictions between his evidence and what he said in the statement and I found his credit was impeached to that extent. 75 Turning now to his statement P7-1. There are 18 transactions that were investigated into and referred to in this statement. Koh could not have spontaneously remembered all the alleged payments in the 18 transactions. In respect of the instant bunkering operation, he stated he had no recollection if payment was made to the accused. Whilst the period of about slightly less than three months between this bunker transaction and Koh’s questioning at CPIB may be relatively short, it did not necessarily mean by that fact he must have been able to recollect the transaction. This is because Koh did not make a payment in an isolated case or two but was involved in an ongoing practice and had no reason to commit to memory any payment. Further, there is no reason for Koh to be able to recall this bunker operation when it is clear that Chee who was present throughout the operation could not recall the transaction. Moreover, Tan was also unable to recall if he was the checker for this bunker operation. 76 Coming now to the reliability of paragraph 34. Koh’s evidence was that he was told about the admissions that had been made by others and as he thought that no one would admit falsely receiving a payment, he could not deny and accepted that the payments were made. His evidence was (pg 111 NE): Because I had already admitted giving money, so he would say so and so had already admitted receiving money on which vessel, do you admit. I said if he had admitted then I would admit. It was all like that. He also gave the following evidence: Ct: Apart from the recorder telling you a surveyor has admitted receiving monies, were you referred to anything else which showed the payment of monies? A: Yes. The record of this Ah Tan. Also there were many other investigation officers who came and asked why did this surveyor say a figure which is different from Ah Tan’s record. I then told him I did not know where Ah Tan’s record came from. So in this statement I do not know where the amounts and tonnage came from – whether from the surveyors or Ah Tan’s record. … At pg 121 Ct: Look at the last sentence of paragraph 21, did you provide the details in statement ‘G’ based on what you recollected and the list compiled by your colleague Tan Kion Seng? A: This statement was based on Tan, the surveyors and the clerks statements. Ct: Are you referring to Tan’s record or Tan’s statement? A: Tan’s record. Ct: When you say surveyors statements and clerks statements, are you referring to their written statements or what you say the CPIB told you? A: They brought Ah Tan’s records and the amounts admitted by the surveyors. Some of them did not tally with Tan’s records. I do not know whether they based on the surveyors or Tan’s record. … At pg 132 NE Q: But you are sure this information did not come from you? A: Yes. There are so many figures here. I did not keep records. I can’t remember so many things. So how would I be able to give this quantity in tons and the amounts. In re-examination, he said (pg 127 NE): Q: This list shown to you, did you go through it or was it just shown to you and taken away? A: He showed it to me and said so and so did this, is the number of tons correct, for example, he would say how come it is stated here as 24 tons but the surveyor said something different. Q: Could I clarify you went through the items on the list when giving this statement? A: It was placed on the table and he told me to see this clerk, this surveyor, did this. Yes, he showed to me. But as I said just now, when he asked about the difference in tons I said I do not know. I do not know if they went with the surveyors or Ah Tan’s quantity. PSI Sathia agreed that he could have told Koh about what the surveyors had said although he denied giving Koh any information for this transaction. His evidence under cross-examination was (pgs 175 & 176 NE): Q: Would it be correct that after you interviewed the surveyors and after you gathered information in relation to the transactions you then interviewed Alex Koh to confirm the information you had gathered? A: No. They were being interviewed simultaneously. I did not interview the surveyors. Q: But was the information passed to you from the interview of the surveyors? A: I am unable to recall but it is possible because there was an operations room maintained for this particular case. Q: Since it is possible, would it be possible for you to have told Alex Koh that the surveyor has admitted to a particular transaction(s)? A: Yes. Q: Would there then be a possibility that Alex Koh played along with the information you put to him? A: Yes, but I did not tell him you have to play along. I asked him to recall the incidents but not to confirm whatever the surveyors could have said. But in this case for Anuar I am sure we did not have the information he admitted taking bribes. Ct: Why are you sure that you did not have the information? A: I would have asked Alex Koh to identify Anuar personally in the CPIB which I did not. I found it hard to follow the logic of PSI Sathia’s explanation that he was certain as he would otherwise have asked Koh to identify the accused. He was not asked to explain why he would have arranged for an identification to be done if he had been told of an alleged admission by the accused. On the other hand, it would have been far more logical for PSI Sathia to have arranged an identification of the accused if Koh was able to recall the alleged payment as opposed to if he had merely confirmed what he was told. PSI Sathia agreed that the details were obtained “in particular” from the record P8. He said (pgs 171 & 172 NE): DPP: When you recorded statement ‘G’ how did you obtain the details from Mr Koh? A: From the interview that I had with him and, in particular, records that were available from the company and he provided the details as recorded in the statement. Under cross-examination, he also initially confirmed that Koh was unable to recall the alleged quantity of short supply. However, he later went on to say that Koh told him that the quantity short supplied was about seven tons. His evidence is set out below (pgs 177 & 178 NE): Q: What he able to recall what was the quantity of short supply? A: No. Q: Was he able to recall the bribe paid? A: Yes, but he did tell me that it was about seven tons of short supply but he was not sure about the exact amount as he was not involved in the actual bunkering exercise. Ct: “About seven tons” – was from P8, or his memory? A: His memory. He was relating the amount of short supply to the amount he gave in cash to the surveyor. Q: In other words, he was telling you if $500 was paid it should be about seven tons, is that what you are saying? A: No. What I am saying is Alex Koh told me the amount he gave was $500 as the short supply was about seven tons. Q: You are saying he knew for sure it was seven tons and $500 was the payment? A: Yes. He told me it was “about seven tons” and $500 was paid. To my mind, it was clear that if Koh was unable to recall the alleged quantity short supplied, the estimate of “about seven tons” came about because he must have been told about the alleged admission of a receipt of $500 by the accused. This was somewhat confirmed by PSI Sathia’s evidence that Koh was relating the quantity of short supplied to the alleged amount of cash paid. It would be noted that the alleged 7mts of short supply was a far cry from the alleged total short supply of 35mts, or 21mts as the surveyor’s share, claimed by Chee based on P8. There was no attempt to reconcile these conflicting figures and no explanation was given for these vastly differing figures. As for PSI Sathia’s assertion that the alleged amount of the payment of $500 to the accused came from Koh, I noted that Koh was not asked in his statement how he arrived at the amount of $500 that he allegedly gave the accused. He was also not asked why he did not pay the accused for the quantity short supplied as stated in P8. In contrast, for the alleged payments pertaining to the other transactions recorded in Koh’s statement, the payments stated were based on the document P8 and were calculated at a standard rate of $70 or $110. In this case, the payment was allegedly not made on the basis of P8 and the standard rate was also not used. Koh was again not asked why. There are so many questions that cry for an answer. To my mind, the only conclusion was that the five line paragraph 34 was devoid of details because the amount of $500 did not come from Koh and he had merely accepted what he was told. Further, the alleged admission by Koh that Chee informed him about the alleged short supply was at odds with Chee’s evidence. On Chee’s evidence, he did not speak to Koh about the alleged short supply. The evidence of Tan that either ‘Ah Hai’ or him was the checker further cast doubt on whether Koh went to the barge. This supported the accused’s claim that he did not meet Koh on the barge. In sum, the reliability of paragraph 34 was highly questionable. Koh’s evidence that he confirmed the payment because he was told that there had been an alleged admission of its receipt and he therefore felt that he could not deny could reasonably be true, especially having regard to the lack of any details on how the amount was arrived at. 77 In conclusion, the prosecution’s evidence was tenuous and I found that it had failed to establish beyond a reasonable doubt the charge against the accused.
