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Grounds publishedDecided 15 Jul 2010
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Court of Appeal

Bachoo Mohan Singh v Public Prosecutor and another matter

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[2010] SGCA 25Case no. Criminal Reference Nos 1 and 2 of 2010

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  1. V K Rajah JA:

  2. [1] In these criminal references, this court has to consider questions of law of public interest relating to how s 209 of the Penal Code (Cap 224, 1985 Rev Ed) (“the PC”) should be construed and the scope of lawyers’ duties to verify their client’s instructions. These criminal references arise from the conviction of Bachoo Mohan Singh (“BMS”), an advocate and solicitor of some 36 years’ standing, in the Subordinate Courts by a district judge (“the District Judge”) (see Public Prosecutor v Bachoo Mohan Singh [2008] SGDC 211 (“BMS (No 1)”)). BMS had been convicted of abetting (by aiding) his client to dishonestly make a false claim in court, under s 209 (read with s 109) of the PC. Section 209 states:

  3. BMS’s conviction was subsequently affirmed by a High Court judge (“the High Court Judge”) (see Bachoo Mohan Singh v Public Prosecutor [2009] 3 SLR(R) 1037 (“BMS (No 2)”)). In this judgment, the terms “advocate”, “solicitor”, “lawyer” and “counsel” (and their plural forms) are used interchangeably to refer to legal professionals qualified to practise in our courts, or, if the context so indicates, other courts.

  4. [2] According to BMS’s counsel, this matter has the dubious distinction of being the first known case in the Commonwealth’s legal annals where a lawyer has been convicted of abetting his client in the making of a false claim. This is also the first known case in Singapore involving a prosecution in relation to s 209 of the PC even though this provision has been in force in Singapore for well over a century. In India, no lawyer appears to have ever been prosecuted in connection with such an offence under s 209 of the Penal Code 1860 (Act 45 of 1860) (India) (“the Indian Penal Code”) (the progenitor to s 209 of the PC (see [54] below)) since the Indian Penal Code was first enacted. Nevertheless, despite the extraordinary nature of this matter, there was initially animated and protracted wrangling about the propriety of this court entertaining these references. I am therefore glad to note that both parties now accept that there are important questions of law of public interest. However, before considering the problematic questions of law raised by these references, I should first state the facts.

  5. Background facts and the underlying proceedings

  6. Background facts

  7. [3] The facts have been reprised in detail in my judgment in Bachoo Mohan Singh v Public Prosecutor and other applications [2010] 1 SLR 966 (“BMS (No 3)”) (at [5]–[14]), in which this court (by a majority) granted an extension of time for both BMS and the Prosecution to apply to the High Court Judge for leave to raise, to this court, questions, pursuant to s 60(2) of the Supreme Court of Judicature Act (Cap 322, 2007 Rev Ed) (“the SCJA”). Therefore, I will only repeat what I consider to be the essential facts, although a more granular approach has been adopted on some aspects.

  8. [4] BMS’s offence has its roots in the seemingly innocuous sale and purchase of a flat located in Redhill (“the Flat”), by Koh Sia Kang (“Koh”) and his wife, Kang Siew Guek (“Kang”), to Hong Swee Kim (“Hong”) and his wife, Elizabeth Bong (“Bong”). For ease of reference, Koh and Kang will be referred to collectively as “the Sellers” and Hong and Bong will be referred to collectively as “the Buyers”. The agents who represented the parties in this transaction were Tony Ho (“Ho”) and Teo Pei Pei (“Teo”), who worked for a real estate agency known as PropNex Realty Pte Ltd (“PropNex”) For ease of reference, Ho and Teo will be referred to collectively as “the Agents”. Ho was Teo’s supervisor. The law firm that originally acted for the parties in respect of the sale and purchase of the Flat was M/s Rayney Wong and Eric Ng (“M/s Rayney Wong”). However, the Sellers later sought legal advice from BMS, who was then employed as a consultant at M/s K K Yap & Partners (“M/s K K Yap”).

  9. [5] Prior to purchasing the Flat, the Buyers had sold their flat in Jurong and asked Teo to find a flat whose owners were prepared to enter into a cash-back arrangement. At or around the same time, Koh asked Ho to act for him in the sale of the Flat. Ho, in turn, arranged for Teo to be appointed as agent for the sale of the Flat. Soon after Ho’s appointment, Koh approached Ho on a number of occasions for loans, which Ho then arranged through a moneylender. It was envisaged that these loans would eventually be repaid from the sale proceeds of the Flat. Teo brought the Buyers to view the Flat on 30 September 2003. The Buyers were keen to purchase the Flat as the existing tenants would provide them with some income. There is no dispute that on the evening of 30 September 2003:

  10. (a) the Agents told the Sellers that the Buyers were willing to purchase the Flat at $390,000;

  11. (b) the Sellers told the Agents that they agreed to sell the Flat at $390,000; and

  12. (c) the Sellers signed an option to purchase (“the OTP”) with the purchase price left blank.

  13. There is, however, a fierce controversy as to whether the Sellers had agreed to a cash-back arrangement. The Buyers’ and Agents’ evidence is that the Sellers were, at this point of time, agreeable to a cash-back arrangement, with the quantum to be determined after they obtained a valuation report for the Flat. Koh has adamantly denied having ever agreed to the purported cash-back arrangement.

  14. [6] Eventually, the Flat was valued at $490,000 by CKS Property Consultants Pte Ltd. Teo then proceeded to insert the figure of $490,000 into the OTP as the purchase price. As an aside, it is interesting to note that there was a previous valuation report from APC Property Consultants Pte Ltd that valued the Flat at $442,000 as of 18 September 2003. However, it appears that the Agents only received this valuation report after 30 September 2003. The Agents, it bears mention, never disclosed this report to the Sellers.

  15. [7] The first appointment with the Housing and Development Board (“the HDB”) was scheduled for 2 December 2003. Just before the appointment, while waiting at the HDB office, Teo informed the Sellers that they had to declare to the HDB that the sale price of the Flat was $490,000. It is not disputed that Koh only came to know about the purchase price indicated on the OTP just before the first appointment. Koh, though unhappy with the inflated price, nevertheless proceeded to declare to the HDB officer that the $490,000 sale price stated in the OTP was the actual price. The Buyers also affirmed this as the correct price. After the first appointment, Teo brought the Sellers to M/s Rayney Wong’s premises to execute various documents, which (inter alia) authorised the law firm to distribute $100,000 of the sale proceeds to Kang. The Agents’ evidence was that Kang was chosen to be the go-between as she appeared more reliable. Kang, the Agents alleged, was supposed to withdraw the money and pass it to Teo, who would then hand the money over to the Buyers.

  16. [8] Koh testified that immediately after the first appointment at the HDB, he became deeply unhappy and perturbed about the regularity of the transaction. He felt that the Agents had cheated him by inducing him and his wife to sell the Flat below market value, and had taken advantage of his dire financial situation. He eventually approached BMS for legal help. On BMS’s advice, the Sellers made separate statutory declarations setting out the various alleged breaches of duties by the Agents, the law firm and the moneylenders involved in the cash-back arrangement. BMS testified that Koh’s instructions to him were as set out in the statutory declaration that Koh had made. Koh confirmed this. Based on these statutory declarations, complaints were lodged by Koh with the police, the Corrupt Practices Investigation Bureau (“the CPIB”), the HDB, the Inland Revenue Authority of Singapore (“the IRAS”), the Law Society of Singapore (“the Law Society”), and the Registrar of Moneylenders.

  17. [9] Teo’s subsequent efforts to persuade the Sellers to continue with the transaction were unsuccessful. On 15 January 2004, a meeting was arranged by the Buyers (and their solicitors) at the premises of M/s K K Yap (“the K K Yap Meeting”). The meeting was attended by BMS, the Sellers, the Buyers and Ong Bee Lay (“Ong”), a solicitor from M/s PKWA Law Practice LLC, who attended at the Buyers’ request. The Agents were not invited. During this meeting, Hong informed BMS about the cash-back arrangement. In response, BMS tersely stated that “he did not want to know about [the] arrangements” from Hong and would sue on the price stated in the OTP. No settlement was reached. After the meeting, Ong advised the Buyers that the transaction was illegal (she had not been informed by Hong of these details prior to the meeting) and that she would not act for them in the transaction. The Buyers accepted her advice and called off the purchase.

  18. [10] On 28 January 2004 and 30 January 2004, BMS wrote letters to the Buyers’ solicitors, notifying them that the Sellers had decided to rescind the contract and would resell the Flat, and that if the Flat was to be sold for less than $490,000, the Sellers would make a claim for the damages suffered. There was no response to these letters. Subsequently, the Sellers sold the Flat for $380,000. On 2 April 2004, BMS sent a letter of demand to the Buyers, demanding payment of $120,000, comprising $110,000 (this being the difference between the inflated sale price of $490,000 and the price at which the Flat was eventually sold at) and $10,000 (for expenses). Once again, no response was given.

  19. [11] On 10 April 2004, The Straits Times published an article (Tanya Fong, “Flat seller claims he was asked to inflate its price”, The Straits Times (10 April 2004) at p 3). In this article, Koh was quoted as stating that he was “asked to inflate the selling price of his flat [ie, the Flat] by $100,000”. This article caught the attention of PropNex’s management. They promptly arranged for a meeting at a hotel – the Marina Mandarin Singapore – on the evening of the same day (“the Marina Mandarin Meeting”). The Marina Mandarin Meeting was attended by BMS and Yap Kok Kiong from M/s K K Yap, Koh, the Agents, and Mohd Ismail, the chief executive officer of PropNex. During this meeting, Ho offered to pay the Sellers $20,000 to settle all the claims made by the Sellers, but his offer was roundly rejected by BMS.

  20. [12] Two days after the Marina Mandarin Meeting, a writ of summons (“the Writ”) endorsed with a statement of claim (“the SOC”) was filed by M/s K K Yap on behalf of the Sellers in the Subordinate Courts, with the Buyers named as the defendants. The SOC read:

  21. [13] Soon after the SOC was filed, the Sellers received an offer to resolve the matter from the Buyers’ solicitors. Eventually, an agreement was reached to settle the matter with the Buyers and Agents for $70,000. The Agents and the Buyers assert that they settled the claim as they did not want to be prosecuted for their involvement in the cash-back arrangement. Of this $70,000 settlement sum, the Agents paid $55,000 while the Buyers contributed $15,000. The suit was later discontinued on 30 April 2004 before any further pleading was filed. Subsequently, BMS was prosecuted in the Subordinate Courts for abetting Koh to dishonestly make a false claim in court, pursuant to s 209 (read with s 109) of the PC.

  22. The District Judge’s decision

  23. [14] The District Judge found that there was “overwhelming evidence” to prove every element of the charge and convicted BMS (see BMS (No 1) at [258]). He sentenced BMS to three months’ imprisonment (see BMS (No 1) at [271]). I will now summarise, in brief, his main findings on the law and on the facts.

  24. Main findings on sections 109 and 209 of the Penal Code

  25. [15] In the District Judge’s view, there were just three constitutive elements evident in s 209 of the PC (see BMS (No 1) at [145]):

  26. (a) First, there must be a “claim” that is “made” in a “court of justice”. The District Judge held that a “claim” would include “all manner of claims before the court including both originating summons[es] as well as writs of summons” (see BMS (No 1) at [146]). In addition, following Indian treatises on this point, he held that the claim is “made” once a writ of summons is filed (see BMS (No 1) at [150]–[151]). For “court of justice”, the District Judge relied on the definition provided in s 20 of the PC (see [104] below). On the facts of the case, he observed that there was no dispute that the claim by the Sellers had been made in a court of justice (see BMS (No 1) at [228]).

  27. (b) Second, the claim must be made “dishonestly”. For the meaning of “dishonestly”, the District Judge cited the definition provided in ss 23 and 24 of the PC (see [32] below) (see BMS (No 1) at [147]–[148]).

  28. (c) Third, the person who made the claim must have knowledge that the claim is false. In this regard, the District Judge stated (see BMS (No 1) at [149]):

  29. In the District Judge’s view, it was not appropriate to draw an analogy between s 209 of the PC and s 191 of the PC because the latter provision dealt with the giving of false evidence by persons legally bound to state the truth, and involved entirely different elements from the former (see BMS (No 1) at [231]–[232]). He further added that to establish falsity, it was not necessary to prove that the claim was entirely made up; it was only necessary to show that the claim was false “in the sense as explained in the case of [Queen-Empress v Bulaki Ram (1889) 10 AWN 1 (“Bulaki Ram”)]” (see BMS (No 1) at [236]). He also cited (see BMS (No 1) at [237]) the decision of Koh Pee Huat v Public Prosecutor [1996] 2 SLR(R) 816. In that case, Yong Pung How CJ adopted (at [64]), in the context of s 192 of the PC (the offence of fabricating false evidence), the following dicta from Jatindra Nath Sahu v Emperor AIR 1937 Cal 42 at 44:

  30. [16] The District Judge also rejected the argument of BMS’s counsel that where a claim depends on a question of law or upon the validity of a custom having the force of law, and not a question of fact, it would not be possible to establish the charge. This was because, in his view, liability under s 209 of the PC depended upon knowledge that the claim was false and the presence of intention (see BMS (No 1) at [240]).

  31. [17] After considering the wording of ss 107 and 109 of the PC, the District Judge held that to establish the charge of abetment by aiding, BMS must be shown to have had knowledge of the circumstances constituting the crime (see BMS (No 1) at [157]). It had to be proven that the aid was intentionally given, in the sense that BMS intended to aid the commission of the offence (see BMS (No 1) at [160]).

  32. Main factual findings

  33. [18] The District Judge held that the claim was false. He stated that it was “obvious” that the sale price of the Flat was $390,000 (see BMS (No 1) at [238]). The $490,000 price indicated on the OTP was to facilitate the illegal cash-back arrangement, and there was nothing to show that the claim could be made in law or custom (see BMS (No 1) at [238]–[241]). He also held that the OTP was a sham agreement, since the parties never intended it to bind their relationship (see BMS (No 1) at [252] and [254]). Instead, their relationship was governed by their oral agreement in so far the price of the Flat was concerned (see BMS (No 1) at [252]). The OTP was entered into simply to satisfy the formalities required to sell and purchase the Flat (see BMS (No 1) at [253]). Even if the agreement to return $100,000 to the Buyers was a collateral agreement, both the OTP and the collateral contract would be tainted by the same illegality (viz, the cash-back arrangement) (see BMS (No 1) at [255]). A contract that was, ex facie, illegal would not be enforced by the court, and, in any case, where the plaintiff was involved in reprehensible conduct, the doctrine of illegality would not apply to aid him (see BMS (No 1) at [256]–[257]).

  34. [19] The District Judge also held that Koh knew that the claim was false. He accepted the Agents’ evidence that the Sellers knew and agreed to the cash-back arrangement at the time of signing the OTP and rejected Koh’s evidence that he was not involved in any such agreement (see BMS (No 1) at [74] and [103] (on Teo), [79]–[80] and [110] (on Ho), and [93] and [129] (on Koh)). Crucially, the District Judge held that BMS knew that Koh had originally agreed to participate in the cash-back arrangement for the following reasons:

  35. (a) Koh always intended to sell the Flat at $390,000 and admitted to having told BMS that the price of $490,000 was false (see BMS (No 1) at [166] and [224]).

  36. (b) In the letters to the HDB and the IRAS, there were clear and unambiguous references to $100,000 being returned to the Buyers (see BMS (No 1) at [171]). The fact that $100,000 had to be returned to the Buyers was also made known at the K K Yap Meeting by Hong and, furthermore, Ho had told BMS about the cash-back arrangement at the Marina Mandarin Meeting (see BMS (No 1) at [167]–[171], [185], [206], and [219]).

  37. (c) BMS had access to objective evidence that would have indicated to him the truth of Koh’s instructions (see BMS (No 1) at [178]). For example, the service commission form prepared by Teo showed a commission amount based on a sale price of $390,000, which indicated that Koh had only intended to sell the Flat at that price. BMS himself accepted that this was something he should have probed (see BMS (No 1) at [178]–[179]).

  38. (d) BMS never made any attempts to ask the Agents to clarify the sum of $100,000 (see BMS (No 1) at [181]).

  39. [20] In the District Judge’s view, BMS used the filing of the Writ as a tool to induce the Agents and Buyers to settle the claim and never intended the matter to go to trial (see BMS (No 1) at [226]).

  40. The High Court Judge’s decision

  41. [21] On appeal, the High Court Judge upheld the conviction. However, he allowed BMS’s appeal on sentence in part and reduced it to one month’s imprisonment and a fine of $10,000 (see BMS (No 2) at [75]). His main findings will now be set out in brief.

  42. [22] The High Court Judge, like the District Judge, found that there was no dispute that Koh had made a claim in a court of justice (see BMS (No 2) at [35]). In his view, the only issues were whether (see BMS (No 2) at [36]):

  43. (a) the claim was a false one;

  44. (b) the Sellers agreed to participate in the cash-back arrangement; and

  45. (c) BMS knew that the Sellers had agreed to participate in the cash-back arrangement.

  46. [23] The High Court Judge held that the claim was “false” for the following reasons:

  47. (a) The parties agreed to a sale price of $390,000 for the Flat. The true amount of damages would be, at most, $10,000 (being the difference between the actual agreed price and the eventual sale price of $380,000) (see BMS (No 2) at [45]). The OTP reflected a price of $490,000 due to the illegal cash-back scheme (see BMS (No 2) at [47]). To determine the falsity of a claim, a contextual interpretation of the claim should be adopted, and one could not simply plead the price indicated on the OTP without mentioning the actual sale price (see BMS (No 2) at [47]). The claim was simply “Koh’s … blatant attempt to enforce the [OTP] without the [cash-back arrangement] by way of court proceedings” (see BMS (No 2) at [47]).

  48. (b) The Sellers would have to rely on the illegality itself to substantiate their claim against the Buyers and the claim was therefore bound to fail, especially since the OTP was entered into to deceive third parties (see BMS (No 2) at [48]).

  49. (c) Whether or not it was the Buyers’ duty to plead the collateral contract in their defence (or for the Sellers to raise it in the SOC) was irrelevant in determining whether the claim was genuine (see BMS (No 2) at [49]). In any case, in light of Bulaki Ram, BMS could not argue that the Sellers had no duty to raise a potential defence for the Buyers and that it was for the Buyers to raise it in their defence. The claim was false because the Sellers were claiming for more than their due, under the agreement. The issue was not whether the claim presented in the SOC was one that was properly pleaded or an illegal claim, but whether BMS, with knowledge of the cash-back arrangement, abetted the commission of the offence (see BMS (No 2) at [49] and [52]).

  50. (d) Considering the circumstances leading up to the filing of the SOC, it was clear that the claim was for the difference between the false price of $490,000 and the eventual sale price of $380,000, and that was a “patently false claim in law” (see BMS (No 2) at [51]). This was supported by the fact that the SOC was filed in the District Court, which suggested that the unliquidated claim was for more than $60,000 (the jurisdictional limit of civil claims that can be made in the Magistrates’ Courts under s 52(1) (read with s 2) of the Subordinate Courts Act (Cap 321, 2007 Rev Ed)) (see BMS (No 2) at [51]).

  51. (e) Section 209 of the PC would not apply only to cases where the whole claim was false; it would apply where a claim was false in a material particular, whether by way of an outright lie, deliberate omission or suppression of material facts (see BMS (No 2) at [53]). Here, the amount of damages was the essence of the claim filed in court, and it was computed on the falsely pleaded basis that the actual price was $490,000 (see BMS (No 2) at [53]).

  52. (f) The offence was complete once the claim was filed in court (if the other elements of s 209 were satisfied) (see BMS (No 2) at [55]). It did not matter if the claim was verified or if evidence on the claim was adduced (see BMS (No 2) at [55]). The falsehood here was carried to the point of no return when the settlement was effected (see BMS (No 2) at [55]).

  53. [24] The High Court Judge agreed with the District Judge’s finding that the Sellers had agreed to participate in the cash-back arrangement from the beginning. In the High Court Judge’s views, the findings were “amply supported” by the Agents’ evidence and were not perverse in any way (see BMS (No 2) at [64]).

  54. [25] Most significantly, the High Court Judge also upheld the District Judge’s finding that BMS knew that the Sellers had agreed to participate in the cash-back arrangement. In this regard, he stated (BMS (No 2) at [66]):

  55. [26] I pause here to make two observations. First, the High Court Judge did not clearly explain why and how the K K Yap Meeting and the Marina Mandarin Meeting gave rise to such knowledge on BMS’s part. The High Court Judge had earlier observed that the Prosecution’s case was that during the K K Yap Meeting, Hong had told BMS that $100,000 was to be returned to the Buyers (see BMS (No 2) at [15]). In addition, the High Court Judge also pointed out that the Prosecution’s case was that at the Marina Mandarin Meeting, BMS had rejected an offer to settle at $20,000, remarking that PropNex’s name was definitely worth more than $120,000 (see BMS (No 2) at [21]). However, there was no explanation why and how these two meetings resulted in BMS gaining knowledge of the cash-back scheme. Second, the High Court Judge’s finding, not unlike the District Judge’s, was simply that BMS knew (or ought to have known) that there was a cash-back arrangement between the Buyers and the Sellers. It was similarly entirely silent on whether BMS knew that Koh was a party to the cash-back arrangement from the outset. There was remarkably no finding of fact that BMS did not believe Koh’s instructions to him.

  56. [27] In addition, the High Court Judge also considered: (a) the letters sent to the HDB and the IRAS, which contained clear references to $100,000 being returned to the Buyers and the true purchase price of $390,000; and (b) Koh’s statements to the CPIB, in which Koh stated that the $490,000 price was false, and that he was told by BMS that he could sue the Buyers for breaching the contract of $490,000. In light of the above evidence, the High Court Judge found that BMS knew, or deliberately shut his eyes from knowing, that Koh had agreed to inflate the transaction price of the Flat to $490,000 (see BMS (No 2) at [67]–[71]).

  57. Proceedings leading up to the present references

  58. [28] BMS applied to reserve certain questions of law of public interest to this court, pursuant to s 60(1) of the SCJA. His application was, however, dismissed by the High Court Judge, who provided his reasons for doing so in BMS (No 2). Essentially, the High Court Judge accepted the Prosecution’s submission that there were no difficult points of construction in respect of the elements of s 209 of the PC (see BMS (No 2) at [79]). However, in BMS’s subsequent application to this court, he (as well as the Prosecution) was granted an extension of time to apply to the High Court Judge for leave to raise questions of law of public interest to this court (see BMS (No 3) at [87] and [108]). In the hearing that followed, the High Court Judge granted both BMS and the Prosecution leave to raise questions of law of public interest to this court as set out at [29] and [30] below (see Bachoo Mohan Singh v Public Prosecutor and another matter [2010] SGHC 26), culminating in the present proceedings.

  59. The questions of law of public interest

  60. [29] The five questions of law of public interest raised by BMS will, for convenience, be referred to, respectively, as “BMS’s Question 1”, “BMS’s Question 2”, “BMS’s Question 3”, “BMS’s Question 4”, and “BMS’s Question 5”. They are as follows:

  61. [30] The Prosecution’s questions of law of public interest are as follows:

  62. The main submissions of the parties before this court

  63. BMS’s submissions

  64. [31] BMS’s counsel submitted that two fundamental points were central to this case, viz the meaning of the term “dishonestly” and the meaning of the term “false” (as these terms are used in s 209), although it was also recognised that the other elements of s 209 of the PC should not be overlooked.

  65. [32] In relation to the meaning of “dishonestly” – one of the mens rea elements of the offence set out in s 209 – BMS’s counsel relied on ss 23 and 24 of the PC as defining “dishonestly”. Those sections, respectively, read:

  66. [33] It was submitted that if material facts have not been suppressed during the process of making a claim, there could not have been an intention to cause “wrongful gain” or “wrongful loss” and the claim therefore could not have been made “dishonestly” for the purposes of s 209 of the PC. BMS’s counsel argued that since the material facts had been actively publicised via Koh’s press interview with The Straits Times (see [11] above) and the letters sent by BMS to various government agencies, there had been no attempt or intention to suppress any facts, notwithstanding that the SOC did not, on its face, refer to the oral agreement for $390,000. It was further contended that the element of dishonesty could only be ascertained after the process of making a claim had been completed, for if the claim had been adjudicated, regardless of whether the trial judge decided that $390,000 or $490,000 represented the true sale price of the Flat, there would have been no wrongful gain or wrongful loss. The Prosecution, it was suggested, had therefore acted prematurely in prosecuting BMS under s 209 of the PC on the basis of what was stated (or not stated) in the SOC; it was, at that point in time, impossible to prove or infer that a litigant intended to suppress any material facts and thereby intended to cause wrongful gain or wrongful loss.

  67. [34] These arguments were also canvassed in relation to the issue of when a litigant “makes” a claim for the purposes of s 209 of the PC. Here, BMS’s counsel argued that, taking a purposive interpretation, the making of a claim for the purposes of s 209 of the PC should be seen as a “process” which only terminates at the scintilla of time, just prior to the court’s adjudication on the merits. Until that point, it was submitted, a litigant could always seek to amend, settle or withdraw his claim. Using this scintilla of time as the point of reference to determine whether a litigant “makes” a claim, and whether that claim is “false” for the purposes of s 209 of the PC was preferable, it was argued, for it would give full effect to the doctrine of locus poenitentiae as well as the power of a litigant to amend his claim at any stage of proceedings under the Rules of Court (Cap 322, R 5, 2006 Rev Ed). BMS’s counsel contended that, on the facts, as the Sellers’ suit was settled shortly after the SOC was filed, it could not be said that an offence under s 209 (read with s 109) of the PC had been committed by BMS.

  68. [35] Finally, in relation to the meaning of the term “false” in s 209 of the PC, BMS’s counsel submitted that a claim is only false if it is impossible for the claim to be true or if the claim is without factual basis. In this regard, BMS’s counsel raised the following points:

  69. (a) It was never the Prosecution’s case that Koh was wrong in, or disentitled from, even commencing an action; rather, the complaint was how BMS (on behalf of the Sellers) had conducted the claim – if so, the focus was not on the falsity of the claim but on the manner of its pleading.

  70. (b) While the information provided by BMS in the SOC may arguably have been incomplete, there was no evidence led by the Prosecution to suggest that that information would have been suppressed at trial. This also reinforced the point made in relation to the issue of dishonesty and making a claim – that the prosecution was premature and that the proper time for judging a claim’s falsity is the scintilla of time prior to the adjudication of claim, at which point it can be said that a litigant “makes” a claim for the purposes of s 209 of the PC.

  71. (c) As a matter of principle and policy, it is no function of a statement of claim to anticipate matters or facts which may be included in a defence, and any reasonable solicitor would have drafted the SOC in a similar manner.

  72. (d) It was possible for the stated price of $490,000 to be the true legal price, and if so, the claim had a factual basis and was not false.

  73. The Prosecution’s submissions

  74. [36] The Prosecution submitted that s 209 of the PC was part of a scheme of offences that was intended to safeguard the whole judicial process. Given the origins of the PC, Indian authorities applying s 209 of the Indian Penal Code were highly persuasive. Differences in civil procedure regimes between Singapore and India were of little relevance for the purposes of interpreting s 209.

  75. [37] In support of these contentions, the Prosecution argued that Parliament must be presumed to know the law. Therefore, it must be presumed that Parliament was aware of certain differences in civil procedure between India and Singapore when it enacted s 209 of the PC. Given that s 209 was enacted despite knowledge of these differences, the Prosecution submitted, it followed that such differences were irrelevant to the interpretation and operation of s 209 of the PC.

  76. [38] The Prosecution also contended that statutory interpretation should give effect to a legislative provision, rather than render it nugatory.

  77. [39] Following these prefatory submissions, the Prosecution focused on three main issues, viz, whether the claim was made before a court of justice, whether the claim was false, and the requisite mens rea for the offence of abetment by intentionally aiding. The following was submitted:

  78. (a) Having regard to Indian authorities as well as the Rules of Court, it was submitted that a claim is made for the purposes of s 209 as soon as it is filed, and therefore, a claim in the present case had been made when the SOC was filed in the Subordinate Courts, regardless of whether the action was eventually settled.

  79. (b) A “false claim” should be defined as a “claim by one of more, than his due, and amercement and punishment therefore” or the “[u]ndue assertion of a right to something” (having regard to P Ramanatha Aiyar’s The Law Lexicon (Justice Y V Chandrachud & V R Manohar gen eds) (Wadhwa and Company, 2nd Ed, 1997) (“The Law Lexicon”) at p 705).

  80. (c) The OTP, it was submitted, was a sham as both the Buyers and the Sellers never intended it to bind their relationship, and prepared it solely for the purpose of misleading third parties.

  81. (d) It would not be necessary for the entire claim to be false in order for s 209 of the PC to be engaged. It would be sufficient if, by presenting a half-truth or suppressing certain information, a misleading impression is created.

  82. (e) The mens rea element for the offence of abetment by intentional aiding is satisfied if it is established that the abettor must have known the circumstances constituting the principal crime when he voluntarily rendered an act of positive assistance, and this had indeed been established here.

  83. Overview of the issues

  84. [40] I have already set out the questions of law of public interest raised to this court above (at [29]–[30]) and will not repeat them here. It is immediately apparent that BMS’s Question 1 (see [29] above) straddles four issues concerning how s 209 should be construed. The issues are as follows:

  85. BMS’s Question 3 and BMS’s Question 4 will be discussed under (a) and (c) respectively. BMS’s Question 2 and BMS’s Question 5, in my view, can be discussed together; they relate to one overarching issue, viz, a solicitor’s liability for abetting the making of a false claim. I should add that my observations on, and answers to, the questions are made for the purpose of clarifying the ambit of s 209 of the PC, and they should therefore be read in that context.

  86. [41] Before I delve further into this matter, I should state that in an ordinary application to this court under s 60 of the SCJA, this court would generally be averse to making observations about findings of fact made below. This court’s task is simply to resolve the issues of law of public interest that have arisen in the proceedings below. Where however, as here, the findings of fact are inextricably intertwined with the questions of law of public interest that have been raised, this court is, in my opinion, duty-bound, in ruling on the questions of law, to also address the related findings of fact made by the court(s) below. A court of justice cannot simply gloss over the presence of incorrect and/or unsupportable findings of fact, particularly, if they spring from a fundamental misapprehension of legal principles and have caused a miscarriage of justice. In this regard it would be apposite to restate the current approach towards serious judicial errors that was emphatically declared by Chan Sek Keong CJ recently in Yong Vui Kong v Public Prosecutor [2010] 2 SLR(R) 192 at [15]:

  87. Preliminary observations

  88. [42] Before dealing with the substantive issues, however, a number of preliminary observations ought to be made.

  89. [43] A crucial concern arising from the decision of the District Judge, which caused widespread consternation within the legal profession – even prompting the intervention of the Law Society in the previous hearing before this court (see BMS (No 3) at [83]) – is that if it is accepted (as the Prosecution now does) that the Sellers had a viable cause of action on the facts, how should BMS have pleaded the Sellers’ case in order not to commit an offence under s 209 of the PC? The present matter concerns, in this light, a profound, and seemingly irreconcilable, difference of views as to how a “claim”, such as the one the Sellers attempted to make in the Subordinate Courts, ought to be properly pleaded.

  90. [44] The Prosecution, in its reply submissions, insisted that BMS, in filing the SOC on behalf of the Sellers, “could have been candid and disclosed the whole facts in the pleadings” [emphasis added]. The Prosecution further contended that:

  91. [45] The contrary position is represented by the actions of BMS himself, as well as the views expressed over the course of these proceedings by BMS’s counsel, who are eminent members of the Bar. They have stated emphatically that they would have pleaded the Sellers’ case in exactly or substantially the same way. Unfortunately, attempts by BMS’s counsel to introduce expert evidence on how the matter ought to have been pleaded were strenuously resisted by the Prosecution before the District Judge, who upheld the Prosecution’s objections. This turn of events is regrettable because the Prosecution itself led no evidence on this point but curiously maintained, before this court, that an entirely different approach to pleadings had to be taken here by BMS as “the present situation is out of the ordinary, and it is necessary to sterilise the claim” (see [44] above). The Prosecution could not, however, refer us to any authority supporting this novel argument. I will revisit this issue later (at [73]–[74] below).

  92. [46] This apparently unbridgeable difference of views as to how the Sellers’ case ought to have been pleaded also found its way into the parties’ submissions on the proper time to assess whether the constituent elements of s 209 of the PC had been made out. BMS’s counsel suggested that it should be just before the claim is adjudicated, but the Prosecution insisted that it should be at the moment the claim is filed.

  93. [47] That s 209 of the PC, which on its face appears to be a beguilingly simple provision, gives rise to such stark and persistent differences of opinion is an indication of the interpretive difficulties faced by the courts below in attempting to give the provision its proper construction.

  94. [48] It is trite law that in interpreting a statutory provision, such as s 209 of the PC, a court is bound by s 9A(1) of the Interpretation Act (Cap 1, 2002 Rev Ed) and must prefer an interpretation that advances the legislative intention or purpose over one that does not (see L & W Holdings Pte Ltd v Management Corporation Strata Title Plan No 1601 [1997] 3 SLR(R) 30 and Planmarine AG v Maritime and Port Authority of Singapore [1999] 1 SLR(R) 669). It is also clear that a court may refer to extrinsic material or take into account the context surrounding the legislative provision in an exercise of statutory interpretation, even if the provision is clear on its face (see Public Prosecutor v Low Kok Heng [2007] 4 SLR(R) 183).

  95. [49] The context surrounding s 209 of the PC, and its drafting history, is particularly important in this case, given the different practices in civil procedure in India and Singapore. This was referred to in BMS (No 3) at [79]) as follows:

  96. Section 209 should not be interpreted in a manner that might criminalise what may be said, in the final analysis, to be legitimately different pleading practices in Singapore. That cannot have been the object of s 209 of the PC when the Legislative Council of the Straits Settlements (“the Legislative Council”) introduced the PC (as the Penal Ordinance (Ordinance 4 of 1871)) into the Straits Settlements in 1872. The reply was, after all, already part of the existing pleading scheme here, even then, in contrast to India.

  97. The purpose of s 209 of the Penal Code

  98. [50] Naturally, in order to properly interpret s 209 of the PC, it is first necessary to ascertain the objective undergirding the provision. To divine this, it is useful to understand the original impetus for introducing s 209 of the Indian Penal Code in India, in order to see if this sheds any light.

  99. [51] The motivation for the provision which was ultimately enacted as s 209 of the Indian Penal Code was clearly articulated by the Indian Law Commissioners in “Note G” of A Penal Code (Pelham Richardson, Cornhill, 1838) (“the Law Commission Report”) (a reprint was published by The Lawbook Exchange Ltd in 2002). There it was stated (at pp 98–99):

  100. [52] As pointed out in BMS (No 3) at [77], the Indian Law Commissioners, in proposing the progenitor to s 209 of the Indian Penal Code, acknowledged that they were creating a new offence that had no English precedent, and that furthermore, they were intentionally departing from the English position of affording considerable latitude to litigants in presenting their claims in court. This is a point of considerable importance as Singapore’s civil procedure rules (unlike India) have historically, until recently, closely paralleled the concurrent English prototypes.

  101. [53] In addition, it is noteworthy that the Indian Law Commissioners were motivated to criminalise false claims on the grounds that it tended to delay justice and compromise the sanctity of a court of justice as an incorruptible administrator of truth and a bastion of rectitude. The primary objective of the provision appears to have been to deter the filing of such claims by the native population, whose morality was perceived by the English colonialists as being flawed (see also [81] below).

  102. [54] It is also pertinent that notwithstanding that criminal sanctions for false pleadings were regarded as unenforceable on account of the then defective state of Indian civil procedure laws, the Indian Law Commissioners felt able to recommend, in the draft Indian Penal Code, section 196 (“the Draft Provision”), which provided for a punishment for the “frivolous and vexatious instituting of civil suits” as follows (the Law Commission Report at p 27):

  103. After the Indian civil procedure rules were revamped, the Draft Provision was, eventually, modified and enacted as s 209 of the Indian Penal Code, which is in pari materia with s 209 of the PC.

  104. [56] I summarise. It is imperative to firmly bear in mind the objectives for which the Legislative Council enacted s 209 of the PC. It was clearly not the intention of the Legislative Council or the object of s 209 of the PC to alter or even criminalise, by a side wind, well-established civil pleading practices – this much is obvious from the fact that Singapore has, unlike India, all along incorporated and preserved the architecture of contemporary English civil procedure rules.

  105. [57] Therefore, in purposively construing the constituent elements of s 209 of the PC (in particular the terms “claim”, “makes … any claim”, and “knows to be false”), consideration should be given to the Legislative Council’s (and now Parliament’s) intention to prevent the abuse of court process by the making of false claims in the context of the applicable civil procedure rules in Singapore and not India.

  106. Construing section 209 of the Penal Code

  107. The meaning of a “claim”

  108. [58] The term “claim”, while appearing in a number of provisions in the PC, is not defined in the PC, and it therefore falls to this court to determine what should be regarded as a “claim” for the purposes of s 209 of the PC.

  109. [59] In The Law Lexicon, it is noted that the word “claim” is “of very extensive signification, embracing every species of legal demand” and “is one of the largest words of law” (at p 329). The protean nature of the word “claim” is illustrated by the fact that various legal dictionaries provide multiple definitions. Among some of the more relevant definitions of the word “claim” for present purposes listed by The Law Lexicon are (at p 330):

  110. (a) a “demand made of a right or supposed right” or a “calling of another to pay something due or supposed to be due”;

  111. (b) a demand for something as due, or an assertion of a right to something;

  112. (c) “relief and also any grounds of obtaining the relief”; and

  113. (d) the assertion of a cause of action.

  114. [60] Similarly, Black’s Law Dictionary (Bryan A Garner chief ed) (West 9th Ed, 2009) provides various definitions of the word “claim” (at pp 281–282):

  115. [61] In my view, the word “claim” is an etymological chameleon that takes its colour and definition from the context in which it is used: a “claim” for the purposes of s 209 of the PC does not necessarily mean the same thing as a “claim” for the purposes of, for example, insurance law or patent law or even other provisions of the PC.

  116. [62] In the context of s 209 of the PC, the most helpful definitions of the word “claim” are definitions (c) and (d) as set out at [59] above. Drawing on these definitions, a litigant makes a “claim” before a court of justice for the purposes of s 209 when he seeks certain relief or remedies from the court, and a “claim” for relief necessarily encompasses the grounds for obtaining that relief. A “claim” for these purposes may, for convenience, also be said to be a “cause of action”, and, indeed, The Law Lexicon notes (at p 330):

  117. [63] The term “cause of action” here does not refer to forms of suing, in the sense of a litigant having a cause of action in contract and a cause of action in tort, or a cause of action in the tort of negligence and a cause of action in the tort of nuisance. Instead, it refers more broadly to the substance or foundation of the action – to the fact or combination of facts that forms the very essence of a litigant’s right to seek redress from a court (see John Burke, Jowitt’s Dictionary of English Law vol 1 (Sweet & Maxwell, 2nd Ed, 1977) at p 297; Black’s Law Dictionary at p 251; Daniel Greenberg, Stroud’s Judicial Dictionary of Words and Phrases vol 1 (Sweet & Maxwell, 7th Ed, 2009) at p 387; and The Law Lexicon at pp 288–289). A litigant, therefore, makes only one claim even though he sues alternatively in contract and tort, and even though he seeks more than one type of relief (eg, damages and an injunction), as long as the claim arises out of the same set of facts and is against the same defendant.

  118. [64] I pause to note that while the word “claim” is ordinarily taken to refer to the relief prayed for by a claimant, s 209 ought not to be restrictively confined to just a plaintiff’s claim. It is noteworthy that when the Indian Law Commissioners first contemplated criminalising false pleadings, they plainly regarded false defences as being equally objectionable as false claims. One of the examples given of a false claim in the Law Commission Report (at p 98) (see also [87] below) would be as follows:

  119. [65] The reason for criminalising false defences as well as false claims is obvious when the purpose of s 209 of the PC is recalled: the court process can just as easily be abused by defendants as by plaintiffs in perpetrating deliberate falsehoods, thereby perverting the course of justice and undermining the authority of the law. Further, I note that s 209 when finally enacted in India used the broader term “claim” in place of the narrower term “civil suit” as the Indian Law Commissioners originally suggested in the Draft Provision (see [54] above). I am therefore of the view that the word “claim”, for the purposes of s 209 of the PC, ought to also refer to defences adopted by a defendant. Pertinently, this is one of a small handful of points that both parties could agree on.

  120. The meaning of “makes” a claim

  121. [66] The word “makes” is also not defined anywhere in the PC, and there were vigorous exchanges between BMS’s counsel and the Prosecution about what it means. BMS’s counsel argued that a claim is not made until just before a judge adjudicates on it, while the Prosecution submitted that a litigant “makes” a claim is as soon as the claim is filed.

  122. [67] In my view, neither of these conflicting stances is correct. The difficulty with the construction pressed upon this court by BMS’s counsel is that it is entirely uncertain – the time just before the claim is adjudicated is an indeterminate one, given that a judge may be adjudicating the claim continuously throughout the trial, or may reserve judgment to a later date. It would be impossible, on this view, to pinpoint a specific moment in time at which a litigant “makes” a claim for the purposes of s 209 of the PC. This would effectively emasculate the provision. On the other hand, the Prosecution’s argument, relying mainly on Indian authorities, that one “makes” a claim within the meaning of s 209 of the PC the moment a statement of claim is filed, is also not correct, as it does not acknowledge the stark differences between the past and present civil procedure regimes in India and Singapore. It also fails to appreciate that claims can be initiated through different processes (see [82] below).

  123. [68] In Indian civil procedure, even today, there appears to be no provision permitting or requiring the plaintiff to file a reply to a defence (see BMS (No 3) at [79]). Without the right to file a reply, a plaintiff in India would apparently be obliged to plead all material facts in his statement of claim, and cannot, on pain of prosecution under s 209 of the Indian Penal Code, omit any facts if to do so may render his pleadings false. In Singapore, however, a plaintiff may legitimately opt to reserve appropriate material facts or even legal points for inclusion in a reply.

  124. [69] In my view, it would be wrong to say that a litigant “makes” a claim within the scope of s 209, as soon as he serves his statement of claim. A statement of claim, on its own, unaccompanied by a reply, contains only part of the plaintiff’s claim, as it does not contain all the material facts which may form the basis of the plaintiff’s right to seek redress from the court (unless no reply is filed, or the reply does not contain any material facts). It is the statement of claim and the reply, read in totality, which constitute the plaintiff’s plea for judicial assistance and the basis on which he seeks relief from the court. It would be premature (and incorrect) to say that a plaintiff “makes” a claim within the meaning of s 209 as soon as he serves his statement of claim; it would also not be possible to say that the claim is “false” when the claim is still inchoate.

  125. [70] In oral arguments before this court, the Prosecution contended that an offence under s 209 of the PC could be made out at the statement of claim stage and/or the reply stage. Therefore, the Prosecution argued, it would not be premature to commence a prosecution under s 209 of the PC based solely on what a plaintiff had alleged in the statement of claim, if the other elements of s 209 would be made out, because once a false statement of claim has been filed, a plaintiff “makes” a claim for the purposes of s 209 of the PC.

  126. [71] Quite apart from the fact that it is doubtful whether what is stated in a statement of claim can ever be conclusively said to be “false” without reference to what is contained in the reply, this argument fails to appreciate the indivisible nature of a “claim”. It is not correct to assert that a statement of claim and a reply each contain a “claim” – rather, they must be read together in order that a plaintiff’s entire case may be revealed. As such, a plaintiff cannot be said to “make” a claim until both the statement of claim and reply (if any) are read together, and this obviously cannot be done at the precise moment a statement of claim is filed.

  127. [72] There is yet another intractable difficulty in the way of acceptance of the Prosecution’s submissions: it contradicts settled pleading practices. It has long been settled that it is not the function of the statement of claim to anticipate a defence. As was explained in a seminal English case on pleading procedure, Hall v Eve (1876) 4 Ch D 341, by James LJ (at 345–346):

  128. In the same case, Bramwell JA also mused (at 348):

  129. [73] If the Prosecution is correct and a plaintiff “makes” a claim for the purposes of s 209 of the PC as soon as he files his statement of claim, that would undoubtedly require a plaintiff, in order not to fall foul of s 209, to anticipate all defences by including in the statement of claim facts he might otherwise have reserved for inclusion in the reply. Perhaps because it recognised this logical conundrum, the Prosecution also argued that BMS, in drafting the SOC, should have been candid and disclosed the “whole facts” (see [44] above). BMS, it suggested, should have pleaded the claim in this fashion because:

  130. [74] It was, however, never persuasively explained by the Prosecution what made the facts of this case so exceptional as to necessitate a departure from the “usual position”. Cases involving the alleged illegality of a transaction are not an uncommon occurrence in our courts, and, as far as I am aware, all the leading treatises on pleadings do not suggest that that they merit different or special treatment. When queried, the Prosecution acknowledged that it knew of no authority that would support its submissions on this issue. The Prosecution was also unable to satisfactorily show this court how BMS ought to have pleaded the Sellers’ case in the SOC, apart from suggesting that all material facts ought to have been disclosed from the outset. However, this suggestion, as pointed out above, does not take into account the current pleading practices.

  131. [75] In my view, the submissions of both parties on this particular issue must be rejected, and a third alternative sought to cut this Gordian knot – one which adequately balances the flexibility to be given to litigants and their solicitors in pleading strategy (such as the right to reserve facts to be included in the reply) against the State’s interest in deterring the making of false claims.

  132. [76] It seems to me on the basis of the prevailing civil procedure rules in Singapore that the only appropriate point in time when it can be said that a litigant “makes” a claim for the purposes of s 209 of the PC is one that takes into account the present notional deadline for the filing of pleadings, viz, the close of pleadings. This is the crucial point of time when the parties’ respective cases have crystallised. At the close of pleadings, the issues of fact and law between the parties “should be revealed precisely” (see Sir Jack Jacob & Iain S Goldrein, Pleadings: Principles and Practice (Sweet & Maxwell, 1990) at p 4). Thereafter, the parties cannot amend their pleadings without the court’s intervention.

  133. [77] As this court observed in Obegi Melissa and others v Vestwin Trading Pte Ltd and another [2008] 2 SLR(R) 540 (at [13]):

  134. [78] Deeming the close of pleadings as the point in time a litigant “makes” a claim for the purposes of s 209 of the PC avoids most of the pitfalls inherent in both parties’ extreme positions. It is a definitive and determinate point in the litigation process (see Singapore Court Practice 2009 (Jeffrey Pinsler SC gen ed) (LexisNexis, 2009) at paras 18/20/2 and 18/20/3), and it gives full effect to the significance of a plaintiff’s ability, as provided for in the Rules of Court, to file a reply. At the same time, making the close of pleadings the decisive point in time also covers the situation where no reply is made by the plaintiff. In that situation, it would not be premature to prosecute an offence under s 209 based solely on what is included in a plaintiff’s statement of claim. It is important to appreciate, however, that it is only at the close of pleadings that it becomes possible to say whether the plaintiff’s “claim” consists of either the statement of claim and reply or only the statement of claim, for it is only at that stage that the parties are deemed, in law, to have finalised their pleadings.

  135. [79] This construction of s 209 of the PC also promotes the purpose of the provision, viz, to prevent litigants from corrupting the administration of justice and abusing the court process by filing false claims (see [57] above). It is only after the close of pleadings that the court’s machinery is ordinarily engaged, in the sense that the close of pleadings “signifies the commencement of the timeline under O 25 r 1 of the Rules [of Court] for taking out a summons for directions as well as triggers in appropriate cases the operation of the automatic directions under O 25 r 8” (see the passage quoted at [77] above). Beyond that point, parties may only make amendments to their pleadings with leave of court. Determining that a plaintiff only “makes” a claim for the purposes of s 209 of the PC at the close of pleadings, therefore, ensures that the conduct Parliament intended to prevent is criminalised neither too early nor too late, but at the precise point of time at which it would ordinarily cause mischief – that is to say when the interactive curial processes would usually commence.

  136. [80] It might plausibly be said that determining the close of pleadings as the point at which a plaintiff “makes” a claim within the meaning of s 209 of the PC fails to take into account certain situations where the court process is abused prior to the close of pleadings, eg, falsely obtaining summary or default judgment. The short answer to this is that there are other provisions in the PC to deal with these situations, such as ss 191, 193 and 210. To view s 209 of the PC as the panacea to all pleading misdeeds would be to force it into a Procrustean bed. This is something this court cannot condone.

  137. [81] At the end of the day, s 209 of the PC should be interpreted in an ordinary commonsense way (that takes into account the broad canvas of existing pleading rules and practices) and it must be accepted that there may well be instances of mischief which may not be captured. This, I acknowledge, is an imperfect application of what can also be said to be an imperfect provision. I cannot, however, under the guise of interpretation adopt an elastic interpretation that attempts to embrace all manner of contingencies when the letter of the provision does not permit this. I should also point out that there have been no known previous prosecutions under s 209 of the PC in Singapore and it is, therefore, improbable that such a sensibly restrained interpretation will suddenly open the proverbial floodgates and wash away the legal profession’s existing inhibitions in relation to pleading practices. Here, I would also reiterate that s 209 was introduced in India by the British colonialists for reasons which could today be considered anachronistic and, I dare say, entirely unacceptable because of the patronising assumptions made about Asian morality. This has been mentioned in my judgment in BMS (No 3) at [78] and I can do no better than to repeat my earlier observations here:

  138. [82] I have earlier considered what a “claim” refers to in the context of an action commenced by writ. Significantly, there is a further consideration that counsel did not address. Section 209 of the PC ought to apply with equal force to actions commenced by other originating processes such as originating summonses. Order 7 r 3 of the Rules of Court states:

  139. The above rule indicates that there is no absolute requirement for the plaintiff in an originating summons to plead material facts in support of his claim. It would make no sense to adopt the Prosecution’s approach in respect of originating summonses (ie, deeming the claim to be made as soon as an originating process is filed in court), as the court would not be aware of the facts supporting the claim made by looking at the originating summons filed. In my view, when one considers that s 209 of the PC must apply equally to all originating processes, it becomes even clearer that the claim is made only after the parties have finalised the case(s) they intend to pursue in court. For this reason, I take the view that for originating summonses, a litigant “makes” a claim (within the meaning of s 209 of the PC) only when his affidavit evidence, as directed, is filed in court.

  140. [83] Returning to the facts of this case, it will readily be seen that, where an action commenced by writ, engrossed with a statement of claim, is resolved before the close of pleadings, it will not be possible to say that a litigant “makes” a claim for the purposes of s 209 of the PC. Indeed, here a settlement was reached shortly after BMS filed the SOC and the action was discontinued even before any defence or reply was filed. Plainly, it is not possible to say that a “claim” had been “made” for the purposes of s 209 of the PC. I would therefore disagree with the lower courts’ determination that the offence (under s 209 of the PC) was complete once the claim was filed in court, and that the falsehood was carried to the point of no return when the settlement was effected (see [23(f)] above). On this point alone BMS’s conviction has to be set aside. Given the stark differences between pleading practices in India and Singapore, particularly in relation to the entitlement of a plaintiff to file a reply, the views expressed in dated Indian decisions (and the treatises that rely on them) should have been more cautiously assessed.

  141. The meaning of making a claim which one “knows to be false”

  142. [84] The word “false” is similarly not defined in the PC, though it appears in quite a number of other provisions in relation to different subject matters (eg, false claims (s 209), false evidence (s 191), false information (s 177), false statement (s 181), and false instrument (s 264), etc). What is considered “false” would depend, largely, on the intent and purport of each particular provision. As for the meaning of the word “false” under s 209 of the PC, three points are noteworthy.

  143. [85] First, given that these are criminal proceedings, the Prosecution bears the burden of proving the falsity beyond a reasonable doubt. The Prosecution cannot simply assert that the claim would have failed, on a balance of probabilities at the civil trial, or establish that it was probable, possible or could be inferred that the claim was false, as may ordinarily be sufficient in a civil case (see Hiralal Sarda and others v Emperor (1932) 33 Cri LJ 860 at 861). The following observations by Bucknill J in Lalmoni Nonia and another v Emperor (1922) 24 Cri LJ 321 at 325, though made within the context of s 193 of the Indian Penal Code, apply with equal force to s 209 of the PC:

  144. [86] Second, where questions of law are involved, it cannot be plausibly said that the claim made in court by the plaintiff (or defendant, as the case may be) is false. In Baisakhi v The Empress (1888) 7 PR No 38 (“Baisakhi”), the court opined (at 100):

  145. I accept Baisakhi as correctly stating the position under s 209 of the PC. It is a legal fiction to say that the courts simply expound the law as it has always been. Existing statements or declarations of legal principle ought not to be considered as being invariably set in stone. Precedents are the servants and not the masters of the judicial process. In ascertaining and applying the law, a court is, of course, bound by the decisions of higher courts. But absent the shackles of stare decisis, a court may undertake its own enquiry into the state of the law and depart from earlier decisions. It is then for the court to make a final determination on any question of law. If it were otherwise, the law would never be able to progressively adapt and advance. The contrary position would also have an immediate chilling effect on counsel’s ability to uninhibitedly prosecute a client’s case comprehensively. Given the above, it is my view that the Prosecution will ordinarily not be able to establish that a claim resting on a question of law is false for the purposes of s 209 of the PC, even if the court eventually rules against the litigant making the claim on that question of law. I would, therefore, emphatically reject the District Judge’s suggestion that claims concerning issues of law can also be considered to be false (see [16] above; see also BMS (No 1) at [239] and [240]).

  146. [87] Third, I will now turn to consider the position in respect of issues of fact. The Indian Law Commissioners gave the following illuminating examples of what they regarded to be “false” claims (the Law Commission Report at p 98):

  147. In both examples, it is obvious that the claims made by A were entirely without factual foundation. In the first example, there was no factual basis for A to claim for the money, as it had already been repaid. In the second example, there was absolutely no factual basis raised by A to support his positive averment that he owed Z nothing. It is clear, from these examples cited by the Indian Law Commissioners, that the mischief that the drafters intended to address under s 209 of the Indian Penal Code was that of making claims without factual foundation.

  148. [88] The case of Bulaki Ram, which the High Court Judge and the District Judge (hereafter referred to collectively as “the Judges below”) heavily relied on, involved facts that were actually rather strikingly similar to the first example given by the Indian Law Commissioners (see [87] above). The plaintiff in Bulaki Ram brought a claim for Rs 88-11. In the course of proceedings, the defendant produced a receipt from the plaintiff for Rs 71-3-3. Before the courts, the plaintiff’s claim to that extent (ie, Rs 71-3-3) was dismissed but he obtained a judgment for the balance. The plaintiff was subsequently charged with making a false claim.

  149. [89] On the facts of the case, Straight J held that there was prima facie evidence for the Prosecution to proceed against the plaintiff. He did not decide that the plaintiff was guilty of making a false claim on the facts of the case. On the contrary, he was careful to emphasise, twice in his judgment, that he was not trying the case before him or expressing any opinion on the plaintiff’s guilt. However, the Judges below relied on Bulaki Ram as excerpted in Justice C K Thakker & M C Thakker, Ratanlal & Dhirajlal’s Law of Crimes vol 1 (Bharat Law House, 26th Ed, 2007) (Ratanlal & Dhirajlal’s Law of Crimes), which reads as follows (at p 989):

  150. [90] It is clear that the learned authors of this treatise had mistakenly elevated the importance of Bulaki Ram by treating it as a case involving a conviction under s 209 of the Indian Penal Code when it was, in fact, merely a case involving the issue of whether there was prima facie evidence to support the prosecution. The Judges below, by relying solely on the case as excerpted, would not have been aware of this important distinction, though in fairness, it was through no fault of theirs as the case report for Bulaki Ram was not made available to them by counsel. Again, I would reiterate my observations in BMS (No 3) at [81]:

  151. [91] Next, I would point out that Straight J’s observations in Bulaki Ram were made in a very narrow context and was, as noted earlier (at [88]), very similar to the straightforward examples given by the Indian Law Commissioners. In particular, Straight J took the view that the claim was prima facie false, stating (Bulaki Ram at 2):

  152. [92] In the examples provided by the Indian Law Commissioners and Bulaki Ram, the claims, as made, were prima facie without any factual foundation. The plaintiff in Bulaki Ram apparently did not question the veracity of the receipt for Rs 71-3-3 and therefore did not have any factual or legal basis for claiming for Rs 88-11 in its entirety. In short, there was not even a colourable claim for the amount claimed as allegedly due. There was a claim, if at all, only for a very small fraction of what was alleged to be due. Similarly, in the first example provided by the Indian Law Commissioners, the receipt produced was not doubted. In their second example, A did not even attempt, at trial, a defence despite his positive averment that he owed Z nothing. In both examples, there were no facts whatsoever to support the plaintiff’s (or defendant’s) claim. In my view, it was on this very narrow and facile basis that these claims were considered by both Straight J and the Indian Law Commissioners to be false. Pertinently, in none of these cases or illustrations was there any complex interplay of issues of fact and law. They simply involved either unambiguous repeat claims or unarguably sham defences. It ought to be also pointed out that all the Indian cases involving s 209 drawn to our attention appear to be instances where the courts initiated proceedings (against the litigants who had made false claims) only after all the pertinent facts had been established at the conclusion of trial proceedings.

  153. [93] I would further observe that the Judges below were content to rely on Bulaki Ram (as excerpted (see [89]–[90] above)) to suggest that the test for falsity was applied by considering the pleading on its face (see BMS (No 1) at [234]–[236] and BMS (No 2) at [52]). However, I do not think that Bulaki Ram stands for the proposition that the litmus test of falsity is to be assessed solely by reference to the pleadings alone, or that every statement of claim which does not, on its face, contain all the material facts is a false claim. Neither does Bulaki Ram stand for the proposition that every exaggerated or overstated claim is false. On the contrary Bulaki Ram suggests that the wider factual context has to be taken into account as its primary consideration was whether, on the facts of the case, the petitioner there had a claim for Rs 88-11 in light of the receipt. But in assessing whether s 209 of the PC is contravened, it is plainly not enough to merely scrutinise the pleadings of a party.

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