Public Prosecutor v Ewe Pang Kooi [2019] SGHC 72

Introduction

The accused, Ewe Pang Kooi (“Ewe”), claimed trial to a total of 50 charges under s 409 of the Penal Code (Cap 224, 22 charges under the 1985 Rev Ed; 28 charges under the 2008 Rev Ed) for criminal breach of trust (“CBT”) by an agent. Given that there was no amendment made to s 409 in the 2008 amendments to the Penal Code, I shall hereinafter refer to both the 1985 Rev Ed and 2008 Rev Ed of the Penal Code as “the Code”.

The charges faced by Ewe can be divided into three broad categories:

(a) Charges relating to Ewe’s role as liquidator for 21 companies (“the liquidator charges”);

(b) One charge relating to Ewe’s role as receiver for the assets of one Prem Ramchand Harjani (“Harjani”) (“the receiver charge”); and

(c) Charges relating to Ewe’s role as manager for the bank accounts of Technology Partners International (“TPI”) Singapore Branch (“the TPI charges”).

An example of one of the liquidator charges is set out as follows:

The receiver charge is set out as follows:

An example of one of the TPI charges is set out as follows:

At the end of the trial, I reserved judgment. Having considered the evidence before me and the submissions made by both parties, I find that the Prosecution has made out all 50 charges against Ewe beyond reasonable doubt. Accordingly, I convict Ewe of all 50 charges. I now state my reasons.

Undisputed facts

The Defence and the Prosecution have agreed to a comprehensive statement of agreed facts (“SOAF”), the material parts of which are set out below.

Facts relating to Ewe

Ewe is a 65 year-old male Malaysian citizen with Singapore permanent resident status. At all material times, he held professional qualifications as both a Certified Public Accountant (“CPA”) as well as an Approved Liquidator registered with the Accounting and Corporate Regulatory Authority. He was also the managing partner of Ewe Loke & Partners (“ELP”), a Certified Public Accounting firm, and a director of E & M Management Consultants Pte Ltd (“EM”), a firm in the business of providing tax and financial consulting and corporate restructuring services.

ELP was registered on 2 September 1998. From 2002 to July 2012, the partners of ELP were Ewe, one Loke Poh Keun (“Loke”), and one Mitsuru Morii (“Morii”). Another accountant, one Farooq Mann (“Farooq”), acted jointly with Ewe as liquidator for some of the companies. EM was registered on 20 July 1990 by Morii and Ewe. Subsequently, in early 1992, Loke was appointed as an additional director.

Facts relating to the role of a liquidator and receiver as set out by the parties

I reproduce the key portions of the parties’ SOAF on the role of a liquidator and receiver below.

A liquidator is an officer appointed when a company goes into winding up or liquidation. When a company is being wound up, the company’s business ceases to operate and its assets and affairs are handed over to a liquidator, whose powers, duties and functions are set out in s 272 of the Companies Act (Cap 50, 2006 Rev Ed) (“the CA”). The liquidator’s roles include the following:

(a) Investigate into the affairs and assets of the company, the conduct of its officers and the claims of creditors and third parties;

(b) Recover and realise the company’s assets in the most advantageous manner to the company;

(c) Adjudicate the claims of creditors and ensure an equitable distribution of the company’s assets in accordance with the provisions of the CA.

When a company goes into receivership, all assets of the company will be transferred into the control of a receiver. A receiver may be appointed by the court or a creditor, and he is entrusted with custody of the property of the company, including its tangible and intangible assets and rights. His responsibility is to liquidate all available assets and rights of the company, and ensure as much debt as possible is repaid to the creditors.

When the accused was appointed as a liquidator or receiver by the companies, he was authorised to have control over the bank accounts and assets of the companies, in order for him to make payments to creditors and to recover the companies’ assets.

Facts relating to the liquidator charges

Ewe was appointed as a liquidator for the following companies (“the 21 companies”). The sequence of the 21 companies as listed in the table below follow the exact sequence as they appear in the SOAF:

At the commencement of liquidation, Ewe transferred the assets of the 21 companies into various bank accounts for which he was an authorised signatory.

In summary, between February 2002 and July 2012, Ewe used the moneys from the bank accounts of the 21 companies to gamble, repay his gambling debts, or to reinstate the amounts that he had taken from other companies. The specific facts pertaining to each of the charges involving Ewe acting in his capacity as liquidator are set out in the Annex (see [A.1] to [A.133]). The order in which the facts pertaining to each of the charges are set out in the Annex follow the exact sequence as they appear in the SOAF.

Facts relating to the receiver charge

50th Charge: TRC 900029/2015

Ewe was appointed as the receiver to take control of the assets owned by Harjani. Ewe deposited the following cheques amounting to S$680,990.82 into ELP’s Maybank Clients’ account which represented the assets of Harjani that he received on behalf of Merril Lynch Pierce, Fenner & Smith Incorporated (“Merril Lynch”).

Between 13 November 2010 and 15 April 2011, Ewe issued the following cheques from ELP’s Maybank Clients’ account. These cheques amounted to a total of S$680,000, which were made payable to the stated payees:

The moneys which were deposited into ELP’s Maybank Clients’ account were subsequently withdrawn by Ewe. Based on the withdrawals from the said clients’ account:

(a) The sum of S$378,981.90 deposited on 11 November 2010 had been wholly withdrawn by the accused through the above cheques drawn from the clients’ account;

(b) From the sums of S$247,194.10 and S$53,814.82 deposited on 13 April 2011, S$300,000 was withdrawn by the accused through the above cheques drawn from the clients’ account.

The accused used these moneys which he had obtained to gamble, to repay gambling debts, or to reinstate the amounts he had removed from other companies’ accounts previously.

None of the above moneys were used to pay for any expenses relating to Harjani. As a result, Ewe misused $678,981.90 belonging to Harjani.

Facts relating to the TPI charges

In 2007, TPI engaged EM to manage its Singapore branch’s Standard Chartered bank account. Pursuant to this purpose, Ewe was appointed as one of four signatories of TPI Singapore Branch’s bank account.

The officers of TPI Singapore Branch were one Gerald Clark and one Arno Franz. They, together with Ewe and Morii, were the four signatories of TPI Singapore Branch’s bank account. Ewe was made one of the authorised signatories of TPI Singapore Branch’s bank account as part of EM’s engagement to provide bank account management services to TPI Singapore Branch. To make any authorised withdrawal from TPI Singapore Branch’s bank account, approval from Gerald Clark was required.

As two signatories were required for cheque withdrawals or fund transfers from the bank account, Ewe asked Morii to pre-sign blank cheques and transfer request forms. Morii did so as he trusted Ewe.

Using the pre-signed cheques, Ewe either issued cash cheques from TPI’s bank accounts or cheques to a bank account of ELP or EM.

In summary, between December 2007 and July 2012, Ewe used the moneys from TPI Singapore Branch’s Standard Chartered Bank account to gamble, to repay gambling debts, or to reinstate the amounts that he had removed from other companies’ accounts previously. The specific facts pertaining to each of the charges involving Ewe acting in his capacity as manager for the bank account of TPI Singapore Branch are set out in the Annex (see [A.134] to [A.151]). The order in which the facts pertaining to each of the charges are set out in the Annex follow the exact sequence as they appear in the SOAF.

In total, Ewe had misappropriated close to $41 million from various entities over the course of approximately 10 years.

The elements of CBT by an agent under s 409 of the Code

Section 409 of the Code states:

To make out the charges under s 409 of the Code, the Prosecution has to prove that the following elements are satisfied beyond reasonable doubt:

(a) Ewe was entrusted with dominion over the moneys;

(b) the entrustment was done by way of Ewe’s business as an agent;

(c) Ewe misappropriated the said moneys; and

(d) Ewe did so dishonestly.

The parties’ cases

Given that the elements of entrustment with dominion and dishonest misappropriation are not disputed by the Defence, parties understandably focus their submissions on the element of whether Ewe was entrusted with the moneys in the way of his business as an agent.

Prosecution’s case

The Prosecution submits that in order to establish that Ewe was entrusted with the moneys in the way of his business as an agent, it must be shown that:

(a) First, Ewe was a “professional agent”; and

(b) Second, the moneys were entrusted to him “in the way of his business” as such agent.

In relation to the first requirement, the Prosecution argues that in his capacity as liquidator for the 21 companies, receiver for Harjani on behalf of Merril Lynch, and manager for the bank accounts of TPI Singapore Branch, Ewe was acting as the agent of the 21 companies, Merril Lynch and TPI Singapore Branch respectively. This is on the basis that he was authorised by these entities to act on their behalf, and that his actions could bind these entities vis-à-vis third parties. The Prosecution further submits that Ewe was a professional agent given that he was offering his agency services to the community at large, and that he made a living from providing these agency services.

In relation to the second requirement, the Prosecution argues that Ewe was entrusted with dominion over the moneys in the course of the commercial activities that he had to undertake as liquidator, receiver and manager for the bank accounts of TPI Branch Singapore. The Prosecution further states that the entrustment of dominion over the moneys was an integral and necessary element of the jobs that Ewe had been appointed to perform.

Defence’s case

First, the Defence argues that the business of a professional agent is similar to that of an insurance or property agent. Therefore, given that Ewe’s principal business was in his practice as a CPA, he was never in the business of a professional agent, nor did he hold himself out as providing professional agency services.

Second, the Defence argues that it was ELP, and not Ewe personally, that was engaged to be the liquidator for the 21 companies and receiver of Harjani’s assets on behalf of Merrill Lynch. Similarly, it was EM, and not Ewe personally, that was appointed as manager of the bank accounts for TPI Singapore Branch. Ewe had only acted in his capacity as agent for ELP and EM, and had only performed work in the course of the business of ELP and EM. Therefore, Ewe was not even an agent of the 21 companies, Merrill Lynch, or TPI, let alone a professional agent.

My decision

Given the undisputed facts before me, and the manner in which Ewe was entrusted with dominion over the moneys in the course of his various appointments as liquidator, receiver, and manager of the bank accounts for TPI Singapore branch, I am satisfied that all 50 charges against Ewe have been made out beyond reasonable doubt.

At the outset, I note that Ewe does not deny that when he was appointed as liquidator of the 21 companies and receiver for the assets of Harjani, he had been entrusted with the moneys stated in all the charges save for the TPI charges. With regard to the TPI charges, upon closer scrutiny of the Defence’s Closing Submissions, it appears that the Defence does not actually dispute that Ewe had been entrusted with the moneys belonging to TPI, only that he was entrusted with the moneys in his capacity as the “certified public accountant” and “agent” of TPI.

Further, Ewe does not deny that, having been entrusted with these moneys, he had dishonestly misappropriated the said moneys.

Therefore, the Defence does not dispute that elements (a), (c) and (d) of the offence under s 409 of the Code (as set out at [29] above) have been made out. For completeness, I will briefly address these elements, before moving to consider the primary issue of whether Ewe had been entrusted with the said moneys in the way of his business as an agent.

Whether Ewe was entrusted with dominion over the moneys

It is clear from the SOAF that Ewe was entrusted with dominion over the moneys in his various roles as liquidator for the 21 companies, receiver for Harjani, and manager for the bank account of TPI Singapore Branch. A general degree of control over the moneys is sufficient to establish dominion and there is no need to prove sole or exclusive dominion: see Hon Chi Wan Colman v Public Prosecutor [2002] 2 SLR(R) 821 at [50] and [54]. Having been appointed liquidator for the 21 companies, Ewe was able to transfer the assets of these 21 companies upon the commencement of liquidation into bank accounts for which he was an authorised signatory. Similarly, having been appointed receiver for the assets of Harjani, Ewe was able to transfer Harjani’s assets into a bank account for which he was an authorised signatory. Upon being engaged to manage the bank account of TPI Singapore Branch, Ewe was made an authorised signatory of the bank account. Even though two signatories were required to make any transfers from the bank account, Ewe stated that he had asked Morii to pre-sign cheques and transfer forms, which therefore allowed Ewe to unilaterally make transfers. Ewe therefore had dominion over the moneys in TPI Singapore Branch’s bank account.

Whether Ewe had dishonestly misappropriated the moneys which he was entrusted with dominion over

It is also clear from the SOAF that Ewe had dishonestly misappropriated the moneys which he was entrusted with. The SOAF repeatedly states that Ewe had used the moneys that he had been entrusted with to gamble, to repay his own gambling debts, or to reinstate the amounts that he had removed from other companies’ accounts previously. It is also stated in the SOAF that none of the amounts which were taken from each company were used to pay the expenses of that particular company.

Whether Ewe was entrusted with the moneys in the way of his business as a professional agent

The sole element of the offence that is in dispute is whether Ewe had been entrusted with the moneys which he dishonestly misappropriated in the way of his business as an agent within the meaning of s 409 of the Code. In my view, the manner in which Ewe was entrusted with the moneys in his various roles as liquidator, receiver and manager for the bank accounts of TPI Singapore Branch, represents the quintessential case of an individual who has been entrusted with moneys in the way of his business as a professional agent.

The scope and definition of the phrase “in the way of his business as … an agent” in s 409 of the Code was recently considered by the Court of Appeal in Public Prosecutor v Lam Leng Hung and others [2018] 1 SLR 659 (“Lam Leng Hung”). The Court of Appeal concluded at [286] that both the text and context of s 409 indicate that “in the way of his business as a banker, a merchant, a factor, a broker, an attorney or an agent” only encompasses persons who are entrusted with property or dominion over it in the course of the commercial activities of their trusted trades or professions – including those who are in the business of agency (ie, professional agents). The Court of Appeal further defined a professional agent as “a person who offers, as his trade, profession or business, agency services to interested clients in return for remuneration” (at [126]) or “one who professes to offer his agency services to the community at large and from which he makes his living” (at [285]). Therefore, in order to make out this element of the offence under s 409 of the Code, the Prosecution would have to prove (a) that Ewe’s various roles as liquidator, receiver, and manager for the bank account of TPI Singapore Branch were those of a “professional agent”, and (b) that he had been entrusted with the moneys in the course of his business as a professional agent.

Whether Ewe’s various roles can be regarded as those of a professional agent

In my view, Ewe’s roles as liquidator for the 21 companies, receiver for the assets of Harjani, and manager of the bank accounts of TPI Singapore Branch all fall squarely within the meaning of a professional agent as defined in Lam Leng Hung.

Based on the definition provided by the Court of Appeal, there appear to be three requirements that have to be fulfilled for an individual to be regarded as a professional agent:

(a) The individual offers agency services;

(b) The individual offers the said services to the community at large; and

(c) The individual receives remuneration for the said services.

In this regard, I note the Defence’s argument that an “agent” within the meaning of s 409 of the Code only refers to agents that are similar to insurance agents or property agents. Therefore, given that Ewe was at all material times practicing as a CPA, he did not practice as a professional agent nor did he make himself out to be one (see above at [34]). With respect, this argument is untenable. The definition of a “professional agent” as stated by the Court of Appeal in Lam Leng Hung is not restricted only to agents that are similar to insurance agents or property agents. In my view, as long as the three requirements set out at [45] above are met, an individual would be regarded as a professional agent even if the other aspects of his duties are dissimilar to that of an insurance agent or property agent. Further, while it is true that Ewe had been practicing as a CPA at all material times, the Defence neglects to mention that Ewe had also been practicing as a liquidator, receiver, and manager for the bank accounts of TPI. Indeed, it is the Prosecution’s case that Ewe was operating as a professional agent in his various roles as liquidator, receiver, and manager for the bank account of TPI, which I now turn to consider.

(1) Whether Ewe had provided agency services

In his roles as liquidator, receiver, and manager for the bank account, Ewe had provided the 21 companies, Merrill Lynch, and TPI Singapore Branch respectively with agency services. In Ong Han Ling and another v American International Assurance Co Ltd and others [2018] 5 SLR 549, it was stated at [214] that “[t]he classic definition of an agent is one authorised to create contractual relations with third parties on behalf of the principal.” Similarly, in Then Khek Koon and another v Arjun Permanand Samtani and another and other suits [2014] 1 SLR 245, the court stated at [113] that “the irreducible core of any principal/agent relationship is a principal who consensually confers actual, implied or ostensible authority upon the agent and an agent who has the ability, by acting within the scope of his authority, unilaterally to engage the principal’s civil liability.”

As liquidator of the 21 companies, Ewe was conferred with actual authority to create contractual relations with third parties on behalf of these companies, thereby making him an agent of these companies. It is settled law that once a company is in liquidation, the board of directors is effectively functus officio and the power to run the company vests with the liquidator: see Walter Woon on Company Law (Tan Cheng Han gen ed) (Sweet & Maxwell, Revised 3rd Ed, 2009) at para 17.134. Indeed, as stated in the SOAF, Ewe’s main responsibilities as a liquidator were to investigate into the affairs and assets of the companies, recover and realise the companies’ assets in the most advantageous manner, and ensure an equitable distribution of the companies’ assets to the creditors. In order to carry out his function as liquidator, Ewe would, inter alia, have to make contracts with would-be purchasers of the companies’ assets, commence suits on behalf of the companies to recover payments or transfers which were wrongfully made, and make and receive payments on behalf of the companies. Indeed, Ewe admitted during cross-examination that upon the commencement of liquidation, control of the company’s assets would rest solely in the hands of the liquidator. These actions would invariably bind the companies vis-à-vis third parties.

Similarly, as receiver for the assets of Harjani, Ewe was conferred with actual authority by Merrill Lynch to realise Harjani’s assets for its benefit. This therefore made him an agent of Merrill Lynch. Ewe explained that when a creditor bank (such as Merrill Lynch) had a debenture over an entity which allowed it to appoint a receiver and manager in the event of a default, and when that entity subsequently defaulted, the creditor bank would then appoint him as a receiver. Ewe would then be tasked to take control of, consolidate, and liquidate the assets of the entity and account for it to the creditor bank. In particular, as receiver for Harjani’s assets, Ewe had to liquidate shares and property belonging to Harjani for and on behalf of Merrill Lynch. In order to liquidate these assets, it can reasonably be expected that Ewe would have had to enter into sale and purchase contracts which would have bound Merrill Lynch vis-à-vis third parties, thereby making Ewe an agent of Merrill Lynch.

Finally, as the manager for TPI Singapore Branch’s bank account, Ewe was also an agent for TPI. As part of the bank account management services that EM provided to TPI, EM would have to monitor TPI’s bank account and inform Gerald Clark when TPI received money from its customers, use the moneys in TPI’s bank account to pay the salaries of TPI Singapore Branch’s employees, and remit the moneys in the bank account to the United States once every three months. It is stated in the SOAF that two signatories were required for cheque withdrawals and/or fund transfers from the TPI’s bank account. However, Ewe explained that he had asked Morii to pre-sign blank cheques and transfer request forms, which Morii did as he trusted Ewe. Hence, Ewe effectively had control over TPI’s bank account and could make cheque withdrawals and fund transfers unilaterally. Any payments or transfers that Ewe made out of TPI’s bank account would therefore bind TPI vis-à-vis the bank, making Ewe an agent of TPI.

At this juncture, I note that the Defence has argued that Ewe was merely an agent for ELP and EM, and not an agent for the 21 companies, Harjani, or TPI (see above at [35]). This was on the basis that it was ELP that was appointed to provide the liquidation and receivership services, and EM that was appointed to provide the bank account management services. With respect, I disagree. First, in relation to the Defence’s contentions that it was ELP that was appointed as liquidator/receiver, the documentary evidence shows that on the contrary, it was Ewe who was personally appointed as liquidator/receiver. The Defence itself cites the court order for the appointment of liquidators for the winding up of Grandlink Group Pte Ltd, which states:

Similarly, the court order for the appointment of the receiver over Harjani’s assets states:

Indeed, it was Ewe himself, and not ELP, who had control over the assets of the various entities and who could bind these entities vis-à-vis third parties.

Second, in relation to the Defence’s contention that it was EM who was the agent of TPI, it is also clear that it was Ewe himself who was appointed as agent of TPI by virtue of him being made a signatory of TPI’s bank account. The Standard Chartered bank nomination form states that Ewe was appointed as a signatory by TPI. It was Ewe himself (using the cheques and transfer forms which had been pre-signed by Morii), and not EM, who could make the payments and transfers on behalf of TPI.

Ultimately, I agree with the Prosecution that to allow the Defence’s argument to succeed would lead to an absurd conclusion, given that all natural persons accused of CBT under s 409 of the Code would be able to escape criminal liability simply by hiding behind the corporate shield. Such an argument also would not sit well with the other trades or professions which are listed in s 409, ie, a banker, a merchant, a factor, a broker, an attorney. For example, a banker would ordinarily operate under the auspices of a bank. Clients of the bank would ordinarily make contracts with the bank and not with the banker personally. To find that the interposition of a corporate entity, ie, the bank, would absolve the banker of liability would effectively mean that no employee of the bank would ever be found guilty of an offence under s 409.

To conclude on this point, I am of the view that Ewe had been providing agency services through his various roles as liquidator, receiver, and manager for TPI Singapore Branch’s bank account. I now turn to consider whether he had offered these agency services to the community at large, and whether he received remuneration for these services.

(2) Whether Ewe had offered his services to the community at large for remuneration

It is apparent to me that Ewe had offered his services as a liquidator to the community at large for three reasons:

(a) First, Ewe stated under cross-examination that ELP got its insolvency clients through both referrals and walk-ins, which suggests that its liquidation services were offered to the public. In this regard, I note that Ewe had tried to draw a distinction between customers that ELP received via referrals and walk-in customers. Ewe explained that because ELP was not a big-name firm, it would rely mainly on referrals from Ewe’s social contacts for clients. Taking Ewe’s case at its highest, this would mean that Ewe’s services were essentially being offered to the community at large via Ewe’s social contacts. Therefore, I found it immaterial whether Ewe received his clients from referrals or walk-ins. In any event, Ewe conceded that ELP would also accept walk-in clients, so long as they passed certain checks as to (a) their ability to pay the liquidator’s fees; and (b) the absence of money-laundering or other illegal activities.

(b) Second, Ewe stated that for court-ordered liquidations and creditors’ liquidations which require an approved liquidator, companies in need of such services would approach ELP specifically because there were individuals in the firm, such as Ewe, who were qualified as approved liquidators.

(c) Third, Ewe admitted that he had offered his services as liquidator through ELP, and that he was able to act as liquidator in all three types of liquidations ie, members’ voluntary liquidations, court ordered liquidations, and creditors’ liquidations. Indeed, Ewe had acted as liquidator for 68 companies from 2007 to 2012. ELP’s consolidated profit and loss accounts for the years 2007 to 2011 also show that ELP had received income from providing “Insolvency” services for each of the years.

As regards remuneration, Ewe admitted under cross-examination to receiving fees for the liquidation services that he provided.

Similarly, Ewe stated that his work as receiver was another one of the services that were offered under ELP. Specifically, in relation to the receivership of Harjani’s assets on behalf of Merrill Lynch, Ewe stated that he was first approached by M/s Drew & Napier LLC (“Drew & Napier”). When asked about how Drew & Napier had found out that ELP provided receivership services, Ewe stated that it could be because ELP was an approved liquidator and they would have the licence to do receiverships. Ewe further stated that Drew & Napier had approached ELP for a fee quotation, which ELP duly provided. In my view, by holding itself out to be an approved liquidator which had the license to perform insolvency related services such as liquidation and receivership, ELP, and Ewe himself, were offering these services to the community at large. The fact that a potential client like Drew & Napier could ask ELP for a fee quotation serves to buttress this finding.

As regards remuneration, Ewe also admitted to receiving fees for the receivership services that he provided.

Finally, in relation to the bank account management services which were provided to TPI, I am also of the view that these services were provided to the community at large, notwithstanding that TPI was the only entity that EM had actually provided this service to. Ewe stated that the assignment to manage the bank account of TPI’s Singapore Branch was referred to EM through its membership in an international group of independent accountants known as The International Accounting Group (“TIAG”). Ewe explained that the group of companies which included ELP and EM were the only members of TIAG in Singapore, therefore any jobs to be done in Singapore would be referred to them. Ewe further stated that although TPI was the only company that EM provided this service to, he would also have been willing to provide this service to other clients if the referring party was one that he trusted. In my view, notwithstanding that Ewe imposed certain conditions which had to be met before he would accept an assignment, the fact remained that he was offering these bank account management services to the community at large via his membership in TIAG. Ewe even admitted that if a referral for such services came from a fellow member firm of TIAG, he would not be able to refuse the referral because there was an understanding that the member firms would assist each other.

As regards remuneration, the documentary evidence shows that EM had charged TPI an annual fee of $3,600 for “professional services rendered in connection with [EM’s] management of the bank account of [TPI] on [TPI’s] behalf”. It is undisputed that Ewe would personally receive a cut of the fees that were charged by EM.

To summarise my findings, I am of the view that Ewe’s services as liquidator, receiver, and manager for bank accounts were offered to the community at large, and that he was remunerated for performing these services.

Given that all three requirements as set out at [45] above have been made out, it follows that Ewe had been acting as a professional agent. Further, there can be no dispute that Ewe had been entrusted with the moneys in the course of providing these professional agency services. Indeed, it was central to Ewe’s roles as liquidator, receiver, and bank account manager for him to be entrusted with dominion over the moneys. Therefore, the final element of the offence under s 409 ie, that Ewe was entrusted with dominion over the moneys in the way of his business as an agent, has been made out.

Conclusion

For the aforementioned reasons, I am satisfied that the 50 charges against Ewe have been made out beyond reasonable doubt. Accordingly, I would convict Ewe of all 50 charges.

The provision for enhanced punishment in cases where CBT is committed by a professional agent in the course of his business is necessary in safeguarding the integrity of the commercial process. In Public Prosecutor v Tan Cheng Yew [2013] 1 SLR 1095, Lee Seiu Kin J stated at [103] that

The above passage was cited with approval by the Court of Appeal in Lam Leng Hung at [463].

The reality of modern society is such that one cannot be expected to undertake all tasks on his or her own. Therefore, there is a wide reliance by the public on professional agents for various facets of commercial and domestic activity. It is inherent in the duties of a professional agent to be entrusted with the property of others. Therefore, it is only where the public has utmost faith in the integrity of these professional agents that the system can function and flourish. I am of the view that the financial services which Ewe had provided all fall squarely within the exact type of mischief that s 409 was intended to curtail. If the public cannot trust its liquidators and receivers to maintain high ethical and professional standards, the entire insolvency process would undoubtedly fall apart.

I shall now hear parties’ submissions on sentence.

Annex

Facts pertaining to charges involving Ewe acting in his capacity as liquidator

25th Charge: TRC 900027/2015

26th Charge: TRC900025/2015

24th Charge: TRC 900026/2015

23rd Charge: TRC 900028/2015

27th Charge: TRC 900050/2015

28th Charge: TRC 900051/2015

29th Charge: TRC 900052/2015

30th Charge: TRC 900046/2015

31st Charge: TRC 900047/2015

1st Charge: TRC 900001/2015

2nd Charge: TRC 900004/2015

32nd Charge: TRC 900048/2015

3rd Charge: TRC 900005/2015

4th Charge: TRC 900006/2015

33rd Charge: TRC 900049/2015

5th Charge: TRC 900007/2015

6th Charge: TRC 900008/2015

34th Charge: TRC 900042/2015

7th Charge: TRC 900010/2015

8th Charge: TRC 900009/2015

35th Charge: TRC 900043/2015

9th Charge: TRC 900012/2015

10th Charge: TRC 900011/2015

38th Charge: 900041/2015

39th Charge: TRC 900040/2015

11th Charge: TRC 900014/2015

12th Charge: TRC 900013/2015

40th Charge: TRC 900039/2015

13th Charge: TRC 900016/2015

41st Charge: TRC 900038/2015

15th Charge: TRC 900018/2015

16th Charge: TRC 900017/2015

42nd Charge: TRC 900037/2015

17th Charge: TRC 900020/2015

18th Charge: TRC 900019/2015

19th Charge: TRC 900022/2015

20th Charge: TRC 900021/2015

21st Charge: TRC 900024/2015

36th Charge: TRC 900044/2015

37th Charge: TRC 900045/2015

43rd Charge: TRC 900036/2015

44th Charge: TRC 900035/2015

Facts pertaining to charges involving Ewe acting in his capacity as manager for TPI’s bank account

22nd Charge: TRC 900023/2015

45th Charge: TRC 900034/2015

46th Charge: TRC 900033/2015

Between 4 March 2009 and 4 November 2009, Ewe issued the following cheques from TPI’s Standard Chartered Bank account. These cheques amounted to a total of S$1,238,000.00, which were made payable to the stated payees:

47th Charge: TRC 900032/2015

48th Charge: TRC 900031/2015

49th Charge: TRC 900030/2015