Skip to content
laws.sgby aturio
Grounds publishedDecided 30 Nov 2012
Contents

High Court

Public Prosecutor v Tan Cheng Yew and another appeal

Feedback & support

[2012] SGHC 241Case no. Magistrate's Appeals No 97 of 2011/01 and 97 of 2011/02

What happened, in plain English

There is no plain-English summary of this judgment yet.

Ask about this judgment

Laws this judgment relies on

Grounds of decision

Official text from eLitigation

  1. Lee Seiu Kin J:

  2. [1] Tan Cheng Yew (“TCY”) was charged with six charges under the Penal Code (Cap 224, 1985 Rev Ed) (the “Penal Code”). He faced three charges of criminal breach of trust (“CBT”) under s 409 of the Penal Code (hereafter denoted as either “s 409” or “our s 409”, as may be appropriate to the context) and three charges of cheating under s 420 of the Penal Code (“s 420”). Two of the charges under s 409 and s 420 were stood down. TCY claimed trial to the following charges (“the four charges”):

  3. (a) Between 30 July 2001 and September 2001, in Singapore, TCY did commit CBT in the way of his business as an attorney, in that he, being at the material time a practising advocate and solicitor and in such capacity was entrusted with dominion over property, namely a sum of S$1,500,000 belonging to one Tan Kwee Khoon (“Tommy Tan”), Tan Kwee Boon, Tan Kwee Beng, Tan Kwee Lian and Soh Keng Ngoh (collectively “the Tan Family”), did convert to his own use the said sum of S$1,500,000, by causing it to be pledged as a security for a personal loan facility from DBS Bank to him and TCY had thereby committed an offence punishable under s 409 (“the First Charge”).

  4. (b) Between January and February 2002, in Singapore, TCY did cheat one Tommy Tan by deceiving him into believing that it was a legal requirement in loan agreements for the borrowers to repay the lender in the first year of the loan, which representation TCY knew to be false, and he thereby dishonestly induced Tommy Tan into delivering a sum of S$480,000 to him, which act he would not have done if he were not so deceived, and TCY had thereby committed an offence punishable under s 420 (“the Second Charge”).

  5. (c) Between March 2001 and June 2001, TCY did commit criminal breach of trust in the way of his business as an attorney, in that he, being at the material time a practising advocate and solicitor and in such capacity was entrusted with dominion over property, namely a sum of S$1,940,724.97 belonging to the Tan Family, did convert to his own use the said sum of S$1,940,724.97, by retaining it in his Standard Chartered Bank (SCB) and Post Office Savings Bank (POSB) accounts and subsequently using them for his own purposes, and TCY had thereby committed an offence punishable under s 409 (“the Third Charge”).

  6. (d) Sometime in May 2002, TCY did cheat one Tommy Tan, by deceiving him into believing that he would invest the sum of S$900,000.00 with an Australian bank on behalf of the Tan Family and that he would by reason of the said investment be in a better position to negotiate a better interest rate with the Australian bank, which representations TCY knew to be false, and he thereby dishonestly induced Tommy Tan into delivering a sum of S$900,000.00 to him, which act he would not have done if he were not so deceived, and TCY had thereby committed an offence punishable under s 420 (“the Fourth Charge”).

  7. The First Charge and Third Charge will be collectively referred to as the “s 409 charges” or the “amended s 409 charges” as appropriate, and the Second Charge and the Fourth Charge will be collectively referred to as the “s 420 charges”.

  8. [2] At the end of the trial, the trial judge (“the DJ”) convicted TCY on all four charges (see Public Prosecutor v Tan Cheng Yew [2011] SGDC 268 (“the Judgment”)). She then imposed the following sentences:

  9. The sentences were backdated to 22 October 2009, ie, the date of TCY’s extradition to Singapore (see below at [13]).

  10. [3] Magistrate’s Appeal No 97 of 2011/02 (“MA 97/2011/02”) is TCY’s appeal against his conviction on each of the four charges. Magistrate’s Appeal No 97 of 2011/01 (“MA 97/2011/01”) is the prosecution’s appeal against the sentences imposed on each of the four charges.

  11. Facts

  12. [4] The following facts are undisputed.

  13. Background to the charges

  14. [5] Tommy Tan was the first witness for the prosecution in the trial below. His father, one Tan Siew Seng, passed away in 1999. At the trial below, Tommy Tan was described by witnesses as immature, naive, inexperienced, trusting, and “not a details person” (Judgment at [163]). Tommy Tan was around 29 years of age at the material time.

  15. [6] The four charges against TCY arose from two main transactions following the death of Tan Siew Seng:

  16. (a) The loan to the Central Christian Church (“CCC”), of which Tommy Tan and his family (“the Tan Family”) were members, so as to enable CCC to buy land to build a church.

  17. (b) The sale of some shares in Poh Lian Holdings Limited (“Poh Lian”).

  18. [7] Renganathan Shankar (“Shankar”), an advocate and solicitor practising in the firm of Shankar, Nandwani & Partners at the material time, acted for CCC. Shankar also acted for Tommy Tan and his mother in Tan Siew Seng’s estate matter. Shankar introduced TCY to Tommy Tan for the purpose of obtaining independent legal advice in the matter of the loan to CCC.

  19. [8] TCY was an advocate and solicitor in Singapore, practising in the firm of Tan Cheng Yew & Partners. In 2001, Tan Cheng Yew & Partners merged with Tan JinHwee, Eunice & Lim ChooEng (“Tan & Lim”). Following TCY’s introduction to Tommy Tan, TCY became the Tan Family’s lawyer and dealt with all their legal matters.

  20. [9] At the trial below, the prosecution tendered an agreed statement of facts which provided as follows:

  21. (a) In respect of the First Charge, Shankar, Nandwani & Partners, acting for CCC, had forwarded a cheque for S$1.5m to TCY on 30 July 2001. TCY deposited this cheque into his Development Bank of Singapore (“DBS”) fixed deposit account on 7 August 2001.

  22. (b) In respect of the Second Charge, Tommy Tan had issued a DBS cheque dated 5 February 2002 for the sum of S$480,000 to TCY. TCY deposited it into his POSB account.

  23. (c) In respect of the Third Charge, Tommy Tan had, on behalf of the Tan Family, entered into a memorandum dated 24 December 2000 (“Memorandum 1”) with Tan Cheng Yew & Partners, appointing TCY to negotiate the sale of 24 million shares in Poh Lian (the “Poh Lian shares”). Pursuant to Memorandum 1, the Poh Lian shares were transferred to TCY. TCY subsequently sold nine million of the Poh Lian shares and received a sum of S$1,940,724.97 from the sale. He deposited S$1,646,663.46 into his SCB account and the balance of S$294,061.51 into his POSB account.

  24. (d) In respect of the Fourth Charge, TCY signed a deed of trust on 25 May 2002 (“the Deed of Trust”) wherein he acknowledged that he was holding A$3m (comprising S$1,940,724.97 being the proceeds of the sale of the Poh Lian shares (see above at [9(c)]) and a sum of S$900,000) on behalf of the Tan Family for the purpose of investing the moneys with an Australian bank. Tommy Tan then issued a DBS bank cheque for S$900,000 to TCY who deposited it into his fixed deposit account. This S$900,000 forms the subject-matter of the Fourth Charge.

  25. Background to the extradition

  26. [10] TCY left Singapore in 2003 and was untraced for some six years. On 2 June 2009, he was arrested at Munich Airport in Germany, pursuant to a warrant of arrest (WA-005536-03) issued by a Magistrate in Singapore on 28 November 2006 (the “Arrest Warrant”). The Arrest Warrant provided that TCY faced five charges: one charge under s 409 and four charges under s 420.

  27. [11] As TCY resisted extradition, extradition proceedings were commenced against him in Munich pursuant to a request for extradition made by Mr K Shanmugam, the Minister for Law, dated 6 July 2009 (the “Requisition”). Unlike the Arrest Warrant, the Requisition provided that TCY was charged with six charges: four charges under s 409 and two charges under s 420.

  28. [12] On 21 August 2009, the Federal Constitutional Court of Germany allowed the extradition of TCY to Singapore (the “Extradition Order”). TCY returned to Singapore on 22 October 2009.

  29. The proceedings below

  30. Preliminary objections based on extradition-related issues

  31. [13] Prior to the commencement of the trial, the defence raised a preliminary objection based on extradition-related issues. Counsel for TCY, Mr Michael Khoo (“Mr Khoo”) first argued that TCY had been extradited on the basis of the Arrest Warrant and not the Requisition. For the sake of clarity, the differences between the Arrest Warrant and the Requisition are presented in table form below:

  32. According to Mr Khoo, the prosecution was not entitled to prosecute TCY on six charges instead of only the five charges listed in the Arrest Warrant.

  33. [14] Mr Khoo’s second objection was based on the speciality rule under s 17 of the Extradition Act (Cap 103, 2000 Rev Ed) (the “Extradition Act”). He contended that the increase in the number of charges and the amendment of the charges breached the speciality rule.

  34. [15] The prosecution’s case was that the extradition had taken place pursuant to the Requisition and not the Arrest Warrant. The prosecution then sought further amendments of the four charges that they were proceeding on and contended that these amendments should be allowed as they were in accordance with s 17 of the Extradition Act (hereafter referred to as “s 17” or “our s 17”, as appropriate to the context).

  35. [16] The DJ found that the preliminary objections were misconceived as the appropriate forum to raise such objections would have been the German Courts. In the light of the provisions for extradition between Singapore and Germany (the “Singapore-Germany Extradition Treaty”), the DJ found that it was not proper for her to go behind the Extradition Order (Judgment at [7]). The DJ then held that the amendments made to the charges arose “broadly out of the same facts” on which the Requisition was made and thus satisfied s 17 (Judgment at [8]–[9]). Further, no prejudice was occasioned to TCY by the amendments to the charges and the speciality rule was not breached (Judgment at [9]).

  36. The submission of “no case to answer”

  37. [17] At the close of the case for the prosecution, Mr Khoo made a submission of “no case to answer” on the ground that the prosecution had failed to establish a prima facie case against TCY on each of the four charges. Mr Khoo argued that the s 409 charges were fatally flawed as the term “attorney” in s 409 meant a person who was “delegated to do something in the absence of the appointer” and thus did not include an advocate and solicitor (see the Judgment at [48]). Even if “attorney” did include an advocate and solicitor, Mr Khoo submitted that the moneys in the s 409 charges were entrusted to TCY in his personal capacity and not in his capacity as an advocate and solicitor. In respect of the First Charge, Mr Khoo further submitted that TCY could not be said to have committed CBT against the Tan Family as the S$1.5m no longer belonged to the Tan Family at the time it was entrusted to TCY, given that it had been loaned to CCC. Moreover, Mr Khoo stressed that the cheque for the S$1.5m from Shankar, Nandwani & Partners was made out to TCY and not Tan Cheng Yew & Partners, ie, the cheque was made to TCY in his personal capacity and not in his capacity as an advocate or solicitor. As regards the Second Charge, Mr Khoo contended that Tommy Tan’s evidence was inherently incredible. As regards the Fourth Charge, Mr Khoo submitted that the prosecution had changed the character and nature of the offence committed by TCY by amending it from a charge under s 409 to a charge under s 420.

  38. [18] Against this, the prosecution argued that “attorney” in s 409 covered an advocate and solicitor. The prosecution further submitted that, on the evidence, there was entrustment to TCY of the sums referred to in the s 409 charges in the way of his business as an advocate and solicitor. The prosecution also referred to TCY’s admission that he had converted the misappropriated sums to his own use by using them to settle his gambling debts. With regard to the s 420 charges, the prosecution submitted that there was evidence that TCY had deceived Tommy Tan to give him the sums of S$480,000 and S$900,000 as indicated in the respective charges. The prosecution thus urged the court to call on TCY to enter his defence to all four charges.

  39. Decision below

  40. [19] The DJ agreed with the prosecution that “attorney” in s 409 included an advocate and solicitor (Judgment at [55]). She then noted that while TCY disputed the circumstances under which the moneys mentioned in the four charges had been given to him, he had not disputed that the moneys were given to him (Judgment at [57]). There was thus nothing inherently incredible about the evidence presented by the prosecution, and under the test in Haw Tua Tau and others v Public Prosecutor [1981-1982] SLR(R) 133, the DJ found that there was a case for the defence to answer at the close of the prosecution’s case and called on TCY to enter his defence (Judgment at [57] and [60]).

  41. [20] After the DJ had heard TCY’s defence, she gave her judgment. She noted that TCY had admitted to receiving the respective sums that formed the basis of the four charges, and that he had not made any restitution to Tommy Tan nor any member of the Tan Family (Judgment at [94]).

  42. [21] On the First Charge, the DJ noted that the parties had agreed that the Tan Family had decided to give an interest-free loan of S$1.5m to CCC and that this sum would be held by TCY as a trustee. TCY had admitted to using the S$1.5m for his own purposes. The following findings were made in support of the holding that TCY was guilty on the First Charge:

  43. (a) the S$1.5m belonged to the Tan Family and not CCC at the material time (Judgment at [100]);

  44. (b) TCY had held the S$1.5m on trust in his capacity as an advocate and solicitor and not in his personal capacity (Judgment at [112]);

  45. (c) Tommy Tan and Shankar did not consent or acquiesce to TCY pledging the S$1.5m as security for his personal credit facility with DBS (Judgment at [122]);

  46. (d) TCY had converted the S$1.5m to his own use by pledging the money as security for his personal credit facility with DBS (Judgment at [123]); and

  47. (e) the purported document of authorisation on which TCY relied to prove that Tommy Tan had indemnified him and authorised him to pledge the S$1.5m as collateral for a credit facility then to use the moneys in the credit facility to buy equity linked notes with Venture Corporation (“Venture linked notes”) was of dubious authenticity and did not advance any defence for TCY (Judgment at [133]).

  48. [22] On the Second Charge, the DJ noted that Tommy Tan had, on 5 February 2002, given a DBS cheque in the sum of S$480,000 to TCY. TCY deposited the cheque into his POSB account on 6 February 2002. The DJ made the following findings in support of her holding that TCY was guilty on the Second Charge:

  49. (a) in early 2002, TCY had told Tommy Tan that it was a legal requirement for CCC, as the borrower of the loan, to make repayment within the first two years of the loan period. TCY then told Tommy Tan to give him the sum of S$480,000 to make it appear as if CCC had made the payment. Tommy Tan made the payment of S$480,000 to TCY because he had believed TCY’s representations and did not want to burden CCC with repayment for the first two years (Judgment at [134]); and

  50. (b) critically, regardless of TCY’s explanations as to why the S$480,000 was paid to him, he had admitted that he did deceive Tommy Tan to get the S$480,000. He had made representations which he knew to be false to dishonestly induce Tommy Tan to give him the S$480,000. What TCY disputed was merely the mode of deception (Judgment at [143]–[144]).

  51. [23] On the Third Charge, the DJ noted that the sum of S$1,940,724.97 was the proceeds from the sale of nine million of the Poh Lian shares. TCY had received this sum and deposited it into his SCB and POSB accounts. He then signed the Deed of Trust in which he acknowledged holding A$3m for the purpose of investing the moneys with an Australian bank. This A$3m comprised the S$1,940,724.97 and a sum of S$900,000, the subject matter of the Fourth Charge. The DJ made the following findings in support of her holding that TCY was guilty on the Third Charge:

  52. (a) when Tommy Tan’s negotiations with Poh Lian management regarding the sale of the Poh Lian shares failed, TCY told Tommy Tan that he had ready buyers for the same. Tommy Tan believed TCY and transferred the Poh Lian shares to TCY for their sale (Judgment at [146]);

  53. (b) as the transfer of the Poh Lian shares from Tommy Tan to TCY was done pursuant to Memorandum 1 which provided that Tommy Tan “authorize M/s Tan Cheng Yew & Partners to negotiate the sale of all shares in Poh Lian Holdings Limited”, TCY was authorised to act in his professional capacity as an advocate and solicitor and not in his personal capacity (Judgment at [148]);

  54. (c) TCY’s subsequent course of conduct was conclusive to prove that he had been acting in his professional capacity (Judgment at [149]);

  55. (d) when TCY deposited the S$1,940,724.97 into his SCB and POSB accounts, intending to use it for his own purposes, he was acting dishonestly (Judgment at [154]); and

  56. (e) TCY’s claim that he intended to repay the S$1,940,724.97 to the Tan Family was not an acceptable defence (see the Judgment at [154]).

  57. [24] On the Fourth Charge, the DJ noted that TCY had admitted to receiving the sum of S$900,000 from Tommy Tan when Tommy Tan gave him a DBS cheque dated 28 May 2002. The DJ made the following findings in support of her holding that TCY was guilty on the Fourth Charge:

  58. (a) TCY had requested the S$900,000 by saying that with this additional sum (to make up A$3m) he would be in a better position to negotiate more favourable interest rates with the Australian bank. Tommy Tan had believed what TCY told him (Judgment at [155]);

  59. (b) TCY’s representations to Tommy Tan in the preceding subparagraph had been operative in Tommy Tan’s mind instead of the Deed of Trust (Judgment at [160]); and

  60. (c) the Deed of Trust did not exonerate TCY from his deceptive representations regarding the S$900,000 nor his breach of trust regarding the S$1,940,724.97 (Judgment at [162]).

  61. Issues on appeal

  62. [25] The issues raised on appeal fall broadly into three categories. Firstly, the extradition-related issues. Secondly, issues relating to the merits of TCY’s appeal against conviction. Thirdly, issues relating to the prosecution’s appeal against sentence.

  63. [26] The extradition-related issues are as follows:

  64. (a) the basis of TCY’s extradition from Germany to Singapore (“Issue 1”); and

  65. (b) whether there was a breach of the speciality rule (“Issue 2”):

  66. (i) in particular, the interpretation of s 17(a); and

  67. (ii) whether the initial charges and subsequent amendments fell within the scope of s 17(a).

  68. [27] The issues that go the merits of TCY’s appeal against conviction are as follows:

  69. (a) whether the term “attorney” in s 409 encompasses advocates and solicitors (“Issue 3”);

  70. (b) if Issue 3 is answered in the positive, whether, on the facts, TCY committed CBT in way of his business as an advocate and solicitor in respect of the s 409 charges (“Issue 4”); and

  71. (c) whether, on the facts, the elements of s 420 were satisfied for the s 420 charges (“Issue 5”).

  72. [28] The issue that relates to the prosecution’s appeal against sentence is whether the sentence imposed on TCY was manifestly inadequate (“Issue 6”).

  73. Analysis and decision

  74. Issue 1: the basis of TCY’s extradition from Germany to Singapore

  75. [29] As noted above (at [100]), the Arrest Warrant was issued on 28 November 2006. The Arrest Warrant was in the following terms:

  76. The Arrest Warrant did not provide the particulars of each charge.

  77. [30] As noted above (at [11]), the Requisition was subsequently made on 6 July 2009. The Requisition provides as follows:

  78. The Requisition was accompanied by a copy of the Arrest Warrant, a set of statement of facts (“Statement of Facts”) and depositions containing the facts upon which the Requisition was based.

  79. Record of the German extradition proceedings

  80. [31] Prior to the commencement of the trial below, the only record of the extradition from Germany was a Note Verbale issued by the German Ministry of Foreign Affairs to the Embassy of The Republic of Singapore in Berlin dated 1 October 2009 (the “First Note Verbale”). The translated First Note Verbale states:

  81. [32] The prosecution subsequently obtained a Resolution of the Higher Regional Court of Munich dated 24 November 2010 (the “Third Resolution”). The pertinent portion of the translated Third Resolution is as follows:

  82. The Higher Regional Court of Munich further observed that:

  83. [33] The position that TCY could be prosecuted for the sixth charge stated in the Requisition was reiterated by another Note Verbale from the German Federal Foreign Office dated 21 December 2010 (the “Second Note Verbale”), which states as follows:

  84. [34] A letter from Dr Robert Schnabl, the Senior Prosecutor in Munich, dated 8 December 2010 (the “German Prosecutor’s Letter”) confirmed that the extradition was declared admissible pursuant to the described factual circumstances and not the specific charges. There was therefore no objection to any amendment of the charges provided that they arose out of the same factual circumstances.

  85. [35] A resolution of the Federal Constitutional Court of Germany dated 17 September 2009 further dismissed a complaint that the proposed extradition would violate TCY’s constitutional rights on the basis of certain elements of the criminal justice system in Singapore.

  86. [36] During the course of the hearing of the present appeal, the prosecution obtained copies of two earlier resolutions of the Higher Regional Court of Munich dated 6 August 2009 (the “First Resolution”) and 24 August 2009 (the “Second Resolution”) respectively.

  87. [37] The First Resolution provided that the Arrest Warrant would be taken as the basis for the extradition, but acknowledged receipt of the Requisition and recounted the facts of the four counts of CBT under s 409 and two counts of cheating under s 420 as set out in the Statement of Facts. The Higher Regional Court of Munich then concluded that the extradition was to be put on hold as TCY had yet to be informed of the relevant extradition documents.

  88. [38] The Second Resolution stated that TCY had been heard before a judge on 11 August 2009 and had objected to his extradition on grounds of ordre public and breach of the principles of fair trial. These arguments were rejected by the Higher Regional Court of Munich, which resolved that extradition to Singapore was permissible. The Second Resolution, however, made reference to extradition on the basis of the criminal offences mentioned in the Arrest Warrant, instead of those set out in the Requisition.

  89. Scope of the extradition

  90. [39] Deputy Public Prosecutor Tan Ken Hwee (“Mr Tan”) argued that TCY’s extradition was based on the six charges specified in the Requisition, and that this was supported by confirmation from the executive arm of Germany. Mr Khoo submitted that the First Note Verbale, which referred only to the five charges in the Arrest Warrant, must be the most accurate record of the extradition proceedings, and that the post trial communication with the Government of Germany or German Prosecutor, was of “dubious value”.

  91. [40] I accept the prosecution’s position and do not see any reason to question the veracity of the contents in the Second Note Verbale. Extradition is an act involving the exercise of sovereign power – albeit in compliance with any domestic internal laws governing procedures – and the executive is therefore given the prerogative to determine the scope and conditions of extradition. I do not think that this court is in a position to go behind the discretion exercised by the executive of another country, and without further evidence, I have to take the Second Note Verbale on its face value and accept that the latest clarification of the position of the Government of Germany is that TCY was in fact extradited on the basis of the six charges listed in the Requisition. Mr Khoo had no grounds for challenging the veracity of the contents of the Second Note Verbale apart from asserting that the position taken there differed from that in the First Note Verbale.

  92. [41] I would note, for completeness, that an ancillary issue may possibly arise here, viz, whether the executive arm of the requested state may, after the individual has been rendered to the requesting state, give consent for additional offences to be included within the scope of the extradition. In the absence of full argument on this point, and although Mr Khoo expressly stated that he did not concede this point, I do not see any objection in principle or why this would offend against the fundamental concepts of extradition law if extradition is ultimately a sovereign act. For the purposes of the present appeal however, the Second Note Verbale only purported to make a clarification on the Government of Germany’s position based on the original Requisition, not to accede to the addition of an offence that was not originally listed in the Requisition. The only question was whether TCY’s extradition was admitted on the basis of the six charges listed in the Requisition or the five charges listed in the Arrest Warrant, and based on the Second Note Verbale, I conclude that it is the former.

  93. [42] On an assessment of the totality of the documents adduced as evidence before me, I am further satisfied that the extradition was made on the basis of the factual circumstances set out in the Statement of Facts accompanying the Requisition, and not the charges set out in the Arrest Warrant. This was the position taken by the executive and judicial arms of Germany in the German Prosecutor’s Letter and the Third Resolution respectively, and Mr Khoo has not disputed this.

  94. Issue 2: whether there was a breach of the speciality rule

  95. [43] The speciality rule is expressed succinctly in Alun Jones and Anand Doobay, Jones & Doobay on Extradition and Mutual Assistance (Sweet & Maxwell, Third Ed, 2005) at para 2-001:

  96. [44] Mr Khoo’s first point was that there had been a breach of the speciality rule, and he raised two broad speciality arguments. Firstly, that the extradition was on the basis of the five charges – one charge of CBT under s 409 and four charges of cheating under s 420 – listed in the Arrest Warrant. He thus argued that the prosecution was in breach of the speciality rule by prosecuting TCY on three charges under s 409 and three charges under s 420. Secondly, the prosecution was not entitled, under the speciality principle, to amend the Fourth Charge from an offence under s 409 to an offence under s 420 as the latter was an offence of a completely different genre.

  97. [45] In response, Mr Tan submitted that the German executive and judiciary had confirmed that there was no significance in the discrepancy between the five charges listed in the Arrest Warrant and the six charges listed in the Requisition, and there was therefore no breach of the speciality rule. Mr Tan also argued that the amendment of the Fourth Charge was permissible under the speciality rule embodied in s 17, as the amended charge under s 420 was an “offence of which [TCY] could be convicted upon proof of the facts on which that requisition was based”. In any event, even if there had been a breach of the Singapore-Germany Extradition Treaty, the obligations were owed only to Germany on the plane of international law, and the appropriate entity to raise the breach would be Germany, not TCY. There had been no such protest by Germany.

  98. Jurisdiction to consider whether the speciality rule had been violated

  99. [46] After hearing arguments on Mr Khoo’s preliminary objections to prosecution on the basis that the speciality rule had been breached, the DJ arrived at the following conclusion (Judgment at [7]):

  100. [47] To the extent that the DJ was concerned with challenges to the legality of the extradition proceedings in Germany, she was correct to consider that the Singapore courts were not the proper forum for adjudication. However the DJ had jurisdiction to consider Mr Khoo’s objections that the subsequent prosecution in Singapore violated the speciality rule.

  101. [48] Under s 17 of the Extradition Act, a person who has been extradited from a foreign State “shall not, unless he has been returned, or has had an opportunity of returning, to that foreign State” be detained or tried for a particular offence unless certain condition precedents have been met. In other words, s 17 prohibits the trial of any person on a criminal charge that does not comply with the conditions prescribed therein. Therefore if this issue is raised by the defence in any criminal trial, the judge must examine the charge and the circumstances under which it is brought to ensure that the trial is not prohibited by s 17.

  102. [49] I now turn to consider the scope of the speciality rule.

  103. The speciality principle under the Extradition Act

  104. [50] Section 17 provides as follows:

  105. [51] Section 17(a) sets out two provisos on when an extradited person may be tried for an offence: the first relates to the narrow offence for which the requisition for surrender has been made (“the first proviso of s 17(a)”), and the second ostensibly broader limb allows prosecution for an offence for which the extradited person may be convicted of upon proof of the same facts on which the requisition was based (“the second proviso of s 17(a)”).

  106. The speciality principle under the Singapore-Germany Extradition Treaty

  107. [52] Articles I to XIV of the treaty between the United Kingdom and Germany for the Mutual Surrender of Fugitive Criminals 1872 was extended to Singapore (with certain modifications) by Article I of an Agreement entered into between the governments of the United Kingdom and the Federal Republic of Germany on 23 February 1960. The provisions for extradition between Singapore and Germany are set out in the Second Schedule of the Federal Republic of Germany (Extradition) Order 1960, the continuance in force of which was confirmed by an Exchange of Notes dated February 1974 and 21 March 1974 respectively.

  108. [53] Article VII of the Singapore-Germany Extradition Treaty (“Art VII”) provides as follows:

  109. [54] Mr Khoo contended that Art VII should be construed narrowly and that the scope of s 17 was “obviously wider” than Art VII. He submitted that based on a prima facie reading of Art VII, an extradited individual may only be prosecuted for the specific crime for which the extradition has taken place; Art VII thus did not appear to cover situations under the second proviso of s 17(a) where a person may be prosecuted for offences that arise from similar facts upon which the requisition was based. Mr Tan disagreed that the scope of Art VII was materially different from s 17(a).

  110. [55] I note that Mr Khoo and Mr Tan only made assertions on the meaning of the phrase “for any other crime or on account of any other matters” without the citation of authority or a treatment of the historical context of the Singapore-Germany Extradition Treaty. It is not, however, necessary for me to express a definitive view on the construction of this phrase in the light of my conclusion below on the relationship between Art VII and s 17(a).

  111. The interpretation of s 17(a) and the relationship between Art VII and s 17(a)

  112. [56] It is trite law that Singapore follows a dualist position. In short, Singapore’s international law obligations do not give rise to individual rights and obligations in the domestic context unless and until transposed into domestic law by legislation, and there is therefore no question of whether Art VII or s 17(a) should “prevail” as they exist on different planes. It was common ground that Art VII cannot apply directly to circumscribe the prosecutor’s power to charge an extradited individual; instead, it is the Extradition Act that gives domestic effect to the entirety of Singapore’s obligations to other states under the various extradition treaties Singapore has entered into. Mr Khoo’s position was vaguely qualified by his submission that the speciality rule in international law operates to protect the rights of the individual, but I will deal with that argument separately. Therefore, the narrow question I am concerned with here is the interpretation of the scope of s 17(a) and its relationship with Art VII.

  113. [57] Against this, Mr Tan contended that s 17(a) did not admit of any such ambiguity that would permit the court to read out the second proviso, and also took the position that Mr Khoo’s argument would result in the wholly untenable proposition that the interpretation of s 17(a) would differ depending on which extradition treaty is in question on the immediate facts before the court.

  114. [58] Mr Khoo submitted that s 17(a) had to be read so as to give effect to Singapore’s international obligations under Art VII. Alternatively, he argued that s 17(a) should be construed with regard to the need for observance of the comity of nations. In other words, the allegedly wider scope of s 17(a) should be circumscribed by Art VII. Against this, Mr Tan contended that s 17(a) did not admit of any such ambiguity that would permit the court to read out the second provision, and also took the position that Mr Khoo’s argument would result in the wholly untenable proposition that the interpretation of s 17(a) would differ depending on which extradition treaty is in question on the immediate facts before the court.

  115. [59] I am not persuaded by Mr Khoo’s argument that the scope of s 17(a) can or should be construed in such a manner that the section is in effect truncated. The words of s 17(a) are not abstruse and should be given their plain and natural meaning. Even the most generous reading of that provision would not allow me to strike out the second proviso of s 17(a).

  116. [60] While I accept Mr Khoo’s submission that the courts should endeavour to interpret a domestic statute in accordance with the state’s treaty obligations under international law, this canon of interpretation has defined limits. The locus classicus is the judgment of Diplock LJ in the English Court of Appeal decision of Salomon v Commissioners of Customs & Excise [1967] 2 QB 116 at p 143E:

  117. [61] Mr Khoo submitted that there were ambiguities in s 17(a), viz, the meanings of the words “requisition” and “any other offence of which he could be convicted upon proof of the facts on which that requisition was based”. Even if I were to agree with Mr Khoo that s 17(a) has such inherent ambiguities, I am unable to see how Art VII assists in resolving such ambiguities. With due respect, Mr Khoo is not inviting this court to resolve an ambiguity in the words of the statute by preferring one interpretation over another, but to ignore words because they are purportedly ambiguous. That cannot be correct.

  118. [62] I have three comments to make apropos the decision of R v Seddon [2009] 1 WLR 2342 (“Seddon”), which Mr Khoo cited in support of his interpretation argument and which Mr Tan sought to distinguish. In Seddon, the English Court of Appeal construed s 146(3)(b) of the Extradition Act 2003 (c 41) (UK) (“the UK Extradition Act 2003”) consistently with the European Council Framework Decision 2002/584/JHA on extradition (“Framework Decision”), and concluded that the court had no jurisdiction to deal with a bail offence when an individual had been extradited for the offence of blackmail. Firstly, the UK Extradition Act 2003 was enacted for the purpose of transposing the multilateral Framework Decision and distinguishes between European and non-European territories. In other words, the interpretation of s 146(3)(b) of the UK Extradition Act 2003 – which relates only to European territories – with reference to the Framework Decision would be consistent in relation to all cross-border extraditions within the European Union. This is very different from saying that our Extradition Act should be construed differently depending on which specific bilateral extradition treaty is in question. Secondly, the English Court of Appeal was interpreting a phrase that had potentially more than one meaning, not disregarding the phrase entirely. Thirdly, the duty of harmonious interpretation of European Union law with domestic law is an onerous one that potentially goes beyond the common law canons of interpretation. I therefore do not think that Seddon persuasively supports Mr Khoo’s case.

  119. [63] The older English authorities based on s 19 of the Extradition Act 1870 (c 52) (UK) (“the UK Extradition Act 1870”) – which is in pari materia with our s 17 – preferred the view that the UK Extradition Act 1870 should be construed on its own terms without reference to any bilateral treaty. In The King v Corrigan [1931] 1 KB 527, where the defendant’s contention effectively paralleled Mr Khoo’s argument in the present appeal, the English Court of Appeal made the obiter observation that a treaty could not abrogate or dispense with the power to try a person for any extraditable offence that was proved by the facts on which the surrender of the person was grounded. Similarly, in John Pollitt Davidson (1977) 64 Cr App R 209, the English Court of Appeal noted that (at p 212):

  120. I therefore do not think that the interpretation of our s 17(a) may be circumscribed in the matter contended for by Mr Khoo.

  121. [64] Further, I am of the view that even if I were to construe s 17(a) with regard to the principle of comity between nations, this would not support Mr Khoo’s restrictive interpretation of the provision.

  122. [65] Mr Khoo directed my attention to American jurisprudence on the speciality rule based on comity between nations, discussed in the English High Court decision of Welsh and another v Secretary of State for the Home Department and another [2007] 1 WLR 1281 (“Welsh”). If comity between nations means something more than the reciprocal obligations assumed by states under extradition treaties, it must refer to the position that the sending state takes on the specific extradition and subsequent prosecution of an individual. As Ouseley J concluded at [37] of Welsh:

  123. [66] I observe that the United States of America is a monist jurisdiction. In monist jurisdictions, ratified treaties are self-executing and automatically give rise to domestic rights and obligations. The American courts are therefore considering the interpretation and breach of an extradition treaty directly to determine if any individual rights have thereby been infringed. In contrast, the courts of a dualist system are considering the parameters of a statute governing the state’s obligations vis-à-vis an individual, with the extradition treaty only tangentially in issue. Therefore, while comity is of immediate relevance for the former exercise in determining whether there has been a breach of the international treaty that disables prosecution for an offence, it is much more equivocal how this principle may apply in the latter, which concerns a completely different inquiry of whether the prosecution is in conformity with domestic law.

  124. [67] In any event, the application of this principle of interpretation – if it is one – to s 17(a) would undermine rather than support Mr Khoo’s preferred interpretation of s 17(a). On the evidence before me, both the judicial and executive arms of Germany have confirmed that under their internal law or procedure, extradition is not based on the particular charge stated in the requisition but the factual circumstances surrounding the charge. Given the sending state’s interpretation of the basis of extradition and how she has no quarrel with the present prosecution, I cannot see how it is necessary for me to construe s 17(a) restrictively in order to give effect to the principle of comity between nations.

  125. The speciality rule as a principle protecting individual rights

  126. [68] Historially, extradition has its roots in the Grotian tradition of territorial sovereignty. It was – and still is, albeit with the transposition of treaty obligations – principally conceived as an assertion of the dominium of the sending state through the exercise of the sovereign prerogative to surrender fugitives. Before me, Mr Khoo raised a supplementary point that s 17(a) should be given a restrictive reading in the light of Art VII as the speciality rule also extends to protect the individual rights of the fugitive. Mr Khoo directed me to the following passage in Seddon (at [5]) in support of his argument:

  127. [69] This is a novel point of law that would have benefited from fuller argument, but as Mr Khoo did not make further submissions on how an “individual rights” conception of the speciality rule would affect the interpretation of s 17(a) or whether it would confer some additional free-standing ground of challenge, I do not consider it necessary for me to express a concluded opinion. I would nonetheless venture a tentative observation in this regard that much of the theoretical debate and literature has centred on the American jurisprudence on locus standi, ie, whether an extradited person has an independent or derivative right in domestic courts to raise breaches of speciality provisions in treaties. This debate necessarily arises because of the self-executing nature of treaties in the United States (see above at [66]); but in a dualist system, any individual rights that can be asserted in domestic courts can only derive from implementing legislation. It is therefore, in my view, a purely academic issue in Singapore whether the speciality rule in an extradition treaty is additionally premised on the protection of individual rights insofar as legally enforceable rights are concerned.

  128. Scope of the speciality rule in Singapore

  129. [70] Drawing together the various threads of the analysis above, the only restriction on prosecution after extradition is contained in s 17(a), which permits prosecution only for an offence to which the requisition relates or to which the extradited individual could be convicted of upon proof of the facts on which that requisition was based. On a plain and natural reading of the words in s 17(a), I am therefore unable to accede to Mr Khoo’s submission that s 17(a) only permits prosecution for the same offence for which the Requisition was made as the words “or any other offence of which he can be convicted upon proof of the facts on which the requisition was based” clearly permit prosecution of any other offence so long as it is based on the same facts.

  130. Was the prosecution on the Second Charge a breach of the speciality rule?

  131. [71] The Second Charge under s 420 was the only charge that was not amended during the proceedings below. In the light of my factual finding above that the extradition was admissible on the basis of the six offences listed in the Requisition, the Second Charge was an “offence to which the requisition for his surrender relates” and the precondition for prosecution under s 17(a) has been satisfied.

  132. Were the subsequent amendments of the First Charge, the Third Charge and Fourth Charge in breach of the speciality rule?

  133. [72] The DJ made the following finding (at [9] of the Judgment):

  134. [73] The s 409 charges were amended from the charges listed in the Requisition, ie, that TCY committed CBT in his capacity as an attorney (the “original s 409 charges”) to the present charges that TCY committed CBT in the way of his business as an attorney.

  135. [74] I am unable to agree with Mr Khoo’s submission that the prosecution is precluded from charging TCY under the first proviso of s 17(a) because the legal ingredients of the original s 409 charges were stated differently and the two charges were bad in law. Section 17(a) only makes reference to “the offence to which the requisition for [the individual’s] surrender relates” [emphasis added]. As such, I consider that the first proviso of s 17(a) is satisfied if the extradited person is charged for the same offence under the Penal Code, even if the precise legal ingredients for the offence as stated in the requisition are formulated differently at trial.

  136. [75] In the absence of detailed legal argument on this point, I see no basis for reading the word “offence” under s 17(a) as requiring a strict correspondence of legal ingredients between the offence that the extradited individual is eventually prosecuted for and the original offence specified in the requisition. The historical rationale behind the speciality rule is essentially one of reciprocity, viz, the requesting state should not be allowed to prosecute the extradited individual for an offence that has not been specified in the request so as to override the requested state’s right to refuse extradition for particular types of offences. This rationale is not undermined where the extradited individual is prosecuted for the same offence – that may be defined in more than one way – albeit with different legal ingredients. A requisition is often made at a preliminary stage when the investigating authorities may not be apprised of all the relevant facts that may affect how the ingredients of the charge should be phrased, and in my view, s 17(a) should not be interpreted in a technical or pedantic manner such that the extradited person can only be prosecuted for a narrowly specific offence with the precise legal ingredients stated in the requisition. I therefore do not consider that the amendment of the original s 409 charges was a breach of the first proviso of s 17(a) as the original s 409 charges in the Requisition and the amended s 409 charges at trial all proceeded under s 409.

  137. [76] I also observe that the amended s 409 charges would, in any event, fall under the second proviso of s 17(a) as an “offence of which [TCY] could be convicted upon proof of the facts on which [the] requisition was based”. In relation to the First Charge, the Statement of Facts clearly indicated that TCY was acting as a lawyer for Tommy Tan and the Tan Family, and had converted the moneys entrusted to him in his capacity as a lawyer. In relation to the Third Charge, the facts also indicated a conversion of moneys entrusted to TCY by Tommy Tan and the Tan Family for the purpose of investment. Both sets of facts would equally support a charge under s 409 of CBT in the way of TCY’s business as an attorney.

  138. [77] I now turn to consider the Fourth Charge. Mr Khoo submitted that the amendment of the original Fourth Charge from a charge under s 409 to a charge under s 420 was a breach of the speciality rule as it did not fall within either proviso of s 17(a). It was argued that even if the second proviso of s 17(a) was applicable, the s 420 offence was not an “offence of which [TCY] could be convicted upon proof of the facts on which that requisition was based”. Alternatively, the DJ had erred as a charge of cheating under s 420 was not a reduced offence from a charge of CBT under s 409 but an offence of a different genre.

  139. [78] I deal with the last objection first. I do not think that the DJ was taking the position that it was an additional requirement under the second proviso of s 17(a) that the offence based on the same factual circumstances set out in the requisition must also be a “reduced” offence; she was simply making a general observation that TCY would be liable for a less severe punishment should he be convicted on the amended s 420 charge and was accordingly not prejudiced by the amendment. The words of the second proviso of s 17(a) do not fetter prosecutorial discretion in such a manner, and I do not consider that this silence is – as Mr Khoo has contended – an ambiguity. If Parliament had intended to limit the scope of the second proviso of s 17(a), it would have said so explicitly, and I cannot add a limiting judicial gloss on the plain words of s 17(a). It is therefore irrelevant whether a s 420 offence is a “reduced” or “different” offence from a s 409 offence.

  140. [79] The first objection is premised on the question of whether, in the Requisition, the Statement of Facts relating to the original Fourth Charge under s 409 also discloses the amended Fourth Charge under s 420. The relevant portion in the Statement of Facts is reproduced below in full as follows:

  141. [80] Mr Khoo submitted that the facts in relation to the Fourth Charge did not establish the essential ingredients for a cheating offence under s 420 as paras 21 to 23 in the Statement of Facts alleged entrustment and not deception. During oral argument, Mr Khoo also advanced the tentative legal proposition that where there is an element of entrustment, an offence of cheating cannot be made out.

  142. [81] With all due respect, this latter proposition runs completely contrary to my understanding of the offence of cheating under s 420, and I cannot agree with Mr Khoo’s submission. It is indeed true that cheating does not necessarily involve entrustment; it does not, however, follow that cheating can never involve entrustment. The definition of the word “cheat” used in s 420 is found in s 415 of the Penal Code which provides:

  143. The necessary elements of cheating are: (a) deception and (b) fraudulently or dishonestly inducing the person deceived to, inter alia, deliver any property. The offence can be made out so long as these elements are satisfied, even if the circumstances surrounding the offence involve an entrustment of some kind. Indeed in many cases of cheating, there would be entrustment of property by the victim to the offender. The facts disclosed in the Statement of Facts in relation to the Fourth Charge would, if proven, ground a conviction for an offence under s 420. Paragraph 21 states that TCY persuaded Tommy Tan to invest another S$900,000 in an Australian time deposit that was purportedly held on trust for Tommy Tan and the Tan Family in order to obtain a better interest rate, and that Tommy Tan issued a DBS cheque for the amount. This satisfies the element of “inducing the person deceived to deliver property”. Paragraph 22 then states that TCY did not invest the S$900,000 on behalf of Tommy Tan but instead converted it to his own use. TCY therefore acted “dishonestly” and “cheated” Tommy Tan as he had no intention of acting on what he had told Tommy Tan. Contrary to Mr Khoo’s submission that all three paragraphs had to be read together, I do not think that para 23, which concludes that TCY was entrusted with S$900,000 and converted the S$900,000 to his own use thus committing an offence under s 409, qualifies anything in paras 21 and 22. Paragraph 23 is simply an assertion of the offence disclosed by the facts, and does not mean that the facts cannot support another offence.

  144. [82] I am satisfied that the Fourth Charge is an “offence of which [TCY] could be convicted upon proof of the facts on which [the] requisition was based” under s 17(a). The prosecution of TCY on the amended Fourth Charge was therefore legal.

  145. Was there a breach of natural justice in the extradition proceedings?

  146. [83] I will summarily dismiss this final argument of Mr Khoo’s as I do not think that it was made out on the facts and therefore do not have to consider the legal implication of a finding that there had been a breach of natural justice in the extradition proceedings in Germany. Mr Khoo argued that the principles of natural justice had been breached as TCY was not present before the Higher Regional Court of Munich when the Third Resolution was issued.

  147. [84] With respect, Mr Khoo has not presented any evidence to support his allegations that there had been a breach of natural justice in the extradition proceedings, apart from assertions that TCY had not been present at the time the Third Resolution was made although the Third Resolution stated that it had been made “after hearing the persecutee”. I also note that apart from the disputed Third Resolution, Mr Khoo has not denied that TCY vigorously challenged – and was given the opportunity to be heard – his extradition to Singapore before both the Higher Regional Court of Munich and the Federal Constitutional Court of Germany. In the absence of any affirmative evidence, I am unable to agree with Mr Khoo’s submissions on the extradition-related issues.

  148. Conclusion

  149. [85] For the foregoing reasons, I therefore conclude that there was no breach of the speciality provision in s 17(a) for each of the four charges that TCY stood trial on.

  150. Issue 3

  151. [86] TCY has been convicted on the s 409 charges for the commission of CBT “in the way of his business as an attorney”. The first question is whether the word “attorney” encompasses an advocate and solicitor. Only if this is answered in the positive will it be necessary to consider Issue 4, viz, whether TCY was acting in the way of his business as an advocate and solicitor during the material events that gave rise to the s 409 charges.

  152. TCY’s case

  153. [87] TCY’s case is that “attorney” in s 409 means “a person who has been delegated to do something in the appointer’s absence, and does not mean to include an advocate and solicitor”. In other words, TCY’s case is that the word “attorney” refers only to the donee of a power of attorney. In support of this, Mr Khoo relied on Butterworths’ Annotated Statutes of Singapore vol 2 (Butterworths Asia, 2001) (“Butterworth’s commentary”) at p 622. Mr Khoo argued that the cases which the DJ had cited in support of her finding that “attorney” included an advocate and solicitor had been cases where pleas of guilt had been entered and thus the section had not been construed in great detail. In particular, Mr Khoo submitted that Sarjit Singh s/o Mehar Singh v Public Prosecutor [2002] 2 SLR(R) 1040 (“Sarjit Singh (HC)”) is not dispositive of the issue of whether “attorney” includes an advocate and solicitor as that issue was not canvassed before the court in that case.

  154. The prosecution’s case

  155. [88] The prosecution’s case is that “attorney” in s 409 includes an advocate and solicitor. Mr Tan raised four arguments in support of this. Firstly, the holding in Sarjit Singh (HC) was that advocates and solicitors, when entrusted with their client’s moneys, would fall within the purview of s 409. Secondly, the cases of Wong Kai Chuen Philip v Public Prosecutor [1990] 2 SLR(R) 361 (“Wong Kai Chuen”) and Public Prosecutor v Leong Wai Nam [2010] 2 SLR 284 (“Leong Wai Nam”) were cases where the accused persons had pleaded guilty to charges under s 409 in connection with their work as advocates and solicitors. Thirdly, the “plain and ordinary meaning” of the word “attorney” includes a “professional and properly-qualified legal agent practising in the courts of Common Law (as a solicitor practised in the courts of Equity); one who conducted litigation in these courts, preparing the case for the barristers, or counsel whose duty and privilege it is to plead and argue in open court”, which is the definition provided in The Oxford English Dictionary, Vol I (Clarendon Press, Oxford, 2nd Ed, 1989) at p 772. Fourthly, it would be against public interest for “attorney” to be construed as excluding advocates and solicitors, given that the section targets offenders who are in a position of trust vis-à-vis their victims and advocates and solicitors are often in such a position of trust.

  156. Analysis and decision

  157. The definition of “attorney”

  158. [89] Section 409 provides as follows:

  159. [90] It is clear that s 409 does not make any reference to the term “advocate and solicitor”. The Penal Code contains no definition of the term “attorney”.

  160. [91] While the DJ observed that s 409 does “not specifically mention advocates and solicitors”, she found that an advocate and solicitor could nonetheless be charged under s 409 as it has been “widely accepted that this provision applies equally to lawyers who have been entrusted with their clients’ monies” (Judgment at [51]). The DJ drew support for her view from the following cases: Wong Kai Chuen, Leong Wai Nam, and Sarjit Singh (HC) and Sarjit Singh s/o Mehar Singh v Public Prosecutor [2002] SGDC 150 (“Sarjit Singh (DC)”).

  161. [92] However, in Wong Kai Chuen and Leong Wai Nam, the accused persons had pleaded guilty to the charges under s 409, and therefore the issue of the meaning of “attorney” was not raised. This was in fact noted by the DJ at [52] of the Judgment. Further, in Wong Kai Chuen, all six charges brought against the accused were for CBT in his capacity as an agent, so the issue of the meaning of an “attorney” did not arise.

  162. [93] In Sarjit Singh (DC), this point was in issue as one of the accused’s arguments in his submission of “no case to answer” was that s 409 did not apply to an advocate and solicitor (see Sarjit Singh (DC) at [12]). The trial judge accepted the prosecution’s argument that s 409 clearly included “an advocate and solicitor, a person who held himself out as an agent for another”, and called on the accused to give his defence (see Sarjit Singh (DC) at [13]). Sarjit Singh (DC) is slightly ambivalent as to which limb of s 409 the accused was charged under, ie, whether he was charged for CBT in the way of his business as an agent or as an attorney. The judge held, somewhat obliquely, that an advocate and solicitor was “an attorney or agent within the meaning of s 409” [emphasis added] (Sarjit Singh (DC) at [71]). It will be remembered that this finding was also made by the DJ in the instant case. I find such remarks puzzling, as the mere fact that that an advocate and solicitor may be, on the facts of a particular case, an “agent” for his client does not necessarily entail that he is also an “attorney” for the purposes of s 409. The terms “attorney” and “agent” are not co-extensive and the expression “banker, merchant, factor, broker, attorney or agent” manifests an intention to refer to six separate categories of persons.

  163. [94] Further, a perusal of the charge sheet in Sarjit Singh (DC) reveals that the accused in that case was charged in the way of his business as an agent. Therefore, the analysis of the scope of “attorney” in that case is obiter. However I note that on appeal to the High Court, Yong Pung How CJ (“Yong CJ”) ruled as follows (Sarjit Singh (HC) at [21]):

  164. [95] Given that the cases do not specifically address the issue whether the word “attorney” includes an advocate and solicitor, I will proceed to analyse the meaning of “attorney” from first principles. In so doing, it is helpful to consider the legislative history and context of s 409.

  165. The legislative history and context of s 409

  166. [96] Our s 409 is derived from s 409 of the Indian Penal Code 1860 (Act XLV of 1860) (the “IPC”) which provides:

  167. As can be seen, our s 409 is in pari materia with s 409 of the IPC. The meaning of “attorney” under s 409 of the IPC may thus be instructive in examining the meaning of “attorney” in our s 409. While Butterworth’s Commentary at p 622 gives a narrow meaning to “attorney”, it goes on to refer to two leading commentaries on Indian law:

  168. [97] The issue is thus what “attorney” meant under s 409 of the IPC when that section was enacted in the IPC in 1860, to see what meaning the framers of the IPC intended. For this, I turned to the leading texts on the interpretation of the IPC. Ratanlal & Dhirajlal’s The Indian Penal Code (V R Manohar, gen ed) (LexisNexis Butterworths Wadhwa Nagpur, 33rd Ed, 2010) (“Ratanlal”) defines ‘attorney’ in the following manner (at p 883):

  169. This definition appears to support the view put forward by Mr Khoo that “attorney” was intended to refer to the holder of a power of attorney.

  170. [98] Dr Hari Singh Gour’s Penal Law of India vol 4 (Law Publishers (India) Pvt Ltd, 11th Ed, 2011) (“Gour”) defines “attorney” in the following manner (at p 4052):

  171. [99] Gour’s definition of “attorney” is thus twofold:

  172. (a) A private attorney: one who holds a power of attorney and who is appointed by another to transact any business for him. This is the definition Mr Khoo argued for.

  173. (b) A public attorney, or attorney-at-law: as the name suggests, this connotes one who is a practitioner in a court of law, who is among a class of lawyers. This would include an advocate and solicitor, and is the definition Mr Tan argued for.

  174. If the term “attorney” is broad enough to encompass both the “private” and “public” aspects, then TCY, as an advocate and solicitor, would be caught under the ambit of s 409, provided that he was acting “in the way of his business” as an advocate and solicitor (see below at [127]–[159]).

  175. [100] I note, in particular, Gour’s statement that “[i]n England, since 1873, attorneys are by statute called solicitors”. Section 87 of the Supreme Court of Judicature Act 1873 (c 66) (UK) prescribed that “all persons admitted as ... attorneys ... shall be called Solicitors of the Supreme Court”. Therefore, prior to 1873, the understanding of the word “attorney” in England would correspond to what we today call a “solicitor”. This provides an insight into the contemporaneous meaning accorded to “attorney” at the time the IPC was enacted. As the IPC was enacted before 1873, the drafters would have relied on the pre-1873 understanding of “attorney” as including a solicitor.

  176. [101] I will now consider whether this understanding of “attorney” is consistent with the framework of the Penal Code. The prosecution has submitted that s 409 targets offenders who are in a position of trust vis-à-vis their victims. Therefore, it would be anomalous for advocates and solicitors, who are often in a position of trust, to be excluded from the ambit of the word “attorney”. It was further urged that for this reason, it would be in the public interest for advocates and solicitors to come under s 409.

  177. [102] The statutory framework of the CBT group of offences in the Penal Code supports this contention. Sections 407 to 409 of the Penal Code, which deal with CBT by certain classes of persons, stipulate higher maximum sentences than that for CBT simpliciter which is found in s 406 of the Penal Code (“s 406”). The punishments stipulated reveal a sliding scale of severity of offences. At the lowest end of the spectrum is CBT simpliciter in s 406, where the maximum sentence provided is three years’ imprisonment. Next is s 407 which provides for CBT by a carrier, wharfinger or warehouse-keeper and attracts a maximum sentence of seven years’ imprisonment. Section 408 then provides for CBT by a clerk or servant and stipulates a maximum sentence of seven years’ imprisonment. At the highest end of the spectrum is s 409 which provides for CBT committed by a person in the capacity of a public servant or in the way of business as a banker, merchant, factor, broker, attorney or agent and stipulates a maximum sentence of ten years’ imprisonment or life imprisonment. This shows that as compared to s 406, ss 407 to 409 are treated as aggravated offences by virtue of the offender’s position vis-à-vis the victim.

  178. [103] In my view, the mischief that s 409 targets is the commission of CBT by persons who perform certain trusted trades, when they act in the way of their business. As stated in Gour at p 4037:

  179. Where it is normal for the public to rely on a person’s trade as a mark of his trustworthiness and integrity, and where such trust facilitates commercial transactions, it is important that such transactions are above board. A commission of CBT by a person in the performance of his trade would shake the confidence of the public in those trades and impede the ability of persons in such trades to serve the public. A breach of trust in such circumstances “may have severe ... public repercussions” (see Butterworth’s commentary at p 621). Therefore, s 409 provides that CBT committed in the capacity of a public servant or in the way of business of a banker, a merchant, a factor, a broker, an attorney or an agent, would be punished more severely than CBT committed by persons who are trusted on an ad hoc basis under s 406.

  180. [104] The practice of law has long been held to be an honourable profession in which absolute trust in the integrity of its practitioners is essential not only for the administration of justice but also to the smooth operation of the wheels of commerce. It would be a glaring omission were the profession to be excluded from the list of “banker, merchant, factor, broker, attorney and agent” singled out for greater punishment, when much more trust is normally reposed in an advocate and solicitor than the other trades.

  181. [105] By reason of the foregoing, I hold that the word “attorney” in s 409 includes an advocate and solicitor. I turn to the next issue, whether the moneys were entrusted to TCY in the way of his business as an advocate and solicitor.

  182. Issue 4

  183. TCY’s case

  184. [106] The main thrust of TCY’s case is that the s 409 charges were not made out as the properties which formed the subject matter of the charges were entrusted to TCY in his personal capacity and not in the way of his business as an attorney. Therefore, even if CBT was made out, this would be CBT simpliciter under s 406 and not s 409. TCY’s position has been, all along, that he would have pleaded guilty at the first opportunity if the charges against him had been preferred under s 406 (Judgment at [174]). In his long statement, TCY had told the police the following:

  185. The First Charge

  186. [107] Mr Khoo argued that the sum of S$1.5m belonged to CCC at the time it was entrusted to TCY as the Tan Family had loaned the sum to CCC pursuant to a loan agreement dated 30 July 2001 (“the Loan Agreement”). The S$1.5m was thus entrusted to TCY by CCC and not by the Tan Family. While TCY drafted the Loan Agreement in the way of his business as an advocate or solicitor, he held the S$1.5m as an express trustee. TCY’s case is that it was not in the nature or business of an advocate and solicitor to act as an express trustee. Mr Khoo cited Dubai Aluminium Co Ltd v Salaam and others [2003] 2 AC 366 (“Dubai Aluminium”) and Lim Kok Koon v Tan Cheng Yew and another [2004] 3 SLR(R) 111 (“Lim Kok Koon”) in support of this. Mr Khoo then submitted that TCY’s only act in the way of his business as a solicitor for the Tan Family was in the drafting of the Loan Agreement; all his other acts relating to the First Charge were done in his personal capacity:

  187. (a) Even though the cheque for S$1.5m that TCY received from CCC was stated to be “issued in favour of your solicitor”, it was, pursuant to the terms of the Loan Agreement, made out to him personally as payee. The cheque was made out to “Tan Cheng Yew”, rather than “Tan Cheng Yew & Partners”.

  188. (b) The Loan Agreement did not provide that the S$1.5m was to be paid into Tan Cheng Yew & Partners’ client’s account, but stipulated that the money was to be paid into an account with DBS Bank Shenton Way Branch to be opened in TCY’s personal name.

  189. Mr Khoo submitted that while the Loan Agreement referred to TCY as “Tan Cheng Yew of Tan Cheng Yew & Partners”, this was only descriptive of where he was from and did not indicate that TCY was entrusted the money as a solicitor.

  190. [108] Further, TCY’s case is that he had not converted the S$1.5m to his own use by pledging the fixed deposit containing the moneys to secure a short-term loan facility from DBS Bank. According to Mr Khoo, conversion would only occur if there was a drawdown and TCY was unable to repay the overdraft when demanded with the result that the bank exercised its right of set-off against the fixed deposit charged.

  191. [109] Mr Khoo also raised the argument that Tommy Tan had acquiesced to TCY pledging the S$1.5m as security for the short-term loan facility in order to buy the Venture linked notes to obtain better returns for the money. Mr Khoo pointed to a document titled “Authority to Pay” which purported to show that Tommy Tan had given express authority to TCY to buy the Venture linked notes.

  192. The Third Charge

  193. [110] While TCY admitted that he was authorised under Memorandum 1 to act as the Tan Family’s solicitor to negotiate the sale of the Poh Lian shares, his submission is that when the negotiations failed, that authority came to an end. Mr Khoo contended that Tommy Tan’s subsequent instructions to TCY to assist in the sale of the Poh Lian shares on the open market could not have originated from Memorandum 1 which merely covered negotiations with the Poh Lian management. Clause 5 of the Deed of Trust provided that the Tan Family “fully discharge Tan Cheng Yew from any further obligation owed to us prior to this date in respect the sale of shares in Poh Lian Holdings Limited and the disposal of the said proceeds and any obligations owed to us will be pursuant to the terms of this Deed of Trust dated 25 May 2011 only and is superseded by the said Deed of Trust”.

  194. [111] Further or in the alternative, TCY had declared in the Deed of Trust that he would hold A$3m (this sum comprised the S$1,940,724.97 which formed the subject-matter of the Third Charge) and thus held the moneys as an express trustee. Pursuant to Lim Kok Koon, as an express trustee, TCY was not acting in the way of his business as an advocate and solicitor. Moreover, it is not in the nature of the business of an advocate and solicitor to engage in commercial transactions such as the sale of shares on behalf of his client. The sale of the Poh Lian shares was thus undertaken in TCY’s private, personal, capacity. As Lim Hsi-Wei Marc v Orix Capital Ltd and another and another appeal [2010] 3 SLR 1189 (“Marc Lim”) observed at [41], a law firm’s business is to provide legal services, it “does not buy, sell or trade in goods”.

  195. [112] Mr Khoo also pointed to cl 5 of a memorandum of a meeting held on 26 May 2002 (“Memorandum 2”), which provided that the moneys would not be sent to Australia unless, inter alia, it was expressly authorised by the beneficiaries.

  196. The prosecution’s case

  197. [113] The prosecution’s case is that to determine whether “in the way of his business” is met, a subjective test should be applied, ie, from the point of view of the person entrusting the money:

  198. (a) was the entrustment done to the accused by the way of his business as an attorney; or

  199. (b) was the entrustment wholly incidental to the accused’s business as an attorney or was it unknown to that person that the accused was an attorney?

  200. [114] According to the prosecution, if entrustment falls under (a) then “in the way of his business” is satisfied. Conversely, if the entrustment falls under (b) then “in the way of his business” is not satisfied.

  201. The First Charge

The judgment continues past this page. Read the rest at eLitigation.