Case Summaries

Yap Chen Hsiang Osborn v Public Prosecutor [2019] SGCA 40

SUPREME COURT OF SINGAPORE

12 July 2019

Case summary

Yap Chen Hsiang Osborn v Public Prosecutor [2019] SGCA 40
Criminal Reference No 3 of 2018

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Decision of the Court of Appeal (delivered by Judge of Appeal Andrew Phang Boon Leong):

Outcome: CoA clarifies that secondary offenders may not be charged under s 47(1) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed).

1              This reference concerned the interpretation of ss 47(1) and (2) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“CDSA”). The overarching issue was whether the Prosecution’s charging practice is consistent with the distinction which Parliament has drawn between primary offenders (someone who launders the benefits of his or her own criminal conduct) and secondary offenders (someone who does not himself or herself commit the offence from which the proceeds were originally derived but launders the proceeds of another person’s crime).

 

Background to the reference

2              The applicant, Mr Osborn Yap Cheng Hsiang, received US$420,000 (which amounted to S$520,590) into his DBS bank account. The money came from a HSBC bank account in Bermuda (“the HSBC Bermuda account”). The applicant then dealt with this S$520,590 according to the instructions of one Laura, a person whom the applicant had been intimately chatting with online. In particular, he withdrew and transferred various sums of money to three individuals. Laura gave the applicant a different explanation for each of these transactions. They ranged from the customs duties that she had mentioned to hotel bills as well as hospital bills

 

3              During this time, the owner of the HSBC Bermuda account discovered that the US$420,000 was transferred out without the owner’s consent and that the transfer had been procured by fraud perpetrated on HSBC. A complaint was made. The applicant did not know about this fraud. He was shocked when the Commercial Affairs Department (“CAD”) contacted him to ask for more information. Laura eventually stopped messaging the applicant.

 

4              The applicant was charged with one charge of dishonestly receiving stolen property under s 411 of the Penal Code (Cap 224, 2008 Rev Ed) (“the s 411 PC offence”) and five charges of dealing with the stolen property under s 47(1)(b) of the CDSA. After a trial, the District Judge convicted the applicant on those charges and sentenced the applicant to a total of 30 months’ imprisonment by running the sentences for the s 411 PC charge (24 months) and one of the s 47(1)(b) CDSA charges (six months) consecutively. The applicant appealed against both conviction and sentence while the respondent, the Public Prosecutor, appealed against sentence. The High Court dismissed both appeals.

 

5              The applicant then applied to refer various questions of law of public interest to the Court of Appeal. Leave was granted for two questions to be referred. The first question was as follows: “Can a secondary offender like the applicant, who does not himself commit the offence from which the proceeds were originally derived but launders the proceeds of another person’s crime, be properly charged under s 47(1) instead of 47(2) of the CDSA? If not, how would the outcome be affected if the applicant were to be convicted under s 47(2) instead?”. The second question was as follows: “If the answer to Question 1 is that the applicant can be charged under s 47(1) of the CDSA, do “his benefits from criminal conduct” under s 47(1) refer to the entire proceeds from the criminal conduct or the actual reward or advantage gained by him (if any)?”.

 

The Court’s decision

6              The Court answered the first question in the negative and acquitted the applicant of the five CDSA charges. In the light of the Court’s answer to the first question, the second question did not arise.

 

7              The Court noted that the respondent accepted that s 47(1) of the CDSA is targeted at primary offenders while s 47(2) is targeted at secondary offenders. However, the Court rejected the respondent’s submission that a secondary offender who has been convicted of the s 411 PC offence (of dishonestly receiving stolen property) is also a primary offender liable to be convicted under s 47(1), because the s 411 PC offence is a (local) “serious offence” within the meaning of s 47(1). The Court reasoned that this interpretation would render s 47(2) redundant: a secondary offender who deals with the benefits of another person’s crime within the meaning of s 47(2) CDSA would almost invariably be liable to be convicted of the s 411 PC offence and thus under s 47(1) as well. This result would be diametrically opposed to the principle that the courts should endeavour to give meaning to every word in an enactment (at [34] and [35]).

 

8              The Court also noted that a key difference between ss 47(1) and (2) is that s 47(2) refers to the accused “having reasonable grounds to believe” that the relevant property represents another person’s benefits from criminal conduct whereas s 47(1) does not refer to any mens rea requirement. The apparent lack of a mens rea requirement in s 47(1) would make eminent sense if that provision applied only to primary offenders. If so, it would be unnecessary to stipulate any mens rea requirement simply because a primary offender who benefits from his own criminal conduct must necessarily know that he is dealing with such benefits. Accordingly, the Court concluded that s 47(1) cannot be interpreted to cover a secondary offender like the applicant, who has been convicted of the s 411 PC offence (at [38] and [39]).

 

9              The Court also observed that Parliament had amended the CDSA in 2014 so that it was no longer necessary to obtain foreign certificates to prove a “foreign serious offence”, although the amendments were made after the applicant committed his offences. The Court noted that if the respondent were correct that secondary offenders who launder proceeds of foreign crimes can be charged under s 47(1), there would not have been a need to amend the law in the first place (at [27] and [42]).

 

10           The Court then considered whether the applicant could be convicted under s 47(2) of the CDSA instead. Since the offences took place prior to the 2014 amendments to the CDSA (referred to in the preceding paragraph), the respondent had to tender a foreign certificate to prove that a “foreign serious offence” had taken place. It was not disputed that no such certificate was tendered (at [47] to [49]).

 

11           Notwithstanding the above, the respondent submitted that the applicant could be convicted under s 47(2) because s 2(1) of the CDSA defines “criminal conduct” as “doing or being concerned in, whether in Singapore or elsewhere, any act constituting a serious offence or a foreign serious offence”. Thus, (according to the respondent) the phrase “another person” relates to the primary offender who engages in criminal conduct overseas, and that foreign criminal is “concerned in” the applicant’s s 411 PC offence, which is a “serious offence” (at [50]).

 

12           The Court rejected this submission. First, the Court reasoned that it would render the definition of “foreign serious offence” prior to the 2014 amendments largely redundant. If the respondent’s interpretation of s 47(2) were correct, there would almost never be a need to obtain a foreign certificate because an offender could just simply be charged with an (in this case, s 411 PC) offence, and the said charge would then form the basis of the s 47(2) offence. This cannot be the case; when amending the CDSA in 2014, Parliament recognised the difficulties in obtaining foreign certificates, and thus implicitly recognised that the authorities would generally need to obtain a foreign certificate to secure a conviction under s 47(2) (at [52]).

 

13           Second, the Court took the view that the respondent’s approach was circular. The respondent was essentially submitting that the applicant should be convicted of an offence of dealing with property which represent the benefits of the foreign criminal’s conduct. The foreign criminal conduct is then defined with reference to the applicant’s criminal offence, ie, being “concerned in” the latter offence (at [53]).

 

14           Third, the Court observed that s 47(2) requires the “another person” (the foreign criminal in this case) to benefit from the applicant’s criminal conduct. The Court found it difficult to see how the foreign criminal had benefited from the applicant’s receipt of stolen property, the s 411 PC offence which the applicant was convicted of. It was the applicant’s laundering of the stolen property, not his mere receipt of the same, which may benefit the foreign criminal (at [54]).

 

15           Accordingly, the Court declined to convict the applicant of the s 47(2) offence in place of his convictions for the s 47(1) offence. The Court acquitted the applicant of the five CDSA charges which he was convicted on and ordered the applicant to serve the 24-month sentence imposed by the District Judge for the s 411 PC offence (at [58] and [59]).

 

This summary is provided to assist in the understanding of the Court’s judgment. 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 judgment.

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