Viswanathan Ramachandran v Public Prosecutor

[1] The appellant faced one charge of criminal breach of trust as an agent and one charge of simple criminal breach of trust in the subordinate courts. The first charge read:

while the second charge read:

[2] The appellant was convicted on both charges and sentenced to terms of imprisonment of nine months and 18 months respectively. Both sentences were to be served concurrently. The appellant appealed against his conviction and the Public Prosecutor filed an appeal against the sentence imposed on the first charge. I dismissed the appellant’s appeal and allowed the Public Prosecutor’s appeal against sentence. I enhanced the appellant’s sentence on the first charge to 15 months’ imprisonment (to be served concurrently with the sentence imposed in respect of the second charge). I now give my reasons.

[3] This appeal dealt with the misappropriation of two different properties: Indium metal and the proceeds of sale of a sputtering machine. Both of these properties were owned by WC Heraeus Gmbh (“WCHG”) or its subsidiaries. In 1995, the appellant was employed by Heraeus Precision Engineering (“HPE”), a wholly owned subsidiary of WCHG. He had been employed to start up the target division of HPE from scratch. Targets are specialised metallic plates used in the manufacture of magnetic disk drives. By all accounts, he was successful and he had developed it into a $40 million business. The appellant reported directly to Dr Ritzert, the Managing Director of WCHG.

[4] In 2000, HPE was sold to Jade Precision Engineering Pte Ltd (“Jade”). However, the target division was specifically hived off from the sale and it was transferred to Heraeus Pte Ltd (“HSL”), also a wholly owned subsidiary of WCHG. The appellant was transferred along with the division. He continued to report to Dr Ritzert. Calvin Lim, HSL’s managing director, did not play any part in supervising or directing him.

[5] On 1 May 2001, the appellant was appointed as a director of HSL. This arrangement continued until 4 July 2001 when the appellant’s services were terminated under a consolidation operation at HSL (a matter unrelated to the present charges).

[6] During his employment, the appellant was responsible for the sales and marketing of targets in the region. He had authorised the acquisition and payment of some 1050 kg of Indium metal. This Indium metal was used in the production of targets. The Indium metal was delivered to HSL prior to the appellant’s termination. Some of this Indium metal was subsequently found to be missing and the appellant was charged under the first charge with misappropriating 100 kg of the Indium metal.

[7] In addition, HPE had a machine called the sputtering machine which was used in the production of magnetic thin films using platinum targets. After its purchase, the sputtering machine began to give problems to HPE and they had sold this sputtering machine on to WCHG. Dr Ritzert of WCHG had then given the appellant instructions to dispose of the sputtering machine by either scrapping or selling it. The appellant had then sold the machine to one Yeo Lik Sheng (“Yeo”) who had then sold it to Glen Westwood, an employee of Oryx which was a competitor of HSL. This second sale was done without the knowledge of the appellant. The sale proceeds of US$35,000 were then sent to BGS Trading, a Canadian company. The sputtering machine and its sale proceeds formed the subject matter of the second charge.

[8] The prosecution’s case was relatively simple. With respect to the first charge, Ulrich Blankenstein (“Ulrich”), a manager at HSL, was informed by Amir Hamzah (“Amir”), a supervisor at HSL, pursuant to an audit, that 650 kg of Indium metal was missing in July 2001. Ulrich did not immediately investigate into the matter due to time and expense constraints. However, he had by December 2001 embarked on his own investigations and had learnt from Krishnamoorthy Ramesh (“Ramesh”), an accounts executive at HSL, that some of the Indium metal had been taken by the appellant.

[9] After further questioning, Ulrich found out that Ramesh had, along with Perabu (an office assistant at HSL), Amir, Kumar (a delivery driver at HSL) and Thanabal (a storeman at HSL) packed at least four boxes each containing exactly 25 kg of Indium metal at the end of June 2001. They had then loaded the boxes onto the company’s van. Ramesh had then driven the van and delivered the boxes of Indium metal to the appellant’s residence at Tulip Gardens Condominium the day after. The appellant had received the delivery personally.

[10] In addition, the prosecution adduced evidence of emails retrieved from the appellant’s computer showing that Spectromet Pte Ltd, a company owned by the appellant, had been selling Indium metal to one Echo Fang. Based on this evidence, the prosecution alleged that the appellant had misappropriated 100 kg of the Indium metal that had been entrusted to him.

[11] As for the second charge, Ulrich had, in early July 2001, heard that the sputtering machine had been sold to Oryx, their competitor. Not surprisingly, he was not pleased. He questioned the appellant who denied selling the sputtering machine and instead stated that the sputtering machine had been scrapped and no monies received. Ulrich was placated by this explanation as he felt that, if Oryx had obtained the sputtering machine from a scrap dealer, then there was nothing that he could do. It was only later that Ulrich discovered that the sputtering machine had not been scrapped but had been sold.

[13] The appellant was the only witness for the defence. In relation to the first charge, the appellant admitted that he had been entrusted with the Indium metal as a director of HSL. However, he denied misappropriating the Indium metal. In this respect, he admitted that Ramesh had delivered some boxes to his residence, but he claimed that these boxes contained books and not Indium metal. When he was then questioned as to the missing Indium metal, he accused Amir of having falsely accused him, noting in particular that Amir had, in an earlier case, been convicted of the theft of platinum targets Furthermore, Amir had, in that case, also falsely accused him of masterminding the theft. I am of course familiar with that case as Amir had appealed to this Honourable Court in Amir Hamzah bin Berang Kuty v Public Prosecutor [2003] 1 SLR 617 and I had dismissed his appeal against conviction. The appellant further explained that the Indium that Spectromet Pte Ltd had sold to Echo Fang had come from another company called Shanghai Shuanxie and was not HSL’s missing Indium.

[14] As for the second charge, the appellant admitted that he had been entrusted with the sale of the sputtering machine and that he had sold the machine to Yeo. He however claimed that he had not misappropriated the proceeds as the proceeds were ultimately paid to Malaysian Sheet Glass (“MSG”), as secret commissions, in return for their help in procuring for HSL customers from HSL’s competitors. He further alleged that this entire operation and payment had been done on the instructions of Dr Ritzert. He further explained that Dr Ritzert had instructed him to keep the entire matter secret and he had thus denied selling the sputtering machine to both Ulrich and the police.

[17] In this appeal, the appellant raises two contentions. The first is that the second charge is fundamentally flawed and the appellant should thus be entitled to an acquittal on the charge. Secondly, the appellant challenges the findings of fact that the trial judge made in coming to her decision to convict him on both charges.

[18] In gist, the appellant argued that the second charge was fundamentally flawed because the property alleged to be misappropriated was not the property entrusted to the appellant. This contention was based upon a clear interpretation of s 405 of the Penal Code (Cap 224). For convenience, I set out the provision below:

[19] I was of the opinion that the appellant’s contention had much force. In this regard, I was guided by my earlier decision in Carl Elias Moses v Public Prosecutor [1995] 3 SLR 748 in which I had been faced with a similar situation. In Carl Elias Moses, the charge had similarly been for criminal breach of trust under section 406 of the Penal Code and the charge there stated:

[21] As such, I was of the opinion that the second charge as it stood was fundamentally flawed as it envisioned the appellant being entrusted with the sputtering machine but misappropriating the proceeds of its sale. This was, as I had earlier stated, a fallacy as a property and its proceeds are not the same thing under s 405. As such, the appellant should never have been convicted on the second charge as the constituent elements of s 405 had not been met in the charge.

[22] At this stage, the prosecution invited me to exercise my discretion to amend the charge. It is clear that the High Court in its appellate jurisdiction has the power to amend the charge. LP Thean JA, delivering the judgment of the Court of Appeal in Garmaz s/o Pakhar & Anor v Public Prosecutor [1996] 1 SLR 401, authoritatively stated that: -

[25] Thus any amendment to the charge especially at the appellate stage must bear witness to this fundamental purpose of the charge. In particular, the appellate court must hesitate before amending the charge because the accused would not have the opportunity to recall any witnesses or to call new witnesses in his defence.

[32] Counsel for the appellant most vigorously sought to persuade me that the trial judge had erred in accepting the evidence of the prosecution witnesses and rejecting the testimony of the appellant. In relation to the first charge, he pointed to the inconsistencies in the amount of Indium alleged to have been packed and loaded that emerged from the testimonies of Ramesh, Perabu, Kumar and Amir. He also branded Amir’s testimony as being completely unreliable as he was a liar and a cheat as evidenced by his earlier conviction.

[33] In relation to the second charge, counsel for the appellant argued that the trial judge had erred in failing to accord sufficient weight to the evidence that showed that commissions had previously been paid to MSG and that Dr Ritzert had been aware of the practice of paying commissions.

[34] I was of the opinion that these arguments were without merit. It is trite law that where the trial judge had made findings of fact, based on the credibility of the witnesses whom he has had the opportunity of observing and assessing, the appellant court would generally defer to the trial judge. Thus, the appellate court, if it wishes to overrule the trial judge, must not only entertain doubts as to whether the decision is right but must be convinced that the decision is wrong: Public Prosecutor v Poh Oh Sim [1990] SLR 1047. As such, having examined the evidence for myself, I was of the view that the trial judge’s findings were neither against the weight of the evidence nor plainly wrong. It could not be said that the inferences that counsel for the appellant asked me to draw were irresistible.

[35] In particular, it cannot be sufficient for an appellant to point to inconsistencies in the evidence. It must first be recognised that absolute truth is beyond human perception, even by honest and disinterested witnesses and due allowance must be given to human fallibility in retention and recollection: Public Prosecutor v Kalpanath Singh [1995] 3 SLR 564. This is particularly pertinent in this appeal given the routine nature of the activity (packing and delivery of goods) coupled with the passage of time (almost one year). Secondly, it must be recognised that such inconsistencies need not necessarily detract from the value of the testimony of the witnesses. Where the inconsistencies are trivial, they should be ignored. If however, the inconsistencies relate to a material point which would seriously affect the value of the testimony of the witnesses, then it would be imperative upon the trial judge to weigh the evidence carefully before coming to a decision: Ng Kwee Leong v Public Prosecutor [1998] 3 SLR 942. In this appeal, the inconsistencies that the appellant relies on cannot be said to be material. These inconsistencies only differ as to the number of boxes alleged to have been packed and loaded. It cannot be said, by any stretch of imagination, that this would mean that the Indium metal had never been packed nor delivered.

[36] I would further add that it cannot be sufficient for an appellant to impeach the credibility of a witness by pointing to the fact that the witness had been found to have lied in an earlier case. While this is of course a strong factor pointing to the witness’ propensity to lie, each case must be looked at individually. It would not be correct to fetter the discretion of a trial judge by referring him to the decisions of other judges in this respect. Each trial judge has the responsibility of deciding on his own accord whether to believe the witness. This responsibility cannot be delegated. Hence where the trial judge has decided after observing the witness, who may have in his demeanour, manner or expression left an impression that cannot be reproduced in the grounds of decision or notes of evidence, to believe in the credibility of that witness, it cannot be correct, without more, for the appellate court to overturn his decision merely because that witness has lied in other cases.

[37] As such, I dismissed the appellant’s appeal against conviction and also convicted him on the amended second charge.

[38] The appellant had in his Notice of Appeal stated that he would be appealing both his conviction and the sentence imposed. He had however in his Petition of Appeal and written submissions failed to address this issue. In court, I took the opportunity to clarify the matter and confirmed that he was not appealing against the sentence imposed. As such, I turned to the Public Prosecutor’s appeal.

[39] The prosecution stated that they were appealing only against the sentence imposed in the first charge. The first charge involved an offence under s 409 of the Penal Code which reads:

[40] I would first note that s 409 deals with the aggravated form of criminal breach of trust as the situation envisioned involves the offender ex hypothesi standing in a fiduciary type relationship with the victim. Indeed, the policy behind the sentencing in such a scenario is not so much the rehabilitation, retribution or incapacitation vis-à-vis the offender but rather deterrence: especially as a warning to the other members of that profession from similarly betraying the trust placed in them.

[46] This was a difficult case containing a convoluted factual matrix. I was grateful for the assistance of both counsel. At the end of the day, I was satisfied that the trial judge had not erred in convicting the appellant. Therefore, I dismissed the appellant’s appeal after amending the second charge and allowed the prosecution’s appeal as to sentence on the first charge.