YAP CHEN HSIANG OSBORN V PUBLIC PROSECUTOR [2019] SGCA 40
In the recent High Court decision of Yap Chen Hsiang Osborn v Public Prosecutor [2019] SGCA 40 (“Osborn”), the Court of Appeal acquitted the Applicant of five charges under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap. 65A) (the “CDSA”) and set aside his sentences imposed in respect of those charges.
I. BACKGROUND
1. In April 2013, the Applicant met a lady by the moniker of “Laura” on an online dating website and the couple grew intimate. Subsequently, Laura asked for the Applicant’s help to pay for customs duties she had purportedly incurred. The couple agreed that Laura would remit monies to the Applicant’s DBS bank account. In return, the Applicant was promised approximately US$15,000, inclusive of tax liabilities if any.
2. In total, the Applicant received S$520,590 from a HSBC bank account in Bermuda, which disposed of in accordance with Laura’s instructions and under the explanations given by her. Unbeknownst to the Applicant, the monies had been procured by a fraud perpetrated on HSBC. The Applicant was charged with five charges under s 47(1)(b) of the CDSA and one charge under section 411 of the Penal Code (Cap. 224) (the “PC”) and was convicted of all charges in the District Court.
A. Section 411 of the PC
3. The salient subsections are reproduced as follows (all emphasis ours):
“Dishonestly receiving stolen property
411.—(1) Whoever dishonestly receives or retains any stolen property, knowing or having reason to believe the property to be stolen property, shall be punished with imprisonment for a term which may extend to 5 years, or with fine, or with both.”
“Dishonestly”
24. Whoever does anything with the intention of causing wrongful gain to one person, or wrongful loss to another person, is said to do that thing dishonestly.”
4. The District Judge held that:
a. the S$520,590 was stolen property;
b. the Applicant had reason to believe the S$520,590 was stolen property due to the red flags in Laura’s behaviour; and
c. the Applicant had dishonestly received the S$520,590 as he would have caused wrongful gain to Laura and wrongful loss to the owner of the monies.
B. Section 47(1)(b) of the CDSA
5. The District Judge held that the actus reus of transferring or removing stolen property from the jurisdiction was made out as the Applicant had been found guilty under s 411 of the PC. In respect of the mens rea, the Applicant’s actions were tainted as he had “reason to believe” under the s 411 PC charge.
II. BEFORE THE COURT OF APPEAL
6. Following the dismissal of his appeal against conviction and sentence by the High Court, the Applicant applied to refer questions of law of public interest to the Court of Appeal (the “CA”) and was granted leave. The issues (the “Two Issues”) before the CA were as follows:
a. Can a secondary offender who launders the proceeds of another person’s crime but does not commit the crime himself be charged under s 47(1) instead of s 47(2) of the CDSA?
b. Does the Applicant’s “benefits from criminal conduct” under s 47(1) of the CDSA refer to the entire proceeds of the crime or his actual benefit?
7. The CA clarified the legislative framework applicable to the Two Issues and traced s 47(1) and s 47(2) to their original enactments in the Drug Trafficking (Confiscation of Benefits) Act (Cap 84A, 1993 Rev Ed) ([18-27] Osborn).
A. Issue 1: Subsection 47(1) or 47(2) of the CDSA:
8. The relevant subsections of the CDSA applicable as at May 2013, the time of the offences are reproduced as follows (all emphasis ours):
“Acquiring, possessing, using, concealing or transferring benefits of criminal conduct
47.—(1) Any person who —
(a)
conceals or disguises any property which is, or in whole or in part, directly or indirectly, represents, his benefits from criminal conduct;
(b)
converts or transfers that property or removes it from the jurisdiction; or
(c)
acquires, possesses or uses that property,
shall be guilty of an offence.
(2) Any person who, knowing or having reasonable grounds to believe that any property is, or in whole or in part, directly or indirectly, represents, another person’s benefits from criminal conduct —
(a)
conceals or disguises that property; or
(b)
converts or transfers that property or removes it from the jurisdiction,
shall be guilty of an offence.
Interpretation
2.—(1) In this Act, unless the context otherwise requires —
“criminal conduct” means —
(a)
doing or being concerned in, whether in Singapore or elsewhere, any act constituting —
(i)
a serious offence (other than an offence under section 44 or 47); or
(ii)
a foreign serious offence;
“foreign serious offence” means an offence (other than a foreign drug trafficking offence) against the laws of, or of a part of, a foreign country stated in a certificate purporting to be issued by or on behalf of the government of that country and the act or omission constituting the offence or the equivalent act or omission would, if it had occurred in Singapore, have constituted a serious offence;
“serious offence” means —
(a)
any of the offences specified in the Second Schedule;
(b)
conspiracy to commit any of those offences;
(c)
inciting others to commit any of those offences;
(d)
attempting to commit any of those offences; or
(e)
aiding, abetting, counselling or procuring the commission of any of those offences;”
9. The CA affirmed the guidelines to statutory interpretation laid down in the case of Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 ([31] Osborn):
a. First, ascertain the possible interpretations of the provision, having regard not just to the text of the provision but also to the context of that provision within the written law as a whole.
b. Second, ascertain the legislative purpose or object of the statute.
c. Third, compare the possible interpretations of the text against the purposes or objects of the statute.
10. In respect of the first step, the CA affirmed the position that s 47(1) targets primary offenders (as evident from the phrase “his benefits”) as opposed to s 47(2), which targets secondary offenders (as evident from the phrase “another person’s benefits”) ([34] Osborn).
11. The CA also acknowledged that s 47(1) could encapsulate a secondary offender convicted under s 411 of the PC as the latter offence was a “serious offence” listed in the Second Schedule of the CDSA, which constituted “criminal conduct” referred to in s 47(1) if a literal interpretation were to be taken. However, this transformed secondary offenders into primary offenders and “would render s 47(2) redundant” and “courts should endeavour to give meaning to every word in an enactment” ([35] Osborn).
12. In addition, notwithstanding the PC has many overlapping offences; they differ in gravity and sentence. However, subsections 47(1) and 47(2) have the same sentencing range as provided in s 47(6) of the CDSA, rendering s 47(2) redundant if secondary offenders could be charged under s 47(1) ([37] Osborn).
13. The CA further remarked that the apparent lack of a requirement for mens rea in s 47(1) is sensible if the subsection is only applied to primary offenders, by reason that a primary offender benefiting from his own criminal conduct must necessarily know that he is dealing with benefits as such ([38] Osborn).
14. In respect of the second and third steps, the CA acknowledged that a literal interpretation of s 47(1) would aid in achieving the purposes of the CDSA; to “deprive criminals of the ability to enjoy the fruit of their criminal conduct and to protect the goods names of Singapore’s financial institutions and its status as a financial hub” ([41] Osborn).
15. This was because the local “serious offence” under s 411 of the PC would form the basis of the conviction of a secondary offender under s 47(1) in a case where the proceeds involved a crime committed in a foreign jurisdiction. This facilitated convictions by obviating the need to proceed under s 47(2), and prove that a foreign crime had been committed ([41] Osborn).
16. However, the fact that the CDSA was later amended to permit other evidence to prove foreign law in recognition of the difficulties of obtaining the issuance of foreign certificates to prove the “foreign serious offence” ([27] Osborn), indicated otherwise as the amendment would be unnecessary if secondary offenders could simply be charged under s 47(1) ([42] Osborn).
17. For these reasons, the CA held that s 47(1) is not applicable to a secondary offender ([46] Osborn).
18. The CA also addressed the hypothetical wherein the Applicant was charged under s 47(2) instead. The CA accepted that it was possible to read the phrase “another person” in s 47(2) to refer to the primary offender engaged in “criminal conduct” in a foreign jurisdiction, which in turn referred to the secondary offender’s offence under s 411 of the PC due to the use of the phrase “concerned in”, if a literal interpretation of s 47(2) were to be taken ([51] Osborn).
19. However, such an interpretation was rejected by the CA amongst others, on the basis that there would then “almost never be a need to obtain a foreign certificate”, the circularity in convicting the Applicant of dealing with property representing the benefits of the “criminal conduct” in the foreign jurisdiction, which is based on the Applicant’s own criminal offence and that s 47(2) refers to the primary offender benefiting from the Applicant’s conduct, which is improbable if based on the mere receipt under s 411 of the PC as opposed to the laundering of stolen property by the Applicant.
B. Issue 2: Entire proceeds or actual benefit:
20. As the CA had held that s 47(1) only referred to primary offenders, then “his benefits” accordingly referred to the benefits accruing to him ([58] Osborn).
III. SIGNIFICANCE
21. This case sheds much clarity on the applicability or non-applicability thereof of subsections 47(1) and 47(2) of the CDSA to primary and secondary offenders.
22. Bearing facts, which are all too familiar, this case is also a poignant reminder that even “innocent victims” ([16] Osborn) much like the Applicant can objectively be found to have had “reasonable grounds to believe” and prosecuted for money laundering under s 47(2) of the CDSA for their role as a secondary offender, which has more bite as the CDSA presently stands, as the Authorities no longer need to rely solely on obtaining foreign certificates to prove a “foreign serious offence”.
Tags: Money laundering, Secondary offender, Benefits from criminal conduct, Dishonestly receiving stolen property, Actual knowledge, Having reason to believe, Wrongful gain or wrongful loss Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act, Penal Code.
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