It’s a bit long, but read below for details on one of his convictions, this one in Singapore!
Ong Siu Sin Kevin v Public Prosecutor
[2001] SGDC 244
Suit No: MA No 135 of 2001
Decision Date: 31 Jul 2001
Court: District Court
Coram: Eddy Tham Tong Kong
Related Documents: Academy Digest
JUDGMENT:
GROUNDS OF DECISION
The charges and the appeal
The Accused claimed trial to 2 charges, one for theft of a credit card belonging to one Ng Chye Yong under s 379 of the Penal Code Cap 224 at an establishment called China Jump Bar & Grill (”China Jump”) located at CHIJMES, Victoria Street, Singapore and the other for the offence of cheating under s 420 of the Penal Code. The charge of cheating was amended at the end of the prosecution’s case. The amended charge alleged that the Accused had presented the same credit card to one Ng Bee Chin, a waitress of China Jump, for delivery and payment of beverages to deceive her into thinking that he was the rightful holder of the credit card when he knew he was not and by such manner of deception had dishonestly induced her into accepting the credit card for payment which she would not have done had she not been so deceived.
At the end of the trial, I convicted the accused on both charges and sentenced him to a total of 3 months’ imprisonment. The accused filed an appeal against both the conviction and sentence. I now set out my grounds of decision.
The application for a joint trial of the charges
The prosecution had assumed, not surprisingly, that there would be no objection to a joint trial of the 2 charges as there had been no objection raised during the pre-trial conferences. However, at the start of the trial before me, counsel for the defence, Mr Wee objected to a joint trial on 2 grounds. The first ground was that the 1st and 2nd charges comprised 2 distinct acts which fall outside the ambit of s 169 of the Criminal Procedure Code, Cap 68. Mr Wee argued that the act of theft and the act of cheating are not offences which are “the same or a similar character”. I would not need to address this objection as the prosecution’s case is that a joinder is appropriate pursuant to section 170(1) of the CPC which provides that:
“If in one series of acts so connected together as to form the same transaction more offences than one are committed by the same person, he may be charged with and tried at one trial for every such offence.”
Mr Wee argued that even under this section, there should be no joinder of charges as the offences did not form one transaction. He submitted that the test for “same transaction” comprised 4 aspects: proximity of time, place, unity of purpose and continuity of action. He argued that the alleged facts do not fit in with any of these tests. Unfortunately Mr Wee did not proceed to support this contention with reference to the facts as alleged by the prosecution.
The phrase “same transaction” had been well explained by many cases. It would be sufficient for me to just cite from the learned Chief Justice who delivered the judgment of the Court of Appeal in Sharom bin Ahmad & Anor v Public Prosecutor [2000] 3 SLR 565 at para 26 where he said:
The term “same transaction” was interpreted in Tse Po Chung Nathan v PP [1993] 1 SLR 961, which decision was later followed and applied in Lee Teck Wah & Anor v PP [1998] 2 SLR 827. It was held by the Court of Criminal Appeal in the earlier case that, the phrase “same transaction” meant that there was proximity of time, continuity of action, unity of place and unity of purpose or design in the commission of the different offences. The last element of “unity of purpose or design” has been regarded as the most important, whilst the remaining elements are not so crucial in establishing whether the offences were committed in the “same transaction”.
I asked the DPP for a brief outline of the prosecution’s case. From the account given and based on the particulars of the alleged facts set out in the charges, it was clear to me that the prosecution intended to show that:
i. the Accused had stolen a credit card from one Berlin while they were at China Jump; and that
ii. the Accused soon after the theft made use of this credit card to carry out the offence of cheating by presenting the card to a waitress of China Jump for delivery and payment of drinks at China Jump.
The time of these 2 offences were therefore very close and both were committed in the same establishment. One action flowed to the other. Without getting possession of the card, the Accused would not have been in a position to commit the 2nd offence. Hence, on each of the tests set out in Sharom bin Ahmad to determine if both acts form part of the same transaction, it was crystal-clear to me that the answer must be yes. On what was said to be the most important element, unity of purpose and design, it is clear that this was present. The obvious reason for stealing a credit card is to be able to make use of it for the purchase and delivery of goods. I accordingly allowed the joinder of these 2 charges at one trial. Counsel also raised the ground of prejudice and embarrassment. I dismissed this objection easily seeing that it was raised without much conviction, with no particulars given in support of this ground.
The prosecution’s case
The evidence of PW1, Berlinda Ng Chye Yong, the owner of the credit card
The first witness for the prosecution was the owner of the credit card, one Ms Ng Chye Yong (”PW1). PW1 said that she was also known as ‘Berlin’ and ‘Berlinda’ to her friends.
PW1 first met the accused on 15.10.98 at a pub called Pleasure Dome. After being introduced by PW1’s friends, the accused gave PW1 his name card (exhibit P4) which indicated that he was the managing director of a company called Quantum Funds Asia. Thereafter, on 17.10.98, at about 2.15 p.m., the accused went out with PW1 to watch a movie. After the movie, the accused then invited PW1 to wait with him for a friend at a pub called “No. 5″ at Emerald Hill. At No.5, two of PW1’s girlfriends joined them and together they had some drinks. The accused told PW1 that he was waiting for his brother and a friend. However, the accused’s brother did not show up but the friend did, one ‘Derek’ (Kwok Chong Chin, PW2).
After the drinks, PW1 paid the bill of $129 as the accused told her that he did not bring his wallet and was waiting for his brother to turn up. Later on, the accused told her that his brother had reservations at China Jump, a pub located at Victoria Street. The accused told PW2 to leave with PW1’s girlfriends first and that the accused and PW1 would join them later.
The accused told PW1 that he wanted to go home first to retrieve his wallet. They took a taxi to the accused’s house somewhere along Upper Bukit Timah Road. PW1 waited for about 10 minutes in the taxi for the accused. When the accused returned, PW1 noticed that he had changed his clothes. They then left for China Jump.
At China Jump, PW1 met PW2 and her 2 girlfriends. After a while at the table, PW1 went to the toilet. On her return, she saw the accused fiddling with her handbag. PW1 felt suspicious but before she could say anything, the accused explained to her that her handbag had fallen to the floor and that the accused had tidied it up for her.
A short while later, PW1 saw the accused handing over a credit card to a waitress. PW1 then checked her handbag and discovered that her credit card was missing. PW1 decided to go out of China Jump to make a call to the credit card company in order to report the loss of the card. The accused followed her out. As PW1 did not know what was the number of the credit card company, she asked the accused. The accused offered to call on her behalf but after trying to call, informed PW1 that there was no answer. PW1 then asked the accused for the number but the accused could not give her the number. Feeling frustrated, PW1 asked the accused to leave first and she proceeded to enquire from a telephone operator the correct number to call. After obtaining the number, PW1 then made the call to the card centre. PW1 had the impression that the accused was trying to prevent her from calling the credit card company.
Thereafter, PW1 returned to China Jump. PW1 remained there for a short while longer before deciding to leave. The accused left with her. The accused then informed her that he was hungry and they went for supper at a food centre. The accused further informed her that he only had big notes with no small change and so PW1 paid for supper as well as for the cab fare. PW1 thereafter went over to the accused’s house and stayed the night there as the accused wanted her to see his mother. The next day, PW1 left for home.
PW1 said that the accused called her on 20.10.98 to invite her for a drink. PW1 told him that she wanted him to reimburse her for the $129 paid by her for the drinks at No.5, Emerald Hill. The accused said no problem and arranged to meet her on 21.10.98 at Raffles MRT station at about 8.00 p.m. On 21.10.98, the accused had also called PW1 and informed her that he had received a fax from China Jump stating that he owed China Jump an outstanding amount of $400 to $500. On the same day, PW1 waited for the accused at the appointed time at Raffles MRT station but the accused failed to turn up. PW1 tried calling the accused using the numbers on the name card given to her by the accused but there was no response. PW1 waited until 8.30 p.m. and thereafter she went to China Jump.
There, she met a Mr Martin (”Martin”), the manager of China Jump, who informed her that he had her credit card in his possession. Martin further informed her that either PW2 or the accused had tried to use her credit card to pay for the bill. PW1 agreed with Martin that she would wait until 22.10.98 before making a police report about her card. She lodged the police report on 22.10.98 (exhibit P6).
PW1 concluded her conditioned statement with a statement that she did not have any misunderstanding or quarrel with the accused.
Evidence of PW2, Derek Kwok Chong Chin
PW2 confirmed that he was known as Derek to his friends. He gave evidence that he knew the accused for a long time of about 10 years from meeting him in pubs and other night spots. On 17.10.98, he received a call from the accused who invited him for a drink at a pub in Centrepoint. Later he confirmed this place to be along Emerald Hill. At this pub, he joined the accused who was with PW1 and 2 other girls. After they have had some drinks, they decided to go to China Jump at Victoria Street. PW2 had previously patronised China Jump many times. The accused asked PW2 to go with the 2 girls first while the accused would clear the bill with PW1. Hence PW2 left first with the 2 girls.
PW2 explained that the phrase “holding the bill” meant that the pub would keep on serving the drinks upon every order without any payment being made until the end of the day when the bill was asked to be closed. The credit card tendered earlier would then be charged for all the drinks ordered and served.
In his conditioned statement, PW2 said that the accused subsequently also ordered a bottle of champagne and a bottle of ‘Cordon Bleu’. The next significant thing that happened was PW1 leaving the table and returning later to say that her credit card was lost. Everyone at the table embarked on a search around the area but the card was not found. PW1 then said that she wanted to go back. The accused asked PW2 to wait for him as he intended to send PW1 back and then return to China Jump. PW2 therefore remained behind at China Jump. PW2 was there until about 1 a.m., but as the accused did not return, PW2 left.
On the next day, PW2 received a fax from China Jump stating that the bill for the drinks ordered by them had not been settled. Subsequently, PW2 received another fax stating that the credit card which was presented for payment was a stolen card. Upon the receipt of the first fax, PW2 had managed to contact the accused after several attempts. The accused informed PW2 that he had already issued a cheque. Thus PW2 was surprised to receive yet another fax from China Jump stating that the cheque had bounced. PW2 then received a call from the accused who told that he was in Hong Kong and requested PW2 to settle the bill first and upon his return form Hong Kong, the accused would reimburse PW2. PW2 was reluctant to agree but felt compelled to settle the bill first as the faxes were being sent to his office. He was fearful of this matter reaching the attention of his employer which might lead to him losing his job. Therefore, PW2 paid an amount of $1075 on 30.10.98. However, after settling the bill, he was unable to contact the accused thereafter. The lines appeared to have been cut off. PW2 was never repaid the amount by the accused.
The prosecution tendered through PW2 all the faxes he had received from China Jump, the number totalling 6 as well as the receipt for the payment. They were collectively admitted and marked as P9.
Evidence of PW3, the waitress at China Jump
Ms Ng Bee Chin, PW3, gave evidence that she was the waitress at the material time at China Jump who had attended to PW2 and his group. She knew PW2 as “Derek Kwok” and that he was a regular customer of China Jump. She noticed PW2 was with a friend whom she later learned was called ‘Kevin’ (the accused). She also noticed that there was a tall female Chinese with them. She took their orders. She recalled that it was PW2 who had placed an order of a bottle of Martell VSOP. She further said that when she took the order, PW2 had informed her that the accused would be paying and had pointed at the accused.
Subsequently, the group ordered a bottle of champagne. When PW3 served this bottle of champagne, she could remember that the accused was present together with PW2 and the female Chinese. Later on, at about 2.00 a.m., another bottle of drink was ordered. This time it was a bottle of ‘Cordon Bleu’. It was PW2 who had placed the order as the accused was not at the table. PW2 informed her that the accused was at the toilet. When she served the bottle, she noticed that the accused was still not at the table. PW3 asked PW2 where he was and PW2 told her that the accused had gone for supper and would be back in a while.
A while later, when she checked the table, she noticed that no one was around. PW3 then went to the cashier counter and ’swiped’ the credit card given to her earlier by the accused, on the ‘Point of Sale’ (”POS”) terminal to effect payment. The POS terminal displayed a message “Pick up card”. PW3 then checked with the assistant manager, called David Martin who then called the credit card company to enquire on the status of the card. PW3 was not aware of what had transpired subsequently regarding that card but she was aware that the card was not accepted for payment.
PW3 went on to state that she was told later by her colleagues that the accused was called ‘Kevin’ and that he was a regular customer of China Jump and had given a name card to one of them previously.
Evidence of PW4, Inspector Christopher Reuben, the first investigating officer
Inspector Christopher Reuben, PW4, gave evidence that he had commenced investigations into this case pursuant to the complaint lodged by PW1. In the course of the investigations, he obtained the names of two girlfriends of PW1 who had been with the group at the material time. They are Vivien and Cecilia. He made telephone calls to them but only Vivien responded. She said that she was present with the group at the material time but she did not know who took the credit card from PW1’s handbag. When told to give a statement, Vivien said she was reluctant to get involved in the matter. Consequently, she failed to turn up for the appointment. Thereafter PW4 was not able to contact Vivien.
PW4 tried to contact the accused based on the particulars in the name card given to PW1. He conducted a Registry of Companies screening on the 2 companies named in the card: Quantum Funds Asia and Soros Fund Management Asia Pte Ltd. He discovered that they were not listed. He next called at the stated office address in the card: 9, Raffles Place #27-00, Republic Plaza, Singapore 048619. He found the premises to be closed with no signboard to show the name of the company.
PW4 also paid a visit on 20.4.99 to the house of the accused at 41, Ewe Boon Road #07-43 but there was no response. Finally, he managed to contact the father of the accused, one Ong Eng Yeow (”Mr Ong”) when Mr Ong responded to a letter sent to him. Mr Ong informed PW4 that he had shifted to 1, Eastwood Walk, Singapore. He attended an interview with PW4 on 13.5.99 but informed PW4 that he had not seen the accused for some time and did not know where he was. Mr Ong was advised to inform the accused to see PW4 to have the matter sorted out. However, the accused did not do so until he was arrested on 4.3.2000.
Evidence of PW5, Inspector Ho Ban Hsiung, the current investigating officer
Inspector Ho Ban Hsiung, PW5, gave evidence that he was the current investigating officer of the case. He had tried to contact Martin as well as Mr David Martin of China Jump but was informed by the secretary of China Jump that both persons had left Singapore sometime in December 1999 for England.
PW5 confirmed that he recorded the s 122(6) statements of the accused. The defence then applied for those statements to be admitted. They were accordingly admitted and marked D1 and D2. In these 2 statements, the accused basically denied that he stole PW1’s card and that it was PW2 who had given him the card and had asked him to help run a tab with the establishment.
PW5 also confirmed that after the accused was arrested he was released on police bail. The police bail was allowed to lapse but when the accused was required to attend upon further investigations, the accused did turn up.
Submission of no case to answer
PW5 was the last witness for the prosecution. The charges were amended at the application of the prosecution to reflect a more accurate reflection of the evidence as adduced by the prosecution, such as the timing of the offences. The amendments were quite minor and posed no prejudice to the defence.
At the end of the prosecution’s case, the defence made a submission of no case to answer. As regards the first charge of theft, the defence submitted that none of the witnesses, in particular PW1 and PW2 was able to state clearly that the accused was seen taking the credit card out of PW1’s handbag. Hence the defence argued that one of the essential ingredients of theft, which is the moving of the property out of the possession of the victim had not been proven.
The defence further submitted that the incriminating evidence of PW2 and PW3 about the accused handing over the credit card subsequently to PW3 had been explained by the accused’s statements of D1 and D2. The contents of the statements made it clear that it was PW2 who had handed the card to the accused to enable the accused to request the management to hold the tab. Thus another essential ingredient of theft, the mens rea of dishonest intention had also not been proven. Mr Wee also submitted that since D1 and D2 were allowed to be admitted unchallenged by the prosecution, the defence as set out therein had been established in the prosecution’s case.
The short response is this. PW1 and PW2 had seen the accused fiddling through the handbag of PW1 before the card was handed over to PW3. This card was not given to the accused by either PW1 or PW2. This in my view would constitute sufficient circumstantial evidence that it was the accused who had removed the credit card from the possession of PW1.
As regards the mens rea, the defence argument that the defence as set out in D1 and D2 had been established, because D1 and D2 were allowed to be admitted unchallenged, is clearly flawed. D1 and D2 are admissible evidence because they are section 122(6) statements of the accused and may be proved to corroborate the accused’s testimony in court by virtue of section 159 of the Evidence Act, Cap 97. However, just because the statements had been admitted, this did not mean that the prosecution had conceded to the truth of the statements. On the contrary, PW2 had clearly stated that he had not handed over the card to the accused and had also denied requesting the accused to hold the tab on his behalf.
Thus I found that the based on the evidence adduced by the prosecution, the court can reasonably infer that the accused had removed the card from the possession of PW1 without PW1’s consent and that he had the dishonest intention of so removing.
With regards to the second charge, the defence pointed out that the element of ‘dishonestly’ was not specifically stated in the charge. The DPP apologised for this omission and applied for the word to be included. I accepted that the omission was through inadvertence and clearly not deliberate to mislead the defence. It was very clear to the defence what the charge was and that the offence charged comprised dishonest intention as one of its essential ingredients.
What is important is whether on the evidence as adduced, this ingredient of dishonest intention had been shown. PW3 had said that all the accused did was to give her the card and to inform her to hold the bill when she approached him for payment. As far as PW3 was concerned, the accused was the owner of the card who had authorised the use of it for payment of the drinks ordered as well as all subsequent orders. The handing over of the card and his accompanying words had clearly induced PW3 to accept the card for payment and delivery of the drinks. The dishonest intention can be inferred from his omission to clarify that he was not the owner of the card.
The rest of the submission of the defence relate to criticism of the credibility of the witnesses for the prosecution in particular PW2. I found no necessity to deal with the veracity and credibility of the witnesses at the end of the prosecution as this is clearly not the burden on the prosecution at this stage. Suffice to say, their evidence could not be said to be inherently incredible. In any case, I would elaborate more on this issue at the later part of my judgment. I accordingly found that the prosecution had made out a prima facie case against the accused and called upon his defence to be entered after administering the usual allocution. The accused elected to give evidence.
The defence
Evidence of the accused
The accused gave evidence that he first knew PW1 at a party in 1997. Thereafter he had seen her many times at night spots. Then on 16.10.98, the accused met her at a place called Pleasure Dome. They went out together after leaving Pleasure Dome for drinks and supper. PW1 then spent the night at the accused’s house. The accused paid for all the expenses of their evening together.
The next day, 17.10.98, the accused called for a taxi for PW1 so that she could go home and change first before going to work. The accused then called PW1 while she was at work to arrange to meet up with her to meet up with her after her work. They met up at about 2.15 p.m. and thereafter went to Lido cinema area. They walked around the Orchard Road area and later took a taxi to No.5, Emerald Hill.
Whilst at No.5, PW2 called the accused and asked if the accused would like to have a drink. The accused invited PW2 to join him at No.5. He had known PW2 for a number of years since the opening of a place called ‘Studebakers’. The accused went on to say that they had consumed vodka and a cocktail at No.5 after PW2 had joined them.
PW2 then told the group that he had met two ladies the night before and he would like to go down to China Jump to meet them again. The accused immediately pointed out that he was not properly attired to meet the dress code at China Jump. PW2 suggested that the accused could go home and change first as the accused stayed nearby. However, PW1 and the accused were not too keen as they were also feeling hungry. PW2 persisted with his persuasion by pointing out there were many restaurants there. Finally, they all agreed to go.
Just before the bill was called, the accused attempted to buy a cigar. The accused had only three $1,000 bills in his wallet and so could only present a $1,000 bill for payment. The establishment informed him that it was too early in the day for them to have sufficient change for this amount of cash. Hence, the accused requested PW1 to pay first and she agreed to do so.
The Accused and PW1 upon arrival at China Jump joined PW2 who was already seated inside. The accused said that PW2 sat next to PW1 and the accused sat next to PW2. In other words PW2 sat in between PW1 and the accused. Soon after, the accused went to the toilet. Upon his return, PW2 pulled him aside to ask the accused if he was willing to hold the tab for him. The accused agreed to do so but PW2 would need to give him a credit card. From his request, the accused understood PW2 to be liable for payment of the drinks at China Jump.
The accused went on to elaborate as to what “holding the tab” meant. He said that if the tab was held, it would mean that the bill would only be settled at the end of the evening by the person running the tab. He further recounted that about a week or two before the incident that he had a drink with Martin. On this occasion, Martin had told the accused that during crowded times, there were incidents of customers leaving their credit cards behind at China Jump and thereafter make police reports that they had lost their credit cards. As such, Martin said that China Jump would only allow regular customers known to them to ‘hold the tab’. The accused recounted this conversation to explain why he was not surprised that PW2 had asked him to hold a tab on his behalf, seeing that PW2 had hardly pay for any drinks before.
The accused said that PW2 then left the table to look for a waitress. When he returned he asked the accused “Is brandy OK?” The accused replied that he could not drink brandy and in any case he was not in a position to drink, having drunk earlier. Hence the accused ordered a ‘coke mixer’ for himself. PW2 then proceeded to place an order of a bottle of Martell with the waitress.
When the drinks came, the waitress approached the accused and enquired how he was going to pay since he was the person who was going to hold the tab. At this stage, PW2 asked the waitress to wait, pulled the accused aside and handed a credit card to the accused. The accused then proceeded to hand the card over to the waitress and told her to hold the bill for him. He also handed his name card at the same time to the waitress, telling her give his name card to Martin or the bar manager if there was any problem in holding the bill. It was only after he had given the card to the waitress that she came back later with the glasses to serve the drinks.
After the drinks were served, the accused left the table briefly to talk with some other friends nearby. When he returned to the table, he noticed that PW1’s handbag was on the floor. The accused did not know where PW1 had gone to. The accused picked up her handbag. As there were things on the floor around the handbag as well, the accused picked up those things and put them into the handbag and thereafter placed the handbag onto a chair. At that point, PW1 returned to the table. The accused told her that her handbag had fallen down and that some items had fallen out. He then asked PW1 to check if anything was missing.
Upon checking, PW1 informed the accused that her credit card was missing. The accused advised her to call up the credit card company immediately to report the loss. Meanwhile the accused and PW1 searched around the tables for the card. After his advice, PW1 went out of China Jump. The accused followed her. He dialled the number ‘1800-2255225′ on his handphone but it took a long time as there were many messages and music. Finally, the call went through on the accused’s handphone. PW1 duly reported the loss. He dismissed as ‘rubbish’ the allegation that he was trying to prevent PW1 from making a report.
After making the report, the accused returned to China Jump with PW1. However, that was only to inform the group that they were leaving seeing that the evening had been spoilt, presumably due to the lost card. The accused told PW2 to carry on enjoying himself.
The accused could not remember if they had gone anywhere else first before going home but he could remember that they did go back to his house and that PW1 had stayed the night. He also said that the next morning in his bedroom, PW1 took a name card from a bunch of misprinted name cards that were left discarded on his desk. He added that up to this stage he had never given a card to PW1 before. The accused confirmed that this card taken by PW1 was P4. However P4 was inaccurate and was a misprint.
The accused explained that he was working for an Indonesian boss, one Anthony Puthiran who owned a bank in Indonesia as well as the company called Quantum Funds Asia. He claimed that his boss had ordered a print of cards for the accused in Indonesia, using the boss’s name card as a sample. In the process of doing so, a mistake was made in that the designation and qualifications which should have been deleted remained on the card. When the cards were sent to Singapore, the accused had merely put them aside in his bedroom. He also added that the office address was a postal address but due to bad times, the office had been shut down sometime in June 1998. Nonetheless the phone numbers were correct and hence PW1 kept the card.
Turning to the faxes from China Jump, P9, the accused said that he was surprised to note from the first fax that the bill stated 3 bottles of drinks as only one bottle had been ordered earlier. He was quite upset with PW2 when he saw the fax. He called PW2 and told PW2 that he would have to go and see Martin and make full payment. He also called Martin directly and informed him of Derek’s contact particulars and that he was not aware of the orders. He also clarified with Martin that PW2 was to be responsible for the payment of the drinks.
The accused further said that PW2 had told him that he was drunk and had forgotten to pay. PW2 then requested the accused to pay on his behalf as he was rather busy. The accused agreed to do so. However after he had despatched the cheque, he received the second fax indicating that a stolen credit card was involved. He became rather upset and immediately cancelled the cheque. He then called Martin and arranged to meet him that evening on the same day of 22.10.98.
At this meeting, the accused firstly asked to see the bottles as he wanted to see who had ordered them. However, China Jump could not produce them. Next, he was shown a photocopy of a Citibank credit card and he was surprised to note that the owner of the card was PW1. He then told Martin again that this had nothing to do with him and that the tab was PW2’s. Martin’s response was that he did not care for his understanding with PW2. The important was that the money owing must be paid and that it would not be nice for the accused to be involved in a police matter. The accused’s reply to Martin was to go ahead and make the report.
After he had left China Jump, the accused made a call to PW2 and asked him what was going on. PW2 could not really explain clearly. The accused then told PW2 that he “was on his own” and that he should settle the matter. He then left it as that. As for PW1, he said he had called her on 19.10.98 and asked if she had seen the drinks being ordered or had seen the drinks, presumably referring to the champagne and the Cordon Bleu. She replied no. After that the accused did not contact her any more. In particular, the accused did not make an appointment to see her at the Raffles MRT station on the evening of 21.10.98.
He finally rejoined his family at Eastwood Walk sometime in June of 1999. In 1999, he said he had travelled extensively in particular to Indonesia. He had no problem going in and out of Indonesia. He was not aware that the police was looking for him and he was not avoiding them either. He was stopped on 4.3.2000 by the police. He said that he had faithfully reported to the police thereafter even after the bail had lapsed.
The main issue of fact
The crux of the two charges is really how the accused came to be in possession of PW1’s credit card which he had given to PW3 as payment for the drinks that were ordered at China Jump. It is not disputed that the card was indeed handed over personally by the accused to PW3. This issue would boil down to the credibility of PW1 and in particular PW2 versus the credibility of the accused. This is because the accused’s main defence was that the card was handed to him by PW2.
If the card was indeed handed over to the accused by PW2, then the first charge would fail. This is because there would be no strong circumstantial evidence to infer that the accused had removed the card from PW1’s possession. The actus reus of the offence of theft would be missing.
The prosecution’s case on the second charge would be similarly doomed. This is because the accused could then reasonably argue that since the card was given to him by PW2, he could honestly assume that the card had belonged to PW2 and that PW2 would have no problem settling the bill. There would thus be no intention on his part to cause any wrongful loss to either PW3 or China Jump.
Assessment of the evidence
Any motivation on PW1 to frame the accused?
I found that PW1 was not an interested party. She had no reason to frame the accused. Her relationship with the accused was one of a fellow night spot go-er who had gone on a date with the accused and in the process became intimate with him spending the night at the accused’s house. According to the accused, PW1 had also spent another night with him on the night before the incident. Whether it was one or two nights, it was obvious that the relationship was a very short-lived one. More pertinently, there was no evidence that it ended on a sour note. According to PW1, the accused had agreed to meet her to settle the payment of the moneys owing to her for drinks at No.5 but the accused did not turn up and thereafter PW1 did not manage to contact the accused. The accused confirmed the short relationship in that after the incident he had only made one call to PW1 to find out what drinks she had witnessed being ordered.
Nonetheless, during cross-examination of the accused, he ventured to say that PW1 could have lied in her evidence because she was upset over their relationship. I found this suggestion highly speculative. The accused did not give any detail as to how or why PW1 would be upset over their relationship. I also found it inconceivable that in such a brief and transient relationship, PW1 would be so upset to the extent of coming to court to perjure herself in framing the accused. In any case, it was never put to PW1 that she had been motivated to frame the accused due to a soured relationship. The defence did not even suggest this reason to PW1 when she was on the witness stand.
I also found PW1’s evidence to be reliable in that it was not skewered completely against the accused, which would have been the case if she was on a mission of vengeance against the accused. If she was so motivated, it would have been simple for her to give evidence that she saw the accused take the card out of her handbag, instead of just fiddling with her handbag. She was also quite candid in admitting that she did stay overnight at the accused’s house despite suspecting the accused of having taken her card.
PW2’s evidence to be treated with caution
On the other hand, I am very conscious of the fact that in the light of the defence of the accused, PW2’s evidence must be treated with caution as he would have every reason to lie against the accused. If the card was indeed handed over to the accused by PW2, then it would imply that it was PW2 who had committed the theft of the card. As such, it would not be safe to just rely on PW2’s evidence alone, particularly in relation to the crucial parts of the case against the accused. I would deal with his evidence in more detail later on.
Why did the accused put his hand into PW1’s handbag?
On the charge of theft, it was clear that there was an opportunity for the accused to take the card of PW1. This was the incident where both PW1 and PW2 saw that the accused had his hand in PW1’s handbag. This fact was clearly established beyond a reasonable doubt as the accused himself had testified that he had put some items which he had found on the floor into PW1’s handbag. His hand would have to be inside PW1’s handbag in order to do that.
The crucial question was why the accused had his hand in the handbag. Both PW1 and PW2’s evidence was that soon after the accused had put his hand into the handbag that he handed a credit card to PW3. PW1 in her conditioned statement said that after the accused had explained that her handbag had dropped on the floor and that he was tidying up the handbag for her, the accused walked away to the waitress. She elaborated in her evidence in court that she saw at this juncture the accused handing a credit card similar to hers to the waitress. This was why she looked into her bag. PW1 was able to give a credible reason as to why she had searched her handbag and in particular looked out for her credit card. Her suspicions were already aroused when she saw the accused fiddling with her handbag when he had no reason to. She had already thought about her credit card as she was aware of credit card thefts . Hence on seeing the accused handing over a credit card that looked similar to hers, she decided to check her handbag. PW1 was able to withstand intense cross-examination on this aspect of her evidence. I now reproduce the relevant excerpt of the questions and answers:
Q: Why didn’t you ascertain it immediately?
A: It is not nice to do it immediately after someone had touched it.
Q: But 30 seconds later you decided to do it?
A: Yes, because I saw Kevin handing over the credit card.
Q: So you did not want to give face anymore after that?
A: I have to check my bag since I had seen the credit card. I have to be extra careful.
Q: Did you confront Kevin about him touching your bag?
A: No, I’ve got no proof and so I just reported.
Q: Why didn’t you ask the waitress for the card to check or to check with Kevin if he had handed over you card?
A: It is not so nice. What if I am wrong? The main concern is my card should not be charged.
PW1 consistently maintained that despite her misgivings, she was not sure that the accused had indeed stolen her credit card. Hence she did not confront the accused directly nor check with the waitress which would result in great embarrassment if she turned out to be wrong. In my view, that was a very reasonable and measured response on her part. After all, the accused had purportedly done her a favour by picking up her handbag.
On the other hand, the accused also tried to offer an explanation as to why PW1 would search her handbag and in the process discovered that her credit card was missing. This was because he was the one who had advised her to do so after informing her that some things had fallen out of her handbag. I found this part of the evidence somewhat of an after-thought on the part of the accused as this contention was never put to PW1 during cross-examination. If it was true that PW1 only checked her handbag upon the accused’s advice, then this point should have been put to PW1.
During the lengthy and detailed cross-examination of both PW1 and PW2, no suggestion was ever made to them that things had fallen out of PW1’s handbag. In fact, Mr Wee specifically said during the cross-examination of PW2 that it was his case that the accused did touch PW1’s handbag but it was because he had seen it on the floor and he was returning it to its original position when PW2 saw him touching the handbag. Up to the end of the prosecution’s case, it would appear that the accused’s version of the events was that the accused had only touched PW1’s handbag as a result of picking it up and putting it back to its original position.
This impression was further reinforced when PW1 was grilled as to why she had used the word “touch’ in her police report but change the word to “fiddling” in her conditioned statement. The thrust of the cross-examination was to get her to agree that the word “fiddling” was suggested by the police and all she saw was merely the touching of the handbag by the accused. I could only surmise that the accused had decided after the prosecution’s case that he would concede that he did put his hand into PW1’s handbag. However, to offer a reasonable explanation for his conduct, he had to concoct the additional detail that he had found that some things had fallen out of the handbag and he was merely putting those items back into the handbag.
Whether the credit card had already been given to PW3 when the drinks were on the table
PW1’s evidence was corroborated by PW2 whose evidence was that after he had seen the accused putting his hand into the handbag, the accused handed the credit card to PW3. PW2 had said that he was turning around to face the table to take a drink when he saw the accused’s hand in the handbag. The defence made much about this fact that the drinks would have been on the table at this juncture. It was put forward very strongly that based on the logical sequence of events, the accused would have already handed over the card to PW3 by the time PW2 witnessed him putting his hand into PW1’s handbag.
The contention of the defence was clearly set out in the cross-examination of PW2 in the following excerpt:
Q: So when you wanted to reach for your drink, the credit card given to the waitress to hold the tab had already been given?
A: Not so sure.
Q: What do you mean?
A: Cannot confirm the exact time of each event.
Q: But by the time you reached for your drink, two things had already happened: (1) the drinks had been served (2) that drink had either been paid for or the bill for that drink had been put on tab?
A: Correct.
Q: As it turned out, no payment was made. We know that the bill had been put on hold.
A: Yes.
Q: A credit card had been handed to the waitress?
A: Yes.
Q: If the credit card has been paid to the waitress before you turned around to reach for your drink, it must have happened before you saw accused’s hand in PW1’s bag?
A: Yes.
Q: So your para 2 of your conditioned statement – end para – “later he passed the credit card to the waitress” this cannot be right – Agree?
A: I cannot remember the time.
Q: I am asking about the logical sequence of events for example you cannot put on your shoes until after you have put on your socks?
A: The sequence of events should be as you say. All I know is the drinks came first. But the bill can come some time later after the drinks had been served. So during the gap of time, the accused may have gotten his hand on the card.
Q: So are you saying that you cannot remember?
A: I can remember certain things. I still stand by my statement. I am sure that I seen him put his hands in first and later handing a credit card to the waitress. And this was after the drinks had been served.
Q: Would it surprise you that the waitress had given a statement that she was given a credit card when she served the drinks at the table?
A: Not surprised. That is the same as what I have said.
As can be seen from the above, PW2 initially agreed that based on the logical sequence of events, by the time he turned around to reach for a drink, the accused should have given a credit card to PW3. This would mean that when the accused’s hand was in PW1’s handbag, he clearly could not have been possibly in the process of stealing PW1’s credit card as that had already been handed over to PW3.
However, the strength of this forceful argument was weakened somewhat by the latter half of the excerpt above. PW2 qualified his answer to say that despite the logical presentation of the sequence of events, he was still certain that the accused only handed the card after he had seen the accused’s hand in PW1’s handbag. This is because the bill could have been presented after the drinks were served.
As mentioned earlier, PW2’s evidence must be treated with caution as he was clearly an interested party. Hence, I compared this part of the evidence with that given by a clearly independent and reliable witness, PW3. She said that when she took the orders she had asked for some sort of payment. PW2 pointed at the accused and said that the accused would be paying. Then she came back later with the drinks. After she had served the drinks, she approached the accused for payment. It was at this stage that the accused passed her a credit card. As it was possible that PW2 had turned around at this stage just after the drinks arrived but before the accused had handed over the card to PW3, it could not be conclusively shown by the defence that the act of the accused in putting his hand into PW1’s handbag was only done after the card had been handed over to PW3.
I thus found that the credit card was given by the accused only after he had been seen by PW1 and PW2 with his hand in PW1’s handbag.
Any reason for PW2 to hand over a credit card to the accused?
PW2 had strongly denied that he had given the credit card to the accused to make payment. Since the accused had admitted that he was the person who had handed the card to PW3, it would be incumbent on the accused to explain how he came to be in possession of the card. In this regard, he gave a seemingly plausible reason.
Firstly, he went to great length to recount his good and long relationship with Martin of China Jump. He said that he first knew Martin as his company, Quantum Funds Asia had had a function at China Jump in the past and the accused had to liase with Martin to organise it. He then referred to a conversation he had with Martin when Martin invited him for some drinks at China Jump just about a week or two before the incident.
Martin told him that during crowded times, there were people who left their credit cards there and after drinking, they would just leave and later make a police report to allege that they have lost their cards. As such, Martin informed the accused that the management would only allow regular customers whom they know very well ‘to hold tabs’.
The accused presented this information in order to explain why PW2 had asked him to hold a tab on his behalf. The accused had thus presented himself to the court as a regular customer of China Jump as well as long time friend of the manager, Martin. He had also alluded in his evidence-in-chief that PW2 had seen him as a guest of Martin at China Jump during this drinking session he had with Martin. It is evident that the accused wanted to establish that both he and PW2 knew that the management of China Jump, on a Saturday night being a crowded night, would only allow the tab to be held by a regular and known customer and that would be the accused. Hence the accused did not find it other than normal for PW2 to have asked the accused to hold the tab. The accused also said that PW2 had seldom paid for drinks in the past again suggesting that PW2 would not be known as a regular customer to China Jump.
This contention is a very important point for the defence. Unfortunately for the accused, PW3 completely contradicted such a practice. PW3 had been working as a waitress for about a month before the incident. She had gone through the necessary form of training. Under cross-examination, PW3 was unshaken in her evidence that there was no restriction as to which customer was allowed to hold a tab. All that was required to hold a tab was for the customer to produce a credit card. Even a first-time customer would be allowed to hold a tab so long as a credit card is produced.
PW2’s evidence was consistent with PW3 on this point. When PW2 was asked to confirm that the management would allow a customer whom the management knew and trust to pay only when the account is closed, PW2 answered definitively that there must a credit card. It was put to PW2 that he was not in a position to hold the tab to which PW2 agreed as he did not have a credit card. It was then put to him that the accused was in a better position in that he had a credit card. PW2 agreed. Finally, it was put PW2 that PW2 knew that he was unable to get a tab held in his own name hence he had asked the accused to hold a tab in the accused’s name. To this, PW2 flatly denied.
The accused had to prove that a system of special treatment for known and regular customers was in existence at China Jump. Both PW2 and PW3 had clearly stated that there was no difference between a regular and a non-regular customer so long as the customer has a credit card. The accused could have sub-poenaed a more senior management representative from China Jump to give evidence as to such a practice but did not do so.
The accused himself floundered on this aspect of his evidence under cross-examination. Initially, he disagreed that PW2 would have no reason to approach the accused to ask him to hold the tab on his behalf . This was because of his understanding of the practise of China Jump on busy and crowded nights to restrict this privilege to known and trusted customers. However, subsequently, in a later part of the cross-examination , the accused reluctantly agreed that PW2 would be able to get PW3 to hold the tab if PW2 could produce a credit card which belonged to him.
The accused then under re-examination tried to shift his position in that he appeared to suggest that his understanding of the practice at China Jump might not have been so updated. He said that he formed this understanding of the practice of China Jump in not allowing unknown customers to hold a tab was about 4 months after the opening of China Jump in 1997. However, he would not know if the practice had changed in the course of 2 years towards the end of 1998. This is because he had stopped frequenting China Jump since end of 1997 during the financial crisis.
The accused had however completely contradicted his earlier evidence that his knowledge of this practice was formed only as recent as one to two weeks before the incident during the conversation he had with Martin as his guest at China Jump. The only plausible explanation I can think of is that the accused tried to wriggle his way out of being shown to be a liar when he realised after cross-examination that his evidence of the practice of China Jump was not on very strong grounds. Hence he came up with this evidence to allow him the leeway of arguing that the practice could have changed in that the management no longer restricted the holding of tab to certain customers but the accused was not aware of that. But in the process of trying to manoeuvre his way out of one tight spot he had landed into the bigger trouble of contradicting himself.
I therefore found that the practice of holding the tab at China Jump was that any customer could hold the tab as long as the customer could produce a credit card. As such, there would be no reason for PW2 to ask the accused to hold a tab on his behalf if PW2 could produce a credit card himself. If PW2 had wanted to hold a tab he could do so in his own right without having to pass a credit card to the accused. I therefore found that the accused had failed to account for why PW2 would need to ask the accused to hold the tab on his behalf. As there was no logical reason for PW2 to do that, I also found it highly unlikely that PW2 would hand over a credit card to the accused. Accordingly I found that PW2 did not hand over any credit card to the accused.
The element of deception and dishonesty
During examination-in-chief, the accused had given clear evidence that PW2 had pulled him aside and requested him to hold the tab. The accused agreed to do so provided PW2 furnished him with a credit card. When the waitress came and asked the accused for the manner of payment, the accused said that he gave her the credit card and told her to hold the bill for him. Under cross-examination, the accused again confirmed that PW3 had approached him for payment because PW2 had told her that the accused was the person who was going to pay.
On his own evidence, the accused had admitted implicitly in my view to deceiving PW3 into thinking that he was the person who was going to pay for the bill and that the credit card given to her as assurance of payment belonged to him. This is regardless of whether he was doing so on behalf of PW2 as alleged by him. The mere fact of presenting a credit card to PW3 in those circumstances with the accompanying words to the effect of holding the tab is sufficient to prove that the accused had intended to deceive PW3 into believing that the card belonged to him.
The accused again tried to wriggle his way out when he was questioned by the court about this deception. He started to embellish his evidence by stating that when he handed the credit card to PW3, he also stated that the “tab is Derek’s” and that PW2 would be settling the bill at the end of the evening. When it was pointed out to him that he his earlier evidence was that he had told PW3 to hold the tab for him, the accused then said that he did not use those words. He then proceeded to assert that his exact words were:
“Please hold the bill. Tab is for my friend. If any problem please let the management see my card. My friend will pay the bill”.
This change in evidence threw a totally different complexion on his account. This would mean that the accused had made it very clear to PW3 that PW2 was the person who was responsible for the payment of the bill. In fact, he went on to assert that PW3 would not think that the card belonged to him since he had said that PW2 was the person who would be paying. 98 In my view, this is another of the many instances of the accused resorting desperately to salvage his position by blatantly lying and embellishing his evidence but in the process caused greater damage to his own credibility. I totally disbelieved that the accused had explicitly made it clear to PW3 that PW2 was the person who would be responsible for the bill. This is because this would go against the whole concept of “holding the tab”. The accused had explained many times in his own evidence as well as during cross-examination of the prosecution witnesses that the person who holds the tab is the person who is going to pay the bill when the account is closed. The management would permit the bill to be held back until the end of the evening only if the person backs up his request with a credit card. It would therefore be nonsensical for the accused to hold himself out as the person making the request to China Jump to hold the tab and in the same breath inform China Jump that another person would be paying the bill.
It was clearly an after-thought born out of desperation whilst on the stand as it was never put to PW3 or PW2 that the accused had made it clear that PW2 was the person who was going to pay for the bill. The accused had also clearly lied about giving his name card to PW3 at the same time as he handed over the credit card. This was because PW3 had said that she took a look at the credit card and saw the name “Berlin Ng” but did not think anything amiss as she did not know the name of the accused. If it was the position of the accused all along that the name card had been given at the same time, then PW3 should have been challenged on her evidence that she had assumed that the credit card belonged to the accused. She should have been under no such illusion since she would have the name card to compare against the credit card. PW3 also showed herself to be clearly under the impression that the accused would be paying by asking PW2 the whereabouts of the accused when she took the order for the last drink and when she served it.
This is one of the many instances, which would be highlighted subsequently, of the accused presenting a different version of events which was never put to the prosecution witnesses when they were giving contradictory evidence to that version presented by the accused. I am of the view that the rule in Browne v Dunn [1893] 6 R 67 as referred to by the learned Chief Justice in Awtar Singh s/o Margar Singh v Public Prosecutor [2000] 3 SLR 439 is applicable here and in all those other instances. The rule is this: any matter upon which it is proposed to contradict the evidence-in-chief given by the witness must normally be put to him so that he may have an opportunity of explaining the contradiction, and failure to do this may be held to imply acceptance of the evidence-in-chief.
I therefore found that the accused had given a credit card to PW3 asking her to hold the bill for him and did not inform PW3 that he was not the owner of the card nor indicate that PW2 was the person who would be paying for the bill at the end of the evening. I found that the accused had clearly intended for PW3 to believe that he was the person paying for the drinks and that the credit card given to her belonged to him. Finally, the accused clearly intended that by such representation which he knew to be untrue, PW3 would be induced to rely on them and hold the bill until the end of the evening.
Was PW2 the host for the evening at China Jump?
The above-mentioned issues of fact were what I felt to be the most material in determining the essential ingredients of the charges against the accused. Nonetheless, I shall now deal with the rest of the other issues raised by the accused. The accused firstly argued that PW2 was the host of the evening at China Jump and hence he was the person who had passed him the credit card to pay for the bill.
When PW2 was cross-examined, it was put to him that PW2 was the one who had suggested going to China Jump whilst the group were at No.5. Then when PW2 was questioned about the events at China Jump, it was put to him that he had asked the accused to hold a tab in his name but on PW2’s behalf. It was then further put to PW2 that he proceeded to ask everyone at the table “Is Martell all right with everyone?” whereupon the accused had said “If you are buying, you name the drink”. It was then put to PW2 that the effect of this exchange made it quite clear that PW2 would be the host.
It appeared from the line of questioning that it was the defence case that at No.5, PW2 had merely persuaded the accused and the group to go to China Jump. It was only at China Jump that PW2 made it clear that he was going to buy the group drinks that evening at China Jump. The evidence-in-chief of the accused reinforced this impression.
The accused said during evidence-in-chief that PW2 wanted to go to China Jump because he wanted to meet 2 girls whom he had met earlier there. When the accused said he was not properly attired, PW2 suggested that the accused could go home and change as he lived nearby. The accused then mentioned that PW1 was also reluctant because they were hungry. To this objection, PW2 replied that there were a lot of restaurants over there to take care of that problem. The accused then said that whilst at China Jump, PW2 had asked if the accused could help him to hold a tab. The accused understood from this request to mean that PW2 would be liable for the bill of the drinks which he would be consuming and ordering.
However, during cross-examination, the accused was questioned as to why he expected PW2 to treat everyone at China Jump that evening, the accused unexpectedly raised for the first time that PW2 had already offered to buy everyone a treat whilst the group was still at No.5 . The accused said that when he was reluctant to go to China Jump, PW5 in order to persuade him, said that he would buy the drinks at China Jump.
The DPP noted that this was a significant departure from his earlier position and asked him whether he gave this instruction to his counsel. The accused insisted that he did but would not be able to explain why Mr Wee did not put that instruction to PW2 when PW2 was on the stand. The accused excused himself on the ground that he was not trained in the law.
From my observation, the accused took a very active part in the cross-examination proceedings of the prosecution witnesses. He regularly beckoned Mr Wee over to give instructions after certain answers were given by the witnesses. I have also seen him writing notes and discussing with Mr Wee thereafter. It is also very obvious from the detailed and lengthy cross-examination that Mr Wee had been very diligent in putting his client’s version to the prosecution witnesses.
Hence I found his reply rather lame and too convenient. It is obvious to me that the accused was again embellishing his evidence. Even if his counsel had omitted to put his instruction across to PW2, the accused himself had a chance to give this important piece of evidence in his examination-in-chief but failed to do so. The accused was clearly given to telling one lie after another to boost his case.
The accused also raised the point that it was PW2 who had ordered the bottle of Martell as well as all the subsequent drinks. His submission was that the person who ordered the drinks must be the host and the person paying for them. Hence a lot of time and effort was made to establish this fact. His allegation was supported by PW3’s evidence that it was PW2 who had placed the order of the first drink with her as well as the last order. The defence also pointed out that the first fax from China Jump to the Accused and PW2 described the accused as the guest of PW2. PW2 also did not protest to China Jump that the accused had been wrongly described as his guest.
PW2 admitted that he might have suggested Martell when PW3 came to take the orders. However he explained that this was because the accused had asked what drink he wanted and hence he had mentioned it. PW2 was therefore able to offer a plausible explanation as to why PW3 had given evidence that it was PW2 who had made the order. Whilst it may be a common occurrence that the person who is playing host places the order with a waitress, it is certainly not inconceivable that the host may invite his guest to place the order especially if the guest is known to the waitress as in the instant case. I also did not place too much weight on the fact that PW2 did not object to Martin over the fax describing the accused as PW2’s guest as clearly there was a more serious matter to be dealt with which was the outstanding bill. PW2 would naturally be more focused on contacting the accused and getting the accused to settle the payment.
Nonetheless, I did find PW2 to be rather evasive with regards to his evidence in relation to the last order of drink, a bottle of ‘Cordon Bleu’. In his conditioned statement, he stated that the accused ordered that bottle. However, during cross-examination, PW2 said he could not recall anyone ordering this bottle. He could not recall even drinking this drink. In direct contradiction, PW3 said that it was PW2 who had made this order. The accused was not around. This order would have been made at around 2.00 a.m. PW3 was also sure that when she served the drink, only PW2 was present.
PW2 was clearly less than truthful in this part of his evidence. However, I found that this did not warrant rejecting his entire evidence. It is clearly not a material part of the evidence. He might have been reluctant to show himself as a free-loader ordering an expensive drink after his host had left. In Public Prosecutor v Somwang Phatthanasaeng [1992] 1 SLR 138, it was held that even if the credit of a witness had been successfully impeached, it did not necessarily mean that all his evidence must be disregarded. The court must carefully scrutinise the whole of the evidence to determine which aspect might be true and which aspect should be disregarded.
The defence attacked the credibility of PW2 on another contradiction made by PW2. This is with regards as to who had suggested going to China Jump whilst the group was still at No.5. PW2 had said in his conditioned statement that it was the accused. However under cross-examination, his evidence was that the group was discussing which place to go and he had suggested China Jump. I again found this contradiction to be on an immaterial point. As I have found that PW2 did not offer to host the drinks in order to persuade the accused to go to China Jump, it really did not matter who had suggested going to China Jump.
Overall, I found that PW2 gave evidence in a rather candid fashion. He appeared to be quite amenable to suggestions made by defence counsel if they sound reasonable. He did not pause to consider his answers but gave them quite readily and quickly. Whilst this led to several contradictory answers in some aspect of his evidence, I found him to be unguarded and a mostly honest witness. Crucially, on the material parts of his evidence, I found them to have been supported by PW1 and PW3.
Credibility of the accused
The accused on the other hand, struck me as a very smooth witness, with a clever answer for every question. Nonetheless, he had been shown to have embellish his evidence, peppering it with lies on material parts of his defence case as highlighted above. In addition to the material issues, I found the accused to have lied in the following instances.
The name card, P4
PW1 had said that she received a name card from the accused after being introduced to him. The name card, P4, sets out his designation in the company Quantum Funds Asia as ‘Managing Director, Asia’ with the degrees of ‘LLb, MBA, CFA’. There was also another company named therein, ‘Soros Fund Management Asia Pte Ltd’ with a Singapore office address.
The accused agreed that the designation and qualifications are incorrect but all the other information therein are correct. To explain the existence of this card, he gave a rather incredible story that it was a misprinted card. I found his explanation rather too convenient and totally unsubstantiated. He had not called his boss Anthony to support this part of his evidence. In fact, none of the particulars contained in the card could be substantiated. No letters or office documents had been produced. The investigating officer has confirmed that no company by those names had been registered with the Registry of Companies and Businesses. The office address also drew a blank in that it was unoccupied. The phone numbers contained in P4 were actually lines registered to his home under his father’s name. I agreed with the DPP that this card appeared to be the work of a fraud who was trying to impress others under false pretences.
As usual, the accused came up with glib answers. He said he was the personal assistant to his Indonesian boss. He said he was shocked to learn that the companies were not registered. He said that he did not have any letters of appointment for this position. I find it strange that he could not produce a single piece of evidence to show the existence of the companies and the fact of his working for these companies. His explanation as to how the misprint came about was also suspect. He had said that the mistake came about because a sample of Anthony’s card was used. If so that would mean Anthony’s phone and fax numbers were all registered under the accused’s father’s names. When this was pointed out by his own counsel, he again came out with a ready and convenient answer:
“The company’s activities had started to wind down. We only needed contact numbers. I am the point of contact for my boss. I arrange his schedules.” I found all his explanations totally unconvincing and rejected them as further falsehood.
I also disbelieve his version as to how PW1 came to be in possession of the card. He claimed that she picked it up conveniently from a desk in his room. He said that he did tell PW1 that the information therein was not correct as it was a misprint save for the contact numbers. However PW1 still insisted on keeping it as she had lost an earlier card given to her. He said he could not give her an accurate card as he did not have any more with him.
PW1 was not challenged at all in her evidence on how she had obtained P4. The accused again denied that this was an after-thought. He insisted that he had given the same instructions to his counsel and resorted to the convenient excuse that he could not be teaching his counsel on what questions to ask.
In addition, he was caught lying again when he said that he did not have any more accurate cards to give to PW1. This was because he had earlier claimed that he had given an accurate name card to PW3. That name card named him as the Executive Assistant of Bank Tamara. After he had committed himself to say that he had about 10-15 of such cards with him, I reminded him of his earlier answer that he did not have any more accurate name cards to give to PW1. His ingenuous reply was: “I thought he was referring to Quantum Funds name card” . That was clearly another attempt to weasel his way out but in my view, it was obvious that he had been caught lying. The point was this: if he had an accurate name card on him, he would have given it to PW1. It did not matter that the card mentioned him with a different company.
He also contradicted himself when he said that PW1 wanted P4 because she had lost an earlier card given to her. This contradicted his earlier evidence that before P4 was given to PW1, he had never given any name card to her.
Impeachment proceedings against the accused
The prosecution had applied to impeach the credit of the accused under section 157 of the Evidence Act Cap 97, based on material contradictions between his evidence in court and his previous statement. He had given evidence in court that he had agreed to pay first on behalf of PW2 the outstanding sum to China Jump. He then despatched a cheque to China Jump. However, when he received a second fax alleging the use of a stolen credit card, the accused became upset with PW2 and decided to cancel the cheque. He then went to China Jump to inform Martin personally. The DPP highlighted the inconsistent portion of his previous statement.
This issue is relevant to show the conduct of the accused after the revelation of the unpaid bill and the stolen credit card. The accused had painted himself as a wronged party and furious with PW2 for getting him involved with a stolen credit card. In his anger, he had decided to stop payment on the cheque. He had even gone to see Martin personally to protest his innocence and had informed him that he had stopped payment on the cheque.
However, in his statement, he had clearly presented a different account of the cheque. He said that he went to see Martin personally to hand over the cheque and this was after he had received the fax which had referred to a stolen credit card. This was a clearly a material contradiction. The accused had issued a cheque despite knowing about the allegation of a stolen credit card. He also stated that PW2 had agreed to meet him that evening and would reimburse him the moneys paid. However as PW2 did not show up, the accused did not put sufficient funds into his account and allowed the cheque to be dishonoured.
The accused’s explanation for the discrepancy was that he was under a lot of stress having been arrested and thus became confused. He stuck by his version in court.
It was next pointed out that he had stated in his statement that he went home after leaving No.5 to collect his wallet, as opposed to his evidence in court which was that his wallet was with him throughout the day. This issue is relevant in that one of the accused’s contentions was that he had sufficient money in his wallet and could have paid for everything and need not have resorted to theft of PW1’s credit card. The prosecution presented a contrasting picture of a person who had never paid for anything that day and did not have the intention of doing so.
The accused firstly said there was no contradiction in that he was referring to his ‘bill-fold’ in the statement and not wallet. However, the DPP pointed out to him that the accused had also said that his ‘bill-fold’ was with him throughout the day. Only then did the accused concede that the statement was wrong and that he was basically confused for the same reason given earlier. He further said that most of the answers were suggested to him and he merely accepted them if they sounded reasonable. Since his release, he had the time and managed to piece together a more accurate picture of what had transpired.
I found his explanation rather lame. He did not strike me as a timid person who would be easily cowed into accepting a particular account if he did not agree to it. In any case, I found that PW2’s evidence in court on the issue of the bounced cheque much stronger in that it was corroborated by the faxes from Martin. PW2 gave evidence that the accused had told him that he had settled the bill with a cheque. Subsequently, Martin sent another fax dated 26.10.1998 to state that the cheque had bounced. If the accused had already informed Martin on 21.10.1998 that he had cancelled the cheque, then Martin should not have been surprised to discover that the cheque had bounced. He would also not wait until the 26.10.98 to express his shock and threaten to take the next action. I found the scenario presented by PW2 more consistent with the content and timing of the faxes emanating from China Jump.
As for the wallet or ‘bill-fold’, I also found PW1’s evidence more credible in that she had given evidence that the accused had asked her to settle the bill at No. 5 first and he would reimburse her later as he did not have his wallet with him. The accused’s version of how he had only 3 big notes of $1,000 denomination with him and that the management did not have the change to reimburse him was never put to PW1 when she was on the stand. The rule of Browne v Dunn would similarly be applicable here. In addition, I found it rather strange that he kept such large denomination currencies with him. Further, his earlier reason that the establishment at No. 5 did not have the change for him as it was quite early became rather doubtful when it was shown from the exhibit P13 of the VISA transactions of PW1’s card that the bill was actually paid quite late into the evening at 10.24 p.m.
As such, I found that the accused’s credit had been successfully impeached on this part of his evidence. Nonetheless, applying the principle of Somwang, I did not reject his testimony wholesale but scrutinised carefully his evidence in relation to the most crucial issue of the case as set out above.
The disappearance of the accused
I also found the disappearance of the accused consistent with the guilt of the accused. The accused tried to explain his vanishing act on the ground that he became uncontactable due to his father having sold the property and that his lines were therefore cut. He also said that he did not stay with his family for several months.
However, this could not explain why he did not bother to contact any of the parties, Martin, PW1 or PW2 after his lines had been cut to find out what was the outcome of the situation. After all, there was a threat that a police report would be made. Neither did he explain why he did not contact PW1 to at least repay her for the bill incurred at No.5. He just conveniently washed his hands off the entire episode, presumably comforted by the realisation that the relevant parties were not able to reach him. He also could not explain why his father did not inform him of the police investigations even after he had gone back to live with his family.
Other discrepancies and contradictions
There are other discrepancies and contradictions that have been raised both by the prosecution and the defence against the respective witnesses. I do not propose to deal with them in detail. Suffice to say, they really refer to the peripheral issues and do not add much more to my conclusion on the material issues and the veracity of the witnesses.
In view of the above reasons, I found that the prosecution have proven its case on the 2 charges against the accused beyond a reasonable doubt and I accordingly found him guilty and convicted on both charges.
Sentence
The accused had a similar antecedent. He admitted to one previous conviction for theft under section 379 of the Penal Code. The date of the conviction was 25.3.1992 and he was fined a sum of $1,000.
The accused had nothing to say in mitigation.
The offence of theft under section 379 of the Penal Code is punishable with imprisonment for up to 3 years or with fine or with both. The offence of cheating under section 420 of the Penal Code is punishable with imprisonment for up to 7 years and shall also be liable to a fine.
The accused had clearly showed no sign of remorse. He had already been previously convicted on a similar charge but the punishment of a fine had no apparent effect on him. He had not mended his ways.
The facts of the case speak for themselves. I agreed with prosecution’s submissions that the accused had weaved a web of deceit and his conduct was clearly reprehensible. He continued his unrepentant ways by spinning lies even while on the stand in court.
I am of the view that a custodial sentence is clearly warranted for both cases. However, I bore in mind that in respect of the second charge that this was not a syndicated credit card scam and the amount involved is relatively small. As such I did not impose too long a custodial sentence.
Accordingly, for the first charge of theft, I imposed one month’s imprisonment and for the second charge, two months’ imprisonment. As these 2 offences are really separate transactions, I was of the view that the sentences should run consecutively. The total sentence of 3 months would not offend the ‘totality’ principle as it could not be said to be a crushing sentence in view of the maximum sentence of 7 years prescribed under section 420 of the Penal Code.
Sgd:
DISTRICT JUDGE
