Case Summaries

Ho Man Yuk v Public Prosecutor [2019] SGCA 02

SUPREME COURT OF SINGAPORE

7 January 2019

Case summary

Ho Man Yuk v Public Prosecutor
[2019] SGCA 02
Criminal Reference No 2 of 2018

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Decision of the Court of Appeal (delivered by Judith Prakash JA):

Outcome: CoA held that initial innocent possession is not a requirement for a conviction under s 403 of the Penal Code for dishonest misappropriation.

 

The material facts

1          The applicant, Ho Man Yuk (“the Applicant”) was convicted in the State Courts on one count of abetment by conspiracy to dishonestly misappropriate monies under s 403 read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“the Code”). On the basis of this conviction, she was also convicted on several counts under the Corruption, Drug Trafficking and other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) for money laundering in respect of the monies which had been misappropriated. In aggregate, she was sentenced to 21 months’ imprisonment in respect of a total of 21 charges.

2          On her appeal to the High Court, the convictions were upheld. She thereafter applied for leave to refer certain questions of law to the Court of Appeal. At the conclusion of the leave hearing, she was given leave to refer only the following question for determination:

Whether a conviction for dishonest misappropriation under s 403 of the Code can be made out only if the accused person had an innocent or neutral state of mind when he first came into possession of the property in question.

3          In the reference, the Applicant argued that the question referred should be answered in the affirmative. According to her, an essential element of the offence of dishonest misappropriation under s 403 of the Code was that the misappropriating person had to have come into possession of the relevant property in an innocent or neutral manner. In her case, however, she had known from the outset that she was not entitled to receive the relevant monies. She was therefore dishonest, rather than innocent or neutral, at the time of initial possession. Accordingly, she argued that her convictions should be set aside.  

4          The Prosecution took the opposing position and argued that the question referred should be answered in the negative, relying primarily on the text and the history of s 403.

 

Decision on the question of law

5          Initial innocent possession is not a requirement for conviction under s 403 of the Code for dishonest misappropriation. Accordingly, the Applicant’s convictions were affirmed.

6          On a plain reading of s 403 of the Code, the accused person’s state of mind at the time of initial possession – whether innocent, neutral, or dishonest – was irrelevant to a conviction under that provision (at [33]). This reading of the provision therefore supported the Prosecution’s case (at [40]).

7          On balance, the illustrations and explanations to s 403 neither supported nor denied the existence of the requirement for initial innocent possession under s 403 (at [52]).

8          Section 404 of the Code was neutral on the requirement of initial innocent possession as its mental element could be construed as being assessed at the time of misappropriation or conversion rather than the time of taking possession of the property in question (at [56]).

9          There was no issue with overlapping property offences under the Code. Further, there was no canon of interpretation that penal provisions should be construed such that no overlap would exist (at [59]). Indeed, it could not have been the legislative intent that innocent possession be an implicit requirement of s 403 of the Code (at [61]). Amongst other reasons, there were no other property offence which imposed a similar “negative” or exonerative mens rea requirement (at [62]). There would also be a clear lacuna and absurdity in the law if the requirement of innocent possession was upheld (at [72]).

10        The context of s 403 of the Code suggested that initial innocent possession was not a requirement for dishonest misappropriation (at [74]).

11        As the history of the legislation showed plainly that the intention of the drafters of the Indian Penal Code, from which the Code had originated, was that initial innocent possession would not prevent a subsequent dishonest misappropriation or conversion from constituting an offence, it would seem incongruous to infer an intention to also make initial innocent possession an ingredient of the offence (at [83]).

12        It was difficult to reconcile the local High Court decision in Wong Seng Kwan v Public Prosecutor [2012] 3 SLR 12 (“Wong Seng Kwan”) with the judgment of the High Court in the present case (at [91]). However, the discussion on innocent possession in Wong Seng Kwan was obiter and made without the benefit of full argument. It was therefore less persuasive on this aspect of s 403 (at [92]).

13        The Sri Lankan Supreme Court decision in Walgamage v The Attorney-General [2000] 3 Sri LR 1 was salient and persuasive authority against the innocent possession requirement (at [98]). The Indian cases were, however, not persuasive precedents as they were not consistent and did not appear to have seriously or thoroughly considered the innocent possession question (at [104]).

14        It was safer not to place reliance on the academic texts as they had not come to a consistent or conclusive landing on the innocent possession question (at [111]).

15        A rectifying construction could not be applied to assist the Applicant as there was nothing to rectify (at [115]). There was also no room for the strict construction rule to apply as the context of s 403 sufficiently demonstrated that innocent possession could not have been an intended element of dishonest misappropriation (at [117]).

16        The essential elements of an offence under s 403 of the Code are (at [38]):

(a)        that the thing in question constitutes movable property;

(b)        that the accused person has misappropriated or converted such property to his own use; and

(c)        that the accused person, not being a person entitled to immediate and exclusive possession of such property, possessed a dishonest intent at the time of such misappropriation or conversion.

All three elements appear on the face of the section. Once they are met, there will be an offence of dishonest misappropriation notwithstanding the ownership of the movable property concerned.

 

This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision

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