TT Durai v PP [2007] SGDC

TT Durai v Public Prosecutor[2007] SGDC 334

Information

Suit No: DAC 15733/2006, MA 126/2007

Decision Date:

17 Dec 2007

Court: District Court

Coram: Aedit Abdullah

Counsel: David Khoo and Gillian Koh Tan (Deputy Public Prosecutors) for the Prosecution, Sant Singh (Senior Counsel) and Christine Sekhon (Sant Singh Partnership) for the appellant

Up

Judgment

17 Dec 2007

District Judge Aedit Abdullah:

1. The Appellant was tried before me on one charge under s 6(c), Prevention of Corruption Act, Cap 241. That charge alleged that between December 2003 and January 2004, the Appellant, being an agent of the National Kidney Foundation as the Chief Executive Officer, knowingly used with intent to deceive his principal, the NKF, an Invoice, number 0014, from DTC Pte Ltd dated 29 December 2003, containing a statement false in a material particular, namely that it was for ‘interior design consultancy service rendered for various dialysis centres for year 2003, for the amount of $20,000, and that he knew that it was intended to mislead the NKF.

2. A second charge concerning a different allegation was stood down at this trial.

3. The trial lasted for 20 odd days, involving some 17 witnesses. Submissions were tendered on 10 May, and oral arguments heard on 28 May.

The Prosecution’s Case

4. The Prosecution’s evidence included the testimony from a number of witnesses who were officers and staff of the NKF at the material times. PW1 Wendy Au May Lee, a former secretary to the Appellant, testified on the drawing up of the paperwork, namely a requisition to purchase, after an invoice from DTC Pte Ltd was received. PW2 Ragini d/o Vijayalingam, who was an Assistant Manager of the Purchasing Department of NKF, at the material time, testified as to the procedures, and what happened when she received the requisition to purchase. PW9 Loh Yee Leong Michelle (hereinafter referred to as “Michelle”), an Executive in the Building Department of the NKF at the material time, gave an extensive amount of testimony concerning the procedures of the building department, and the approval processes for a number of projects and instances of work.

5. Evidence was also received from a number of other NKF officers, namely PW3 Lakshmanan Krishnadas, the Assistant Manager of the Finance Department of NKF, who was overseeing the Purchasing Department at the material time; PW4 Rajesh Dileep Desai, an Associate in the Internal Audit Department of NKF, at the material time; PW7 Tan Eng Wai Alvin, an Executive in the Accounts Payable Division of the Finance Department of NKF; PW8 Anirban Kumar Ghosh, the current Manager of the NKF’s Finance Department; PW10 Sebastian Chow Fook Heng, a former Assistant Project Manager of the Building Department of NKF, until he resigned from the NKF in September 2003; and PW11 Jamilah Bte Ismail, Head of the Building Department of NKF, until her retirement in February 2004.

6. These witnesses largely testified and were cross-examined on the procedures to be followed in ordering services or goods, receiving performance and payment thereafter. Those involved also testified that DTC Pte Ltd was not previously a supplier of services to NKF and that interior design services had been rendered by David Tan through other vehicles. There was some questioning on the belief by some of them, particularly PW9, that the payment to David Tan was an hongbao, possibly for his marriage, but this did not lead very far.

7. PW5 Loo Say San, then Treasurer of the NKF and PW6 Richard Yong Kun Da, then Chairman of the NKF testified as to their roles and functions, as well as that of the Appellant.

8. PW12 David Tan Kee Kan, hereafter David Tan, an interior designer and director of DTC Pte Ltd and TID Associates Pte Ltd, was the person who directed the issuing of the invoice under DTC’s name to NKF, which led to payment to DTC of $20,000. That $20,000 was subsequently repaid by David Tan to NKF, through CPIB. David Tan testified as to his involvement with NKF over the span of 2 decades or so, and his relationship with the Appellant. He and his company, TID Associates, and its predecessor, had been paid for interior design work which they had provided to NKF, particularly for its Dialysis Centres, described at various times as the crown jewels of the NKF. At the same time, the Appellant tapped on David Tan for advice down the years, particularly as to design improvements or changes to the Dialysis Centres, but also to the NKF building and various initiatives. David Tan was also involved in efforts to raise donations from the Singapore Buddhist Welfare Services, and a philanthropist and his family. His evidence as to the circumstances of the raising of the invoice and its payment, as well as the purpose of the payment, was a matter of some controversy and complication, particularly as he gave two inconsistent sets of statements to various parties, and which were not consistent with his evidence in chief in court. This will be examined further below.

9. There were two other witnesses from TID / DTC. PW13 Loh Lay Kuan Jean was the Executive Secretary of TID. PW14 Gregory Pong Kai Chee, Managing Director of TID International Pte Ltd, and nephew of David Tan, gave evidence primarily on a meeting he had with the Appellant concerning David Tan.

10. There were 3 witnesses from the CPIB, namely PW15 Osman Ahamed, Chief Special Investigator with the CPIB, who was the Investigating Officer in charge of this case and who recorded most of the statements from David Tan; PW16 Elvin Lim Wee, Senior Special Investigator with the CPIB who recorded one statement from David Tan; and PW17 Wong Pong Yen, Chief Special Investigator with the CPIB, who had been present during one discussion between PW15 Osman Ahamed and David Tan, and who had been consulted by Osman.

Close of the Prosecution’s case

11. At the close of the Prosecution’s case the duty of the Court at that stage of the proceedings, was to determine whether on the evidence adduced thus far there was evidence, which was not inherently incredible, and which if accepted as accurate, would be sufficient, together with reasonable inferences that can be drawn, to establish the elements of the charge against the Appellant: Haw Tua Tau v PP [1980-1981] SLR 73, PP v IC Automation Pte Ltd [1996] 3 SLR 249; Tan Chuan Ten & Anor v PP [1997] 2 SLR 348.

12. The primary issue was what to make of the evidence of David Tan, particularly the two different sets of statements relied on by either side under s 147(3) Evidence Act. I noted that I could not choose between the two sets on the basis of which was first to be invoked in the hearing; that would be purely fortuitous.

13. It was argued by the Defence that the respective parts of the CPIB statements relied upon by the Prosecution ought to be rejected as the statements were obtained in conditions which rendered them incapable of being given weight: the statements were, it was said, full of inconsistencies, that inaccuracies arose when the witness was unable to think coherently and clearly because of his treatment, and there were alleged threats or inducements held out to him. Although the Defence took issue with the conditions under which the CPIB statements were recorded, particularly those within his overnight detention, I did not in the end find that these statements should be given little or no weight. His treatment at CPIB and the questioning adopted there had not caused the witness to give statements that could not be relied upon at all.

14. The KPMG or CAD statements (D30 and D31 respectively) were not the subject of similar complaints, but both were the subject of portions of the CPIB statements, particularly that on 16 Feb 2007 (P35), which contradicted them.

15. The choice between the two sets of statements could not be made simply on the grounds that one was inconsistent with the other.

16. David Tan did in the end state a preference for the statements to the CAD and KPMG; he testified that what he eventually told the CPIB was because he was responding to a specific scenario, in his words, put to him. However, I did not give that preference much weight since David Tan had earlier in his testimony put forward the position that all the statements essentially had elements of truth.

17. I noted that the Appellant could provide much light on the various issues. There was to my mind based on the evidence at that stage of the proceedings, a reasonable inference that the invoice was false, and that it had been used as such, with the intention of misleading the NKF, and that the Appellant intended to deceive.

18. This was not the only reasonable explanation; and there may be others that are exculpatory of the Appellant. However, given that the assessment at that stage of the proceedings was to be made on a general appreciation of the whole of the evidence adduced up to that point, I concluded that one reasonable inference from the inability of David Tan, the ostensible issuer of the invoice, to identify definitively what the payment was for, taken with the surrounding circumstances, including the absence of materials that could support work being done, is that there was nothing that would meet the description in the invoice There was also nothing inherently incredible about the prosecution’s evidence in this regard.

19. I thus called on the defence of the Appellant.

Defence

20. The Appellant chose not to testify when his defence was called. The Defence thus closed on the evidence of the Prosecution only.

Submissions at the close of the case

Prosecution’s Submissions

21. The Prosecution’s case is that reliance should be placed on David Tan’s CPIB statements, and that none should be given to what was said to KPMG and CAD. David Tan did not allege involuntariness in the statement, and had consistently given evidence that no one had bullied or coerced him. He had also been given ample opportunity at each occasion to read over, make corrections and sign thereafter. The evidence of the Investigating Officer also showed that David Tan was relaxed and jovial; he remained alert during interviews. No pressure was placed on him at all. The contents of the statements, particularly, P33, which was recorded after David Tan had returned from a trip to KL, were corroborated by CSI Wong. Furthermore, the seventh and last CPIB statement (P35) was recorded about a year after the first tranche, when any stress or unfamiliarity would have been removed. Errors in the statements, such as that in P31 about the trip to Samoa and the amount of donations given, were understandable.

22. No weight should be accorded to the CAD and KPMG statements given the circumstances involved, such as phone calls from the Appellant, and David Tan’s explanation in his CPIB statements, that the KPMG statement was given out of a realisation that he had committed an offence.

23. The Prosecution’s CPIB statements support inferences leading to a finding of guilt against the Appellant.

24. Even if the Prosecution CPIB statements are not given substantial weight, the other evidence adduced, together with inferences from his silence, support the finding that the Appellant is guilty of the charge.

Defence Submissions

25. It was argued that the Appellant was not an agent of the NKF, given that he was given substantial autonomy and powers. These were not unlimited as the Appellant could only do those acts which were for the work and benefit of the NKF. If he had wanted to, he could have rewarded David Tan, as this was within his powers. Attorney-General’s Reference No. 2 was distinguishable.

26. The invoice was not false in a material particular; it only lacked details or items that did not really matter. David Tan did provide design consultancy services in 2003.

27. The Defence reiterated that the payment of the $20,000 was not in relation to soliciting for donations, as this was not borne out by the evidence which showed that the donation from the Singapore Buddhist Welfare Services was not linked to David Tan’s efforts; that David Tan had no expectation of a reward; and that in relation to the donation

concerning Mr Tay Choon Hye, David Tan clearly was not concerned about any financial gain.

28. Any doubt about the payment of the $20,000 only arose because of the 2nd CPIB statement onwards. The evidence showed that the payment was for ad hoc services provided by David Tan. There was a long standing relationship between David Tan and the NKF / the Appellant. David Tan was consulted often on various matters, including the renovation or upgrading of the dialysis centres, and modifications such as gyms, the development of cancer centres and those required to deal with SARS. Consultation was also had in respect of projects in Samoa and Vietnam.

29. The work done by David Tan was worth more than $20,000. By its very nature, ad hoc consultancy work would be varied. Given his effort, it was logical for David Tan to be paid.

30. The bona fides of the payment was also shown by the fact that the Appellant had cleared the invoice through the normal means, including approval by Richard Yong.

31. The Defence argued that what should be accepted of David Tan’s evidence, in the CAD and KPMG statements showed that there was work justifying the invoice and payment; or if that was not the case, that David Tan’s evidence should be rejected because of inconsistencies and the fact that he was an accomplice to the alleged crime.

32. The 1st CPIB statement, the KPMG transcript and the CAD statement support the contention that the $20,000 was paid for ad hoc consultancy work by David Tan.

33. In contrast the other CPIB statements, namely those relied upon by the Prosecution, could not be accepted. There were untruths in these statements, and inconsistencies.

34. The independent evidence from the other witnesses showed that work was done leading up to the payment of the $20,000. There was also no departure from the internal procedure of the NKF, as other examples also showed a similar pattern.

35. The inconsistencies in David Tans’ evidence, particularly in his later CPIB statements, was such as to put in doubt the Prosecution’s case, following Jagetheesan s/o Krishnasamy v PP [2006] 4 SLR 45. David Tan was also an accomplice, whose evidence had to be treated with caution. And the contradictions rendered his evidence unsafe.

36. In view of the evidence showing work done by David Tan, the Appellant had not knowingly used a false invoice to deceive the NKF, and had no intention of doing so.

37. The silence of the Appellant here should not necessarily attract an adverse inference. This was not a case where only the Appellant could shed light on the falseness of the invoice; it was David Tan who could do so. There was no obligation on the Appellant’s part to explain away David Tan’s evidence.

38. There were no inferences that could be drawn against the Appellant by his silence that would support conviction. The cases show that adverse inferences should only be drawn where the Appellant in essence is the only person who can explain the situation; this is not the case here since David Tan has given evidence.

39. The Defence argued against the Prosecution’s contentions particularly in respect of the statements given at the CPIB; it was also contended that the Prosecution has elided its position as to what the invoice was to be for.

The Decision

The elements of the charge

40. The elements for the charge to be made out were listed by Yong CJ in Ong Beng Leong v PP[2005] 1 SLR 766. The following adapts that list:

(a) that the Appellant was an agent of NKF;

(b) the invoice contained a statement which is false;

(c) The invoice was a document which the NKF was interested in;

(d) The Appellant used the invoice

(e) In using the invoice, the Appellant knew it was false and intended to mislead the NKF; and

(f) the Appellant did intend to deceive the NKF.

Element (c) is not really in contention. The fact that the NKF paid out on the invoice is a clear indication that the document was one in which the NKF was interested. It may be that there are situations where payment on a document does not sufficiently indicate interest, but this is not one of those. Element (d) was to my mind established since the Appellant approved the invoice.

41. Some argument was made on the establishment of element (a), while those in (b), (d), (e) and (f) are in issue, and are bound up together.

Element (a): That the Appellant was an agent of the NKF

42. The evidence was, particularly from Richard Yong and Loo Say Sun, and supported by that of the other NKF officers, that the Appellant was conferred significant operational autonomy in the running of the NKF, and that he would be the main decision making authority. Richard Yong (PW6) testified (at NE 290-291):

Q: Effectively the CEO was in charge of administration, finance, fund raising, operations, clinical services and running the day to day affairs of the foundation?

A: Yes.

Q: In particular, the CEO was also authorised by the Exco to enter into any arrangement or contract including the assets, ordinary course of business, and authorise payments legally binding on corporation?

A: Yes.

Q: These wide powers were given to the CEO because the council then met once a year at the AGM, and the Exco met once every 3 or 4 months, and the members of the EXCO were volunteers were not expected to undertake any of these duties as listed in para 9?

A: Yes.

Q: In fact when NKF was incorporated into a company limited by guarantee, the board of directors similarly met once a year, at the AGM and the Exco also met once every 3 or 4 months?

A: Yes.

Q: The board of directors and the members of the Exco, all of whom were volunteers and unpaid, with businesses of their own to run were in no position to undertake the duties, and they were left to the CEO to run as before?

A: Yes.

43. Loo Say Sun similarly testified (at NE page 271):

Q: When you said that for project approval, you said CEO went to Exco for approval, the Exco would only meet once every 3 or 4 months?

A: Yes.

Q: In the meantime if the project is to carry out and if routine project, which NKF has done many many times before, would the CEO would be entitled to carry on?

A: Yes the CEO has been authorized to carry on day to day operations of the foundation.

Q: He would carry on day to day, but would report to Exco at quarterly or once-thirdly meeting?

A: Yes.

Q: Otherwise work of NKF would grind to a halt?

A: Yes. We were all volunteers.

44. I had a concern whether that autonomy meant that for the purposes of the charge, the NKF and the Appellant could not be distinguished. If that was the case, then it could be argued that the Appellant quaprincipal would have consented to his actions qua agent, which meant that there was no offence made out, since in that situation the principal was not deceived or misled.

45. The Defence argued that the case cited by the Prosecution to support its contention that the Appellant remained an agent for the purposes of s 6(c), Attorney-General’s Reference (No 2 of 1982) [1984] 2 All ER 216, was distinguishable as that case was concerned with whether a person in total control of a company was capable of stealing from that company, and whether such a person could be charged with theft of the company’s property. It contrast,

however it was said that in the present case the purpose of the payment of the $20,000 was not for the Appellant’s personal purposes, but purely for the benefit of the NKF. These were not to my mind the point of the citation of this case by the prosecution; the concern was to show, that while a person could be in total control, it is necessary to distinguish that person’s absolute control from the interests of the company or corporate entity in question. Attorney-General’s Reference (No 2 of 1982) merely illustrated the importance of bearing in mind that distinction.

46. In the present situation, while at the material times the Appellant had significant if not total leeway in the running of the organisation, he could nonetheless act detrimentally against the NKF by approving payment on an invoice that was false or incorrect. His extensive control and authority could not extend to justifying the approval of a false invoice; there are limits that should be imposed. As noted at the close of the Prosecution’s case, the head of an organisation or a corporate entity, even if given at the time full autonomy by those to whom he ostensibly answers, has an obligation to follow procedures, and record departures from such procedures, and ensure that the records are fully and faithfully kept; he speaks not only to those who approve of his actions at the time but also to those who may come after. A company or organization is as much its systems and records as it is a collection of persons under the direction of its leader, and a company is meant to exist after a change of its current mind and will. I therefore accepted that even if the Appellant had significant autonomy, and that for some purposes he was synonymous with the NKF, he had to be distinguished from the NKF for the purposes of s 6(c). Under that section, an agent would always remain an agent, however broad his authority.

The other elements

47. In contending that these elements are made out, aside from its CPIB statements, the Prosecution relies on the evidence of the NKF officers, largely that the approval of the invoice in question was not done according to the proper procedure. In comparison, the Defence argues that either David Tan’s evidence cannot be relied upon, or that the portions to be believed were those which exonerated the Appellant. The Defence further contends that the evidence of the NKF officers did not go far, since various exceptions to the standard procedure had occurred in the past.

48. David Tan’s evidence is thus the pivot point of the case.

David Tan’s evidence

49 As noted above, there are at least three different versions of the facts according to David Tan. Firstly, that there was work actually done to support the invoice. Secondly, that there was no actual work done, and that the money was a reward or token of appreciation. Thirdly, there was an attempt at a possible reconciliation between the first and the second, which was put forward by David Tan in his testimony on occasion. There are variations of these three versions as well.

50. In examining the statements of David Tan, as I emphasised in my remarks at the close of the Prosecution’s case, strictly speaking only those parts that were contradictory or inconsistent should be brought in if at all, and these were identified by the respective parties. I shall refer to these as the s 147(3) statements.

51. It is important to note that the contest between the Prosecutions’ s 147(3) CPIB statements and the Defence’s s 147(3) CAD and KPMG statements is not simply between two sets of statements; both sides invoked the substitution of evidence under s 147(3). However, s 147 does not itself contemplate controversy between two different sets of statements; it looks to the possibility of an inconsistent statement replacing the evidence in court. As noted in Chai Chien Wei Kelvin v PP [1998] SGCA 64 [at para 55]:

the consequences that follow upon the proof of a former statement inconsistent with any part of the witness’s evidence which is liable to be contradicted are first, that his credit is impeached under s 157(c) and second, that his former statement is admissible as evidence of any fact stated therein under s 147(3). The weight to be attached to the statement is determined by the factors stipulated in s 147(6).

52. There is therefore scant guidance for situations such as this. As a matter of principle however, I am of the view that the substitution if any by either set of statements of the evidence in court would be subject to s 147(6), which states:

In estimating the weight, if any, to be attached to a statement admissible in evidence by virtue of this section regard shall be had to all the circumstances from which any inference can reasonably be drawn as to the accuracy or otherwise of the statement and, in particular, to the question whether or not the statement was made contemporaneously with the occurrence or existence of the facts stated, and to the question whether or not the maker of the statement had any incentive to conceal or misrepresent the facts.

The presence of other statements with a competing version of events is therefore a material consideration in determining the weight to be placed on each.

53. It could be argued that the Evidence Act only contemplates substitution by one version, and that where multiple versions exist, the safest course would be to reject the evidence of the witness entirely; a person who has given multiple versions, it is presumed, cannot be relied upon at all. However, such an approach to my mind takes too broad a brush; the circumstances should be looked at to determine what can be reliably used in the determination by the court. And that to my mind is what s 147(6) permits.

54. As a matter of contemporaneity, the statements to the CAD and KMPG are closer in time to the events; however, proximity in time to my mind is not particularly material in a situation such as the present, where even the most contemporaneous statement is somewhat removed from the events.

55. As for the question specified in s 147(6) whether the maker had any incentive to conceal or misrepresent, it could be argued that such a situation exists given the change in position by David Tan. However, in a situation of competing sets of statements, it may be possible in some circumstances to nonetheless find that while there may be such a desire by the maker, one set should be preferred over the other. But as will be noted below, in effect, my conclusion was not to choose between the competing sets; albeit not because of any concerns about concealment or misrepresentation, but rather because there was nothing to indicate which way the choice should fall.

56. I accepted that the CPIB statements relied upon by the Prosecution were not made under adverse conditions rendering them unworthy of weight. Counsel took issue with the conditions under which these statements were recorded, some occurring in the early hours of

the morning. As I did at the close of the Prosecution’s case, I do not conclude that such treatment goes to affecting the weight of these statements.

57. Although the recording of some of these statements did take place in some discomfort for the witness, that did not immediately lead to unreliability. What is needed is that the discomfort is of such a degree that the make of the statement was not concerned at all with the truth or otherwise of his statement. The Defence pointed to a number of inaccuracies in the statements given by David Tan, concerning the sums involved in the donations by Tay Choon Hye and by the Singapore Buddhist Welfare Services. It was argued that given the importance of these sums, a mistake should not have been made as to the figures involved. Similarly, it was also pointed out that there was a mistake in the statement about the Samoan trip.

58. However, to my mind, the 2nd to 7th CPIB statements were largely consistent with each other as to the main thrust, namely the purpose and foundation of the payment of the $20,000 to David Tan. Such consistency was an indication that the maker was aware of what he was saying. Errors as to details, even details that should presumably stick in the mind of the maker, did not go to robbing the statements of all reliability. A long process of recording will probably lead to some errors being made; but unless such errors dominate the statements, totally unreliability would not result. I did not find that the statements in question contained such a degree of error that wholly undermined their reliability. The discrepancies did not go to the root of these statements. The witness was able to give a broadly coherent version of events in them.

59. Furthermore, given the testimony of the witness in court, who for much of he trial was trying to maintain a position that each of the various statements was true in its own way, (even though he said the truth was in the CAD and KPMG statements), and that he had given the CPIB statements because of the context in which he was asked certain things, I did not find that these statements were unreliable because of the way he was treated. If indeed his treatment was such as to create unreliability, it would have been expected that he would complain or refer to such ill treatment.

60. The witness did not do so. He did refer to the stress of being questioned by CPIB, but at no point in his testimony did he testify that such stress was to a degree that the statement could not be relied upon. In fact he testified (NE 691-692):

Q: When you say that it was stressful, did anyone cause you stress, did anyone cause this?

A: Not so much particular person. It’s just the waiting in the cubicle, not knowing when and who will be coming to speak to you. That kind of uncertainty, yeah, the whole environment. I am not used to. Agree that it’s not a holiday. Very unfamiliar, and as such the unfamiliarity gave rise to stress. Your mind does get very tired.

Q: You were allowed sufficient rest before giving this statement.

A: Yes, we were given rest.

Q: Given lunch and dinner the day before?

A: Yes, I would say the rest period, the way it is given to rest, it would is different from what we would normally expect from resting. It’s not comfortable.

Q: Understandably so?

A: Yes.

Q: You knew that it was a serious matter when you went to the CPIB?

A: Yes.

Q: Before the statement was recorded from you, a caution was read that you have to tell the truth?

A: Yes.

Q: Did you tell the truth?

A: Of course.

61. In the 7th statement, David Tan was asked directly about the versions he had given to KPMG and the CAD. He stated that the truth was in the CPIB statements. This sets up a direct contest between the two sets of statements. It did not follow however that this indicated that the 7th CPIB statement was obtained through pressure or coercion rendering it or any of the earlier CPIB statements unreliable.

62. There were also issues taken with other aspects of the recording process, particularly that the Investigating and Recording Officer did not seem to be aware of the contents of the KMPG transcript till much later, and that he did not seem to comprehend the nature of what David Tan had been describing as ad hoc consultancy work. A number of other subsidiary points were also taken. However I was of the view that in the end none of these went to materially affect the reliability of the statement. Again there was a core of consistency, supporting the parts relied on in the invocation of s 147(3).

63. It is true that towards the end of his testimony David Tan testified that he was under stress from his interrogation or interview at the CPIB. I do not understand that testimony however to be that David Tan otherwise said untrue things in the relevant CPIB statements. Rather, it would seem that David Tan felt himself compelled to maintain a particular line because of what he was confronted with when he was there: [NE 702-703]

Q: Do you still stand by this?

A: Yes. Wish to explain.

Ct: Explain.

A: The interview at KPMG was held in the afternoon at KPMG HQ, for about an hour and a half or so. This was conducted in the most very casual, but businesslike manner. There at the interview, I did mention that the 20k invoice raised was for various DCs and that some of the work in 2002 or 2003 not related to DCs, had been part of the reason why the 20k was given. Then at CPIB obviously as earlier on as I said it was not conducive, it was requested by one of the points brought up by the IO,

and had got 2, 3 days of questioning, it became very clear that there are technical issues, technical problem that has got to do this 20k invoice. Why I say that, because the IO reminded me, and I am quite clear on this, and asked me, where are the details of this so called ad hoc design services which you said that you told KPMG, do you have any evidence whatsoever with regards to these details, ad hoc details. So I said that I don’t think I can recollect it or even tabulate it. Then the IO said if you do not have those evidence, what could the 20k be? I said, back of my mind, I think it also has got to do with fundraising, which I will maintain to today. The fact that the 20k was for my work and effort in helping NKF esp. the part of the fundraising. So in the answer to the CPIB, about which is true or which is not true, KPMG is also true in that respect, but the CPIB had more time with me, and had explained to me very carefully, and I find that there are truth in both interview depending on how I interpret it and honestly put in, at KPMG I said yes work done, but CPIB told me if work done where is the invoice, so I said no, very difficult to get invoice, like for verbal consultancy, therefore I cannot say that KPMG transcript is wrong, not true, there are lots of things that are true, and CPIB is also true, and towards the end after all the explanation I have seen all these things in light, because I have the time to reflect at CPIB, to think over very carefully, and my conclusion at the time at CPIB, it was not right to keep the 20k. So, I immediately had it released paid back, don’t want to keep the money, since such a big outcry, it was returned in Jan 2006. My conclusion is KPMG and CPIB both have valid points

It would seem that at least part of the time David Tan was trying to provide a basis for both sets of statements as containing the truth.

64. As noted above, David Tan towards the end maintained that the truth was in the KPMG and CAD statements, and not that in the version given to the CPIB. His stated preference at that point did not sit well with his attempts to justify earlier to justify the evidence he had given at various stages, by attempting to reconcile them. In the circumstances therefore, I did not accept his final stated preference.

65. Flowing on from that, I did not find that the treatment meted out to the witness, namely the long questioning session following his arrest, resulted in statements that could not be used. I note further that even in respect of statements of Appellant persons, there is no requirement that they should be treated with kid gloves: Panya Martmontree v PP [1995] 3 SLR 341. Some discomfort is to be expected in the process. The question in respect of the statement of a witness is whether such discomfort goes to the extent of creating unreliability.

66. Additionally, I should note that even if I had rejected the CPIB statements, it did not necessarily follow that the truth was in the CAD and KPMG statements. As noted above, when confronted with the CPIB statements, he attempted initially to explain why he had given different versions. Had the CPIB statements been clearly false, David Tan would have been expected to reject it wholly at the first opportunity, yet it took him to the close of the questioning for him to evince a preference for one set over the other; before that point, he attempted to reconcile them in a very tortured way. In view of that, I could not accept David Tan’s eventual preference. His credit and credibility in so far as the areas touched on by the sets of statements was in doubt, and I could not accept either, or even the CAD / KMPG statements alone as evidence.

67. The Defence for its part relied on the CAD statement, and the KPMG interview. The Prosecution argued against this contending that the CAD and KPMG versions were prompted by the Appellant or were lies, respectively. I do not find that this definitively been shown.

68. As at the close of the Prosecution’s case, I could not find that in view of the material inconsistencies and mutual contradictions between the statements that I could give any weight to any of the parts of the various statements sought by both sides to be relied on under s 147(3). There was nothing in the other evidence which would support one in preference to the other in fulfilling the requirements of s 147(6). It is not legitimate to my mind, and not supported by the cases, for me to prefer one set on the basis of how well it sits with the other evidence, particularly, as in a case like this, where the very point of adducing the statements is to establish either guilt or innocence. To do so, would in effect be assuming the conclusion to be derived.

69. I conclude that while there were a number of unsatisfactory aspects to David Tan’s evidence, I should not reject him as a witness entirely unworthy of credit or credibility. I was satisfied that there were parts of his evidence that I could rely on. The case law is clear that the Court can determine that a witness can be believed as to some parts, and disbelieved as to others. As noted by the Prosecution, an impeachment does not necessarily lead to the rejection of the whole of the evidence of the witness in question; scrutiny still has to be made: PP v Somwang Phattanasaeng [1992] 1 SLR 138. The same applies to substitution under s 147(3), and even in a situation such as the present where two sets of statements compete. The Court would have to be careful and astute in such a situation, but if there is some part of the evidence which is not tainted, it may be accepted.

70. Counsel at the close of the case cited Karthigesu JA in Taw Cheng Kong v PP [1998] 1 SLR 943:

195 I have no hesitation in reminding myself that where the court in a criminal case is faced with an unresolvable conflict of evidence, it must give the benefit of the doubt to the Appellant person.”

In the present case however, the conflict was not unresolvable. Again, as at the close of the Prosecution’s case, what I was left with was some evidence that David Tan gave that was not contradicted by the material portions of the statements admissible under s 147(3), and which were at least consistent with the other parts that were not so admitted and are only before this court to provide context for an assessment of weight under s 147(6). In particular, he had testified that the initial call about the invoice came from the Appellant, and he, David Tan, did not inquire into what it was for. Learned Senior Counsel did argue that this was inconsistent with the statement to KPMG, which in the relevant part, describes an agreement between the Appellant to pay David Tan a lump sum of an indefinite amount; it was also argued that David Tan had admitted in cross-examination that there was a connection between this agreement and the payment of $20,000. However, to my mind there was no inconsistency. I did not read the cross-examination answers as indicating that at the time when he was informed of the payment, that he knew that it was in relation to this agreement.

71. As noted by the Prosecution, when first cross-examined by the Defence David Tan testified, after being asked about the KPMG transcript (at NE 645D-646E):

Q: From these 3 sentences it appears that you told KPMG that you had to charge NKF, and Duraitold you he would give a lump sum, and you agreed?

A: Yes.

Q: From this transcript, what was agreed with Durai for this ad hoc consultancy services, there would be a lump sum that he would pay you for these design consultancy services?

A: Yes.

Q: This lump sum is the $20,000, was in the context of thee invoice for $20,00 that you were being questioned about?

A: No. I would explain.

Q: Explain.

A: When I said ‘Durai, I must spend time’ and Durai said he would give a lump sum, the actual amount of $20,000 was not mentioned at that time. So I did not expect anything. It’s just like Sat lunches, I would like complain to Durai, and he would say I would pay a lump sum. I just brushed aside, and not even think of anything. Only later on did he offer the $20k.

Q: From your last answer, you were complaining about having to do so much work, and with so many of them, it was not fair for you to spend so much time, and Durai said he would give you a lump sum for the ad hoc services that you provided?

A: Yes.

Q: Really the only thing that was not discussed in reference to what is on page 58 is the quantum of the lump sum?

A: Yes.

Q: And in Dec 2003, when you received this phonecall from Durai that he was going to pay you $20k, it was in the context of this conversation that you had that you were complaining that NKF could not take advantage, doing so many centres, it was in this context?

A: Yes, quite correct.

While this could support the contention that what David Tan was testifying was in support of the KPMG statement, David Tan subsequently testified (NE 670D-671F), when cross-examined by the Prosecution:

Q: There is a contradiction between what you said in court in EIC and XXN. Explain what has this 20k to you got to do with this oral advice that you gave NKF or Durai pertaining to cancer treatment facilities in DCs?

A: The 20k paid to us with regards to the verbal discussion I had with TT on the proposed cancer centres was again, although no design was involved, it’s again the 20k embraces all the rest of the work which we put in. I really don’t know what is behind the 20k, he wanted to give to me; we did not even ask for it. It forms part of an overall

thank you like a token of appreciation for all the work that encompasses all the work that I gave to NKF, whether it’s for cancer, for gym introduction, or bringing other people to help NKF, whether it’s design or donation. This 20k which is initiated by Durai is in his thoughts. It’s in his mind.

Ct: What do you mean?

A: I don’t know why he wants to give me a thank you, token of appreciation, there was nothing specific, whether for fund raising, or for job. At the time he says it’s a token of appreciation. That’s the basic thing about it.

Q: You just said that you didn’t really know what this 20k was for. Why then did you agree with DC when he gave you a list of oral consultancy work, and you had the 20k was for that?

A: When DC asked me and I agreed that there were work done, this 20k could have been part of an overall payment, a token of appreciation for all this works I had done for NKF. And of course, the effort of fundraising. I agreed with DC that this 20k could have been an overall gesture for thanking for work done. But the actual specific area where this 20k was going to, whether for this or that, I think I do not know. It definitely, probably whether some work done, I think the 20k goes through for this ad hoc work for Dialysis Centres. I agreed with him that this could be a part of the payment towards the effort and work I had done for NKF.

Q: DC was very careful. He didn’t say that it could have been. He asked you, was this 20k for such oral consultancy work. What is this explanation?

Again, if you really didn’t know what this 20k was about, why did you agree with DC that this 20 k was specifically for oral consultancy work?

A: The 20k is again I believe, part of it, part of it would have to go into this work done. Perhaps in the mind of Durai the 20k could also be for the other support I gave to NKF, but from me agreeing with DC for the 20k specifically, I still believe that there was work done and it was part of the 20k, I think, it would have gone to paying for this work done, but I strongly believe that the effort of fundraising is a factor we have to consider.

72. I read his answer as indicating, at least at that point on the stand, that to him the agreement was part of the context for the payment of the $20,000; that does not mean that the $20,000 flowed from the agreement. In addition, there was also the answer given by David Tan to me at the end of his testimony which revealed that the Appellant never actually explained what the money was for to the witness, which supports the initial version given in EIC that the witness did not really know what the payment was for.

73. David Tan was therefore to my mind trying to provide an explanation or explanations for payment. David Tan maintained at the end that the payment was for ad hoc consultancies and fundraising efforts, but the difficulty with the fundraising portion was that as argued by learned Senior Counsel, these did not constitute a basis for payment. As for the ad hoc consultancies, these were not adequately described in the invoice.

74. Additionally, there is implicit in the description in the invoice a requirement that there be an obligation to pay. Leaving aside the agreement described in the KPMG transcript, which I am unable to give weight to, the various ad hoc consultancies were not, according to the witness, meant to be paid for at the time, though he was apparently not averse to obtaining it. There was therefore no obligation to pay for these ad hoc consultancies, and the evidence I had which I could rely on did not show an adequate reason for such payment being made in the end.

75. And David Tan himself construed the payment of the $20,000 not as a payment that had to be made, but rather as one made in recognition of his contributions, i.e. gratis. The difficulty with accepting this construction of the payment is that there was no precedent for this in the NKF, and David Tan had been involved with the NKF for a long period; and such recognition was not given in a public way, in a ceremony, as one would have expected. And indeed had the $20,000 really been meant as recognition for work done, as David Tan had maintained, then it would seem incongruous, given that there are other alternative ways that he could have been rewarded, such as through the giving of a token plaque or something similar.

If the KPMG and CAD statements were accepted

76. Even if I could have accepted the KPMG transcript D30 as containing the truth, that is, that Durai had agreed to pay David Tan for work he had done, difficulties would have resulted. In particular, the $20,000 figure makes it difficult to accept David Tan’s preferred characterisation of the invoice and payment. If indeed, it was for ad hoc work done by him, then it would seem to be a paltry sum, given the amount of work he had to do. Taking an hourly rate of $250 as David Tan claimed, a sum of $20,000 would represent 80 hours or so, or about 10 man days (at 8 hours per day): NE, page 700

Q: Your charge up rate from commercial customers would be about $400 per hour.

A: Only $250.

Even if the charge out rate was lower for a charity, say $100, that would leave about 200 hours or 25 man days.

77. In comparison, in cross-examination by Counsel it would seem that what was said to be covered by the ad hoc work covered a range of matters, including improvements to the various dialysis centres, and modifications to them. The $20,000 would not to my mind represent compensation for the work that David Tan says he put in as ad hoc consultancy. That would seem to show that the $20,000 could not be linked to the ad hoc work as claimed by David Tan and argued for by the Defence. Furthermore, if the $20,000 was indeed to be compensation, it would seem odd that there is no mention by David Tan that there was any attempt to ascertain the amount of work he had put in. Without that process, it is difficult to see how the Appellant, or the NKF, or for that matter David Tan himself, could have been assured that what was to be paid out was a fair or reasonable amount in relation to the work put in by David Tan. As it is on the evidence before me, it seems that David Tan had no input on the figure, and that tended to my mind to show that it could not be linked to the claimed ad hoc work, whatever the status of the KPMG transcript might be, and whether a promise had indeed been made by the Appellant.

Accomplice evidence

78. David Tan as the one raising the invoice and being recipient of the payment is an accomplice of the Appellant. However the effect of this was limited. Learned Senior Counsel referred to a number of decisions on the status of accomplices and the treatment of their evidence.

79. The primary danger in the cases highlighted is that accomplices may downplay their own role or involvement and implicate the Appellant person. Such an interest goes against veracity and credibility, and it is true that in many situations, the evidence of accomplices has to be carefully evaluated and considered with that concern in mind. In the present case however there was no attempt on his part in all the three versions proffered, to implicate the Appellant. Even in the CPIB s 147(3) statements, David Tan was attempting to explain the possible reasons for the invoice and statement; though he was warned about committing offences, there was nothing that showed any laying of blame on the Appellant or a downplaying of his own role at the expense of others. I am of the view therefore that I can accept David Tan’s evidence which is not contradicted by the two sets of the s 147(3) statements.

80. Counsel in his oral arguments contended that if the Court took the position that David Tan was indeed surprised and shocked by the offer of the payment, which had come out of the blue, then the KPMG statement was untrue, and David Tan’s credibility would be at stake, since he had lied on a material particular. Similar arguments could be made for the other statements as well. The conclusion I reached was that given the competing sets of s 147(3) statements in the present case, there was to my mind nothing that could lead me to prefer one over the other. Clearly the fact that the witness in question had provided at least 2, possibly 3 or 4 different versions, depending on how one counts, there would be concerns about his credit and credibility. What could be relied on, I found, was a core of his evidence that was not touched by the s 147(3) statements. In this regard, it is possible that if the KPMG transcript was true, yet the witness could still be shocked and surprised at the unexpected conferment of the$20,000: the promise to pay was made some time back, and there was apparently no follow up by the Appellant or NKF for a long while.

The Core Evidence

81 The flip-flopping of David Tan, as it has been so described, is a matter of concern. But while there were competing and incompatible versions given by this witness in Court and in his out of court statements, as I have noted, there is a core of evidence which has not been significantly affected by the changes in his position, which could be accepted. Why this witness has changed his position probably cannot be determined conclusively in these proceedings. The Prosecution has suggested that at least part of the explanation lay in the suborning of the witness by the Appellant; the defence points to what they see as ill-treatment at the CPIB, as well as the desire of the witness to avoid prosecution. I found that there was no ill-treatment at the CPIB that would render the statements wholly unreliable. As for the desire of the witness to avoid prosecution, as noted above, I concluded that while he was an accomplice, on the present facts I did not find anything to show that his evidence was thereby tainted and unreliable. While the witness testified that he did feel concern about prosecution, such concern did not translate to a desire or intention to implicate the Appellant without foundation. I did not make any finding however that the Appellant had suborned the witness.

82. It may be that David Tan’s changing versions arose out of competing desires to on the one hand assist the Appellant by casting a favourable light on the events, and on the other to avoid prosecution, but there were insufficient facts for the Court to arrive at such a conclusion as a finding of fact. That is part of the reason for the focus of the Court in trying to determine a core of evidence that survived the change of position.

83. David Tan’s evidence should not be wholly rejected. There was indeed a core of untainted evidence. What was not touched by the statements, and considered above, was that:

a. David Tan received a call from the Appellant informing him that he would be paid $20,000;

b. In that call, David Tan was told to raise an invoice, stating that services were rendered for various Dialysis Centres in 2003;

c. This invoice of $20,000 was not the result of any concluded prior agreement before the phone call from the Appellant;

d. David Tan had provided various services without the expectation of charging for it;

The evidence of the NKF officers

84. The evidence of the various NKF officers is relevant and material to indicate the context against which inferences if any can be drawn. Their evidence was largely that there were specific procedures in place, and that the payment on the invoice in this charge did not follow this procedure: see the testimony of PW2 Ragini, PW7 Tan Eng Wai Alvin, PW9 Loh Lee Yeong Michelle, and PW 11 Jamilah Binte Ismail.

The stipulated procedure

85. That stipulated procedure was described by the various witnesses as follows, in summary, that requisitions to purchase would be raised, which would lead to the entry of a contract with the supplier, who would then supply the goods or services, with a delivery order, then send an invoice, which in turn would be processed for payment. The Procedure was described by PW2 Ragini in the following terms (NE 55A-56A).

Q: In relation to RPs, the forms, we know that at some point it would be channelled to purchasing. What was purchasing dept to do when it received RPs?

A: Usually anything above $200, the user dept has to raise the RP. So they will pass it to the Purchasing dept and we get the relevant people to sign and then do the purchase order.

Q: Who are the relevant people to sign?

A: Not all the Purchase orders are signed by Internal Audit, because IA will say which one they want to see. HOD will sign before Mr Loo. Mr Loo will sign. Then Durai will sign. Not all will go to MrDurai.

Q: Would you sign on the RP?

A: I will initial.

Q: What were you supposed to do before you initial?

A: In most cases we have to sure there are three quotations.. And usually it’s just that that 3 quotations attached and purchase is justified by the user depts’ head.

Q: You say that the purchasing dept would put up the PO?

A: Yes.

Q: What would happen to the PO?

A: One copy would go to our file. One copy will be given, sent by mail to supplier, one will go to accounts dept, to process the payment.

Q: Would you know how payment would usually be effected?

A: Because most of the documents attached to PO and the RP, that we are sending to accounts department, they would wait for invoice. Usually payment by cheque.

Q: Were there times when goods or services rendered but no prior RP?

A: Yes. Usually it’s from the building department. Like they have some urgency, pipe leak or some urgent matters in the dialysis centre. They have to do the job then raise the RP.

PW1 Wendy Au also testified as to the procedure be followed (NE 7F – 9F):

Q: Can you give us, tell us what you understand of the procedure?

A: Suppose we want to purchase something that is above a certain amount, we have to look for 3 quotations. And then we justify why we want to purchase the item. And submit it for approval. The requisition to purchase, together with the supporting documents.

Q: Document, Tab D. (marking C for identification) shown to witness. Is that how a requisition to purchase looks like?

A: Yes.

Q: What would you normally raise an RP after sourcing for quotation, how would you do it?

A: I will attach the document together with the RP and I fill up the name of the department. Which in my case will be donor relations. Then I will write my name or sign. On staff name, then get the HOD to sign. In my department perhaps my colleague will do it then I will sign as HOD. Then I will give this to the purchasing department. I will write in the recommended supplier , then the justification for supplier, if there is, and then justification for purchase of the item. And also on the right hand side I will also fill in the payment terms and mode, delivery date, and all that. All the information required.

Q: What documents are you referring to?

A: The quotations.

Q: Contracts?

A: I have never done in my experience, I don’t recall.

Q: You would send the documents to?

A: Purchasing dept.

Q: For processing?

A: Yes they will do the necessary. I think they will be going through it and they will also be checking and that it will go to internal audit for their checks. And I think finally they will, I am not sure, I think they will give a purchase order number to the supplier and then they will also give another copy to accounts for payment. I think that’s what I know.

Q: Once you receive the goods or services from the supplier, what will happen?

A: Once the goods come in, they will have a delivery order, so I will sign that I received, and send that piece of document to accounts. The delivery note. And from there I wouldn’t know what they do, but I believe they will be making the payment

Q: Would your dept receive an invoice from the supplier?

A: Invoice, as in?

Q: Besides the DO would the supplier send the bill?

A: No.

Q: Do you know where?

A: Sometimes it comes with the delivery note, sometimes it goes straight to accounts.

Q: And if it comes together with the DO what would you do with the invoice?

A: Also submit to accounts.

Q: That is your understanding of purchase in relation to your donor relations dept?

A: Yes.

Exceptions

86. However, as noted in cross-examination by learned Senior Counsel and submitted by him, this procedure was not always followed. Examples of such departure include:

(a) Some design work;

(b) Trips abroad to Germany, and Samoa;

(c) Retainer of counsel and Queen’s Counsel;

(d) Consultancy fees.

Character of exceptions

87. I accept that these exceptions exist, and that the standard procedure would be departed from on occasion. However in all these instances, there were specific, concrete services or goods which were indisputably rendered or supplied. In the present case, as noted above, David Tan in the end could not point to a definitive instance of service or work that he had given, or set of such instances. His basis for the payment remained vague and in the air. While this is itself not indicative of anything wrongful, it was part of the context that the court will have to consider as a whole.

Adverse Inferences

88. As noted at the close of the Prosecution’s case, a reasonable inference could be drawn that the invoice was false, that the Appellant knew of such falsity, and intended to use the invoice with the intention to deceive NKF. It was noted that there could be other reasonable inferences, but that it was sufficient to point to one, to justify the calling of the defence.

89. At this stage of the proceedings, the test certainly is no longer one of reasonableness. Rather given the burden of proof required of the Prosecution, the test is higher, leading to a conclusion beyond a reasonable doubt. The question then is whether such inferences of the required standard can be drawn here.

90. The difference between the position at these two stages lies in the fact that the Appellant has chosen to remain silent. That silence affords the Court the drawing of inferences that appear proper, s 196(2) CPC:

If the Appellant —

(a) after being called upon by the court to give evidence or after he or the advocate representing him has informed the court that he will give evidence, refuses to be sworn or affirmed; or

(b) having been sworn or affirmed, without good cause refuses to answer any question,

the court, in determining whether the Appellant is guilty of the offence charged, may draw such inferences from the refusal as appear proper.

91. In Oh Laye Koh v PP [1994] SGCA 102, the Court stated:

Essentially, the process would have involved the trial judge's consideration of whether on the totality of the prosecution witnesses' evidence (as tested in cross-examination), together with any inference that could properly be drawn from the Appellant's silence, the Appellant's guilt could be established beyond reasonable doubt. It appeared to us that the trial judge was eminently justified in drawing an adverse inference from the appellant's silence. The circumstantial evidence stacked up against the appellant at the close of the prosecution case had been so damning in nature as to demand that he

proffered some explanation for the death of the girl who was last seen alive with him. This was so notwithstanding that the medical evidence could not establish for certain that the death was homicidal. Having chosen to remain silent, the appellant ran the risk of having an adverse inference drawn against him under s 196 (2) of the CPC. By not rebutting the evidence, which as it then stood would have warranted his conviction if unrebutted, the appellant's silence presented the trial judge with an additional factor to consider in assessing whether the appellant's guilt had been established beyond reasonable doubt. That is precisely the effect of an inference contemplated by s 196 (2). In the trial judge's own words, the appellant's silence was an additional link which completed the chain of evidence. By this, we took the trial judge to mean that the appellant's silence, considered cumulatively with the other evidence, was sufficient to establish the appellant's guilt beyond reasonable doubt.

92. I do not understand the Court of Appeal in Oh Laye Koh to mean that silence following the finding of a case to answer inevitably leads to a conclusion of guilt. Not all instances of silence, as noted by the defence, should lead to the drawing of an adverse inference. As submitted by learned Senior Counsel, adverse inferences have not been drawn in cases such as PP v Poh Oh Sim [1990] SLR 1047, Chan Kim Choi v PP[1991] SLR 34, and Taw Cheng Kong v PP [1998] 1 SLR 943 (appeal allowed on other grounds).

93. What is a proper inference has been explained in various cases. As noted by the Defence, in Haw Tua Tau, the Privy Council stated:

What inferences are proper to be drawn from an Appellant’s refusal to give evidence depend upon the circumstances of the particular case, and is a question to be decided by applying ordinary commonsense…”

94. That approach has been followed and endorsed in various cases, including Oh Laye Koh. What the Court must do then is to consider the circumstances of the specific case, particularly the state of the evidence, and determine whether an explanation is called for from the Appellant person. This does not mean that in all cases where an Appellant keeps silent that adverse inferences should be drawn. But where the state of evidence before the court leads the court to look to the Appellant to proffer an explanation, particularly if it is the Appellant only who can provide the missing information, his silence would usually be damning. I do not understand the Defence to offer a different approach, since learned Senior Counsel points to the fact that in some of the cases involving adverse inferences, we have the Appellant person being the last person for instance to have seen a deceased person alive. Certainly, that would be a prime example of a situation where information from the Appellant person would point one way or another, and his omission to provide that information leads to an inference that such information is in fact adverse to him.

95. I do not find the present case to differ from such murder cases; the Appellant here is the best placed person to provide information about the purpose and basis of the invoice, and the subsequent payment. His not doing so can only invite an adverse inference.

96. The context against which the question of inferences has to be looked at consists of the following:

a. David Tan received a call from the Appellant informing him that he would be paid $20,000;

b. In that call, David Tan was told to raise an invoice, stating that services were rendered for various Dialysis Centres in 2003;

c. This invoice of $20,000 was not the result of any concluded prior agreement before the phone call from the Appellant;

d. David Tan had provided various services without the expectation of charging for it;

e. NKF had procedures in place for the approval of payment for invoices;

f. That procedure was not adhered to. There were other instances of non-adherence but in these other instances there was no ambiguity or doubt about the work done.

g. DTC had not billed NKF previously or since;

h. Interior Design services involving David Tan had been billed by TID or its predecessors;

97. The purpose of the contextual facts listed above is to provide premises that could be taken with the silence of the Appellant in some instances, to give rise to adverse inferences against him. These contextual facts did not all lead to adverse inferences against the Appellant. For instance, (f), the non-adherence to procedure, did not in my mind support any conclusion that the Appellant was cognizant of wrongdoing, or anything of that nature. Given the existence of other exceptions to the normal procedure, (f) was merely a neutral point.

98. It should also be noted that the contextual facts I have identified did not cover whether or not design work or indeed ad hoc consultancy services had been done by David Tan or his companies. At the end of the day, I was of the view that while whether such work had indeed been done would be relevant, what was crucial was whether there was a link between any such work and the payment of the $20,000. David Tan had referred to an agreement or a statement made by the Appellant, as described in the KPMG transcript, but I could not accept the veracity of that version in view of the competing s 147(3) CPIB statements relied upon by the Prosecution. Since such evidence was not in play it could not be part of the context. The Appellant would have been in about the best position to explain and indeed provide support for the version described in the KPMG transcript. The absence of such evidence by the Appellant, which is a separate matter from any adverse inference that may drawn, renders it difficult to accept the veracity of what was recounted in that transcript.

99. There are a number of adverse inferences that can be drawn from these matters and the silence of the Appellant. That there are more than one inference does not mean that these are illegitimately drawn; a given set of facts can support a number of inferences that point towards a particular conclusion. What must be avoided unless necessary in the circumstances is the drawing of an inference on an inference, since that weakens the chain of probability.

100. The issue is whether there is a competing reasonable hypothesis that would raise a reasonable doubt, as considered by the Court of Appeal in Oh Laye Koh. It must be emphasised that the burden lay on the Prosecution. The Defence did not have to posit an explanation for the silence of the Appellant in itself. However, the Court will have to

consider the effect of that silence, and if no reasonable explanation is found that would raise such a doubt, then the silence would have to be given operative effect.

101. Learned Senior Counsel relied on the case of Sakthivel Punithavathi v. PP [2007] SGHC 54 to support the contention that it did not lie on the Defence to explain away shortcomings in the Prosecution’s case, in respect of David Tan’s evidence. That case did not assist in the present situation however, as I found that there was a core of evidence from David Tan that could be accepted by the Court, and which required an explanation from the Appellant. Not providing such an explanation leads to the following inference that there was no basis for the invoice and eventual payment, which in the context of payment on an invoice clearly carries with it the implication as well that the invoice was false, and the payment unsupported. There is no other reasonable inference to my mind that could be taken from the silence of the Appellant.

102. Learned Senior Counsel argued however that the present case is not one where the Appellant has to supply a gap in the information before the court. It was argued that David Tan would be the one to shed light. With respect, I do not find this to be the case. David Tan’s evidence could not in the end explain why the invoice was raised and why payment was approved by the Appellant. Furthermore, it cannot be the position that adverse inferences cannot be invoked simply because there might be another person with some knowledge or information about the facts of the case. What has to be examined is whether on the evidence adduced there is something that clearly lies within the knowledge of the accused person, and which would have an impact on the case.

103. Even on the most favourable evidence for the Appellant, namely that the payment was pursuant to an agreement or promise to pay for ad hoc work done by David Tan, a gap still remained to be filled in through the evidence of the appellant: the payment had to be linked to the promise. David Tan did not testify in court, or in any of the statements, whether to the CPIB or otherwise that he was told by the Appellant in the phone call that the payment was connected to the agreement or promise. David Tan surmised that it was so. In the circumstances, the best person to have established the link though would have been the Appellant. I have noted above, the Appellant is in the best position to explain the purpose of the payment, why he had authorised it, and why he had told David Tan to raise an invoice. David Tan’s evidence, even if it had been accurate and complete, would not have given the whole picture in respect of the charge. Such hypothetical ideal evidence would not have enlightened the Court on the knowledge of the Appellant, and his intention in asking David Tan to raise the invoice.

104. I turn then to the elements of the charge yet to be established.

Falsity of the invoice

105. Counsel contended services were indeed rendered by David Tan in 2003, and therefore the invoice was not false. However, this was premised on it being true that the invoice was connected to the various instances work relied upon by Counsel. However, the conclusion reached by the Court was that David Tan could not in fact point definitively to work that was the basis of the invoice, and therefore the issue remained open, and subject to the possibility of inferences being drawn.

106. Asking for an invoice to be raised as the Appellant did is something that particularly requires an explanation, since in most above board transactions, the invoice would follow an

agreement (either express or implied) to pay, if not the provision of services following such an agreement.

107. Even had the version given to KPMG been accepted, it would still have called for an explanation given its ambiguity and amorphousness. And as noted in the discussion of David Tan’s evidence above, the figure of $20,000 was not derived in any apparent way from the work said to have been done by David Tan for the consultancy work. David Tan did not give any evidence in this regard, and actually would not have known himself, without the Appellant or someone from NKF telling him, the derivation of the figure. The Appellant was uniquely placed to have given evidence on this question. Without that evidence, $20,000 is as good as any other figure. This is not to say that the burden was on the defence to show a proper justification for the $20,000. But in the face of evidence adduced, it would have been expected that the Appellant would have an explanation of how he came to a figure of $20,000 instead of any other sum. The other officers and employees of NKF could not have been able to supply this information. They were not, as brought out by the Defence in its questioning, the drivers of the ad hoc work said to have been done by David Tan; while some of them may have known about it, it was the Appellant who dealt with David Tan and would have best known the extent of the work done.

108. All these matters were such as to call for an explanation from the Appellant, who was in the best position, to explain what the invoice and the payment were for. His failure to so provide leads to an inference that this invoice was not truly for interior design services for various Dialysis Centres in 2003, and was therefore false.

That the Appellant knew the invoice was false and intended to mislead the NKF

109. That the Appellant knew the invoice was false and intended to mislead can be inferred from the facts identified above and the silence of the Appellant. The Appellant was the one who asked David Tan for the invoice. David Tan was unable to provide a basis for the invoice. The silence of the Appellant meant that the person who gave the instruction for the invoice to be provided, and who would have known what it was for, and why it attracted that specific figure, did not elucidate the matter. The inference from that silence is that there was no basis for it, and the Appellant knew this.

110. The Defence argued that payment was done in good faith because the Appellant had caused it to go through other persons, both officers of NKF as well as members of its board. It is true that there was no surreptitiousness about the eventual payment, at least in that the Appellant did not try to entirely circumvent the established procedures, although it was a departure, alongside other instances of departure, from what was to be done. But the absence of covertness did not necessarily mean that all was above board. What I found was that there was little questioning of the Appellant’s decision, particularly among the board members, and this was perhaps indicative of the trust placed in him. PW5 Loo Say Sun testified at NE 230D:

Q: And did you do anything to verify whether work was indeed done?

A: I didn’t do it, because I assumed that both the head of purchasing and finance would have done their work.

Q: And any other reason?

A: I must also add that I had worked with TT Durai for the past 9 years, and I had no reason to doubt his integrity.

PW6 Richard Yong similarly testified at NE 318:

Q: Going to ask about the $20,000 cheque you signed. You told the court that when you cosigned Mr Durai told you that the payment was for consultancy work that David Tan had done for NKF?

A: Yes. 12 noon.

Q: Told the court that he did not say anything else apart from that before you signed the cheque?

A: Yes.

Q: Prior to your signing the cheque, Durai had also told you he was going to pay David Tan for consultancy work?

A: Yes.

Q: When Durai told you prior to the signing of the cheque that he was going to pay David Tan for consultancy work, did you know or in your own mind know that the consultancy work was in relation for all the advice that Durai had got from David Tan for ID work for DC like cutting down costs of renovations, converting the DCs to include cancer treatment, inclusion of gyms in the DCs.

A: Basically, David Tan is our main ID. At the back of my mind, if he said it was for consultancy work, it must be for designing, refurbishing, and other things which deal with the Dialysis Centre whichDurai needs advice on.

111. That is about as far as the evidence went, and I could not find that the submission of the invoice into the payment process indicated bona fides on the part of the Appellant.

The Appellant intended to deceive the NKF.

112. There being no basis for the invoice, and thus the payment, and its use, the silence of the Appellant would also lead to the inference that it was intended that the NKF would be deceived.

Summary as to inferences

113. In all then, I was satisfied that the inferences that were proper from the silence of the Appellant were inferences adverse to him, and that these inferences support the establishment of the elements of the charge that were in contention.

114. In the end, the non-adherence to procedure did not lead to any inferences as such.

Possible explanations for the Appellant’s conduct

115. Defence did not argue, nor would I have thought it was open to be argued, that despite the silence of the Appellant, the Court had to consider possible explanations for his silence. That would have left the Court in engaging in nothing more than speculation.

Miscellaneous Issues

116. The Defence took issue with the apparent change in what came out in the opening statement and what was eventually adduced in evidence, particularly in respect of David Tan. I did not think that any such change would be material in affecting the establishment of the Prosecution’s case. David Tan’s different versions provided the setting for substitution under s 147(3) by both sides; in view of the difficulties posed by that witness, any change in the details of the Prosecution’s position was understandable.

Conclusion as to guilt

117. Having come to the conclusion therefore that the charge was made out, I accordingly found the Appellant guilty and convicted him.

Sentence

118. In sentencing the Appellant, I noted the importance of the fact that he was tried and convicted of a specific charge relating to the use of a particular invoice, which was found to be false. The sentence that the Court was to impose had to address that specific offence, and not for other wrongs or transgressions he may have been thought to have committed, but which were not proven or in fact even the subject of the trial.

119. The punishment to be handed down for that single charge must be one that is determined according to sound, accepted sentencing principles; the sentence must be one proportionate to the seriousness of the offence, and the culpability of the Appellant, taking into account recognised aggravating and mitigating factors.

The Seriousness of the Offence

120. Section 6 Prevention of Corruption Act reads:

6. If —

(a) any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business;

(b) any person corruptly gives or agrees to give or offers any gratification to any agent as an inducement or reward for doing or forbearing to do, or for having done or forborne to do any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business; or

(c) any person knowingly gives to an agent, or if an agent knowingly uses with intent to deceive his principal, any receipt, account or other document in respect of which the principal is interested, and which contains any statement which is false or erroneous or

defective in any material particular, and which to his knowledge is intended to mislead the principal,

he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both.

As noted by Thean J in Knight v PP [1992] 1 SLR 720, s 6(c) does not refer to the mental element of a corrupt intent. This is in contrast to ss 6(a) and 6(b). Despite the absence of that mental requirement, s 6(c) is a corruption offence in that it is part of a statute targeting corruption, and that the acts in question are corrupt in that they amount to a betrayal of the trust placed in the agent. I do not read Ong Beng Leong v PP[2005] SGHC 22 as indicating more than this, and I do not see any conflict between Ong, which is binding on me, and Sage v Eicholz [1919] 2 KB 171. The sentencing approach to be taken had to be with this offence characteristic in mind.

121. Aside from the difference in the mental element, s 6(c) also differs from the other two provisions in that it does not require gratification to be given or offered to the agent. These differences indicate that while s 6(c) prescribes punishment of the same range as the acceptance or giving of gratification with corrupt intent, thereby possessing potentially the same degree of seriousness as under s 6(a) or (b), the spectrum of criminal harm captured by s 6(c) may not be coterminous with the other two subsections.

122. This is to my mind highlighted in the two High Court decisions which are the only authorities giving guidance on sentences in this area. In Knight v PP, the Court there concluded that the act in question fell at the lower end of the scale, and imposed a day’s imprisonment and a fine of $10,000. As noted by the Prosecution, the Court also observed that sentences then generally involved fines. In Ong Beng Leong v PP, the initial sentences of 2 months’ imprisonment on each of 10 charges were reduced to two weeks’ imprisonment, with three sentences running consecutively, giving a total of six weeks’ imprisonment. While the High Court there noted a number of factors in that case which pointed to leniency, the very fact that a public officer in a position of responsibility was given a few weeks’ imprisonment, does show that some cases under s 6(c) are to be treated differently from other PCA cases, where sentences of a few months’ imprisonment are generally imposed as a starting point, even on guilty pleas for corrupt receipt of gratification by those in government positions.

123. But while the range of behaviour under s 6(c) may not always be as harmful or as serious as corrupt receipt of gratification for instance, the baseline is not all that low. What comes across from the decided cases is that there has to be an appreciation of the circumstances of the offence, namely the harm that can be caused, particularly to the institution involved, and the funds that are put in danger by the criminal activity.

124. For sentencing purposes, the position of a charity, such as the NKF, was to my mind similar to that of a governmental institution. Both involve the vesting of the trust of the public, and specifically both involve funds obtained from the public. The breach by an agent of his duty of loyalty to the principal in such cases involves as well breach by that agent of his ultimate duty to the public at large. The consequential harm by the criminal act is therefore palpable and significant. Offences under s 6(c) occurring in either charities or governmental institutions should to my mind be treated as involving a high degree of damage.

125. A deterrent element was to my mind called for by such possible harm that would be caused to the public trust in specific institutions as well as to the broader public sector by criminal acts of a similar nature. Knock-on effects will undoubtedly be felt, affecting the provision of services to those in need. The sentence imposed has to serve to protect against future criminal acts and such damage being caused.

126. The question of what response may be called for in other situations in which s 6(c) could be invoked, such as breach by private agents, need not be addressed here.

Culpability of the Appellant

127. Turning then to the culpability or criminal responsibility of the Appellant, a number of factors point towards a finding that the culpability was significant. These included his position as Chief Executive Officer, the operational head of the organisation in question, in whom substantial trust and responsibility was placed; that the amount in question is significant, and that he was the initiator of the criminal act.

128. A Chief Executive Officer of a charitable institution must perform his duties with utmost propriety. One who does not do so, and who in effect makes use of his position as the primary authority within the organisation to effect a breach of his duty to the board and ultimately to the public, attracts a high amount of blameworthiness.

129. The amount in question here was not small, though it is by no means at the higher end of the scale that we would see in these courts. The actual figure however would not fully reflect the fact that the funds were provided by the public for charitable purposes. The misuse of such funds indicates not only high offence seriousness as noted above, but also a high degree of blameworthiness here.

130. Finally, on the facts found by me, the Appellant was the initiator of the act, calling on David Tan to provide the false invoice. For a person in his position to set the criminal act in motion was to my mind particularly culpable.

131. On the other side of the scale though, I noted the absence of personal gain. Personal gain gives rise to a higher degree of culpability and harm justifying higher sentences. That such gain may be absent in cases under s 6(c) underlines the need to distinguish sentencing precedents under ss 6(a) and (b), and indeed from property offences such as theft or cheating.

132. It is also material that while I concluded that the invoice was not referable to the contributions of David Tan over the years, David Tan did indeed make various contributions which I found on the facts to have been made gratis. The purpose of the invoice and the subsequent payment was not thus as heinous as could be imagined in other instances where payment could be made without any benefit having been derived directly or indirectly, for instance.

Other Aggravating factors

133 Matters going towards the seriousness of the offence and the culpability of the Appellant have been dealt with above.

134. The fact that the Appellant claimed trial does deprive him of a reduction of sentence that a plea of guilt would have attracted, but claiming trial does not give reason to enhance a particular sentence. An Appellant person has the right to test the evidence against him. So

long as his conduct in the trial does not cross boundaries of propriety, the fact that a trial was required is not a reason for a heavier sentence to be imposed.

Other Mitigatory factors

135. The contributions and record of the Appellant spoke for themselves. These were not disputed by the prosecution. I accepted that the Appellant did work extensively for the NKF and kidney dialysis patients. A number of kidney patients and their families, as well as medical professionals, have contributed testimonials eloquently expressing their gratitude for the efforts of the Appellant. In particular, the efforts of the Appellant were, in the view of patients and their family, crucial to the better treatment of dialysis patients, and the alleviating of their pain and suffering.

136. The contributions made by a person to society are taken in the balance because they show erstwhile good character: Knight v PP [1992] SGHC 53. The seriousness of the offence is not diluted by the prior good conduct and work. Seriousness would be measured objectively according to, among others, the impact of the act, particularly the harm that results directly, as well as the consequences that may ripple through society. Neither to my mind, does good character and work affect the degree of responsibility since that would be determined largely by the culpability in terms of intent and purpose of the offender. Rather, good character and work factor in as considerations subsequently. It is a dispensation given by the Court taking into account prior contributions to society. And as noted in Xia Qin Lai v PP [1999] SGHC 232 positive contributions are what counts. In some circumstances, such as offences of grave seriousness, prior good conduct and work may not be given much weight.

137. In the present case, the Appellant relied on his contributions to the NKF and to the wider society. It could be argued that his actions negated whatever good he may have done. It may be that in some circumstances, involving defalcation for one’s own benefit, a criminal act may display such exploitative or abusive behaviour that it entirely erases whatever good may have been otherwise credited to the offender for is prior work. Based on the charge before me, on which I convicted the Appellant, I did not find that this was the case here. Again, I must emphasise, that the Appellant was to be sentenced only on the charge for which he was convicted and not for other matters which may have played out in the public arena, and much discussed in various fori.

138. Given that the contributions still remained to be counted, that would lead to a decrease of some amount in the sentence to be imposed. I am doubtful though that in any but the most borderline situations, should good character tip the scale between one kind of sentence, such as incarceration, and another, such as a fine. The considerations for one or the other are usually matters of public interest or protection, and should not be easily outweighed by prior conduct of the offender.

139. Other points raised were not to my mind significantly mitigatory. For instance, the agreement of the Appellant with the NKF over the various matters between them does not have any impact on the sentence to be handed down. Counsel has argued that it shows the essential good character of the Appellant. However, this arrangement does not touch on the subject matter of the charge, and in particular they do not reduce or abate the harm caused by the criminal act which he was convicted of. It is a wholly separate matter.

140. I also noted that the Appellant was a first offender, but the effect of this is not always significant, particularly where the context involves breach by a person in a position of

responsibility in a charity. Here, therefore, the absence of record would not lead to a large discount.

141. Repayment of funds may also be a material mitigating factor in some cases, showing remorse: Chen Weixiong Jerriek v PP [2003] SGHC 103. However here, the money in question was repaid by David Tan. As the money was not returned or repaid by the Appellant or through his efforts the benefit of such repayment does not accrue to him. The NKF may thus have been spared any loss in the end, but the benefit of that did not flow to the Appellant.

142. As for the other losses or consequences that have beset or may beset the Appellant, these were not to mind material in sentencing either; the possible loss of directorship, or being struck off the rolls, are matters that follow on from a criminal conviction.

The Sentence to be Imposed

143. Weighing the above matters and particularly bearing in mind the guidance of the High Court in Ong Beng Leong, the starting point here would be a custodial sentence. Even a high fine would not appropriately reflect the seriousness of the offence, the harm caused as well as the level of culpability. Deterrence is called for by the circumstances of the commission of the offence, given that the NKF is a charity, and the funds in question emanated from public donations.

144. The duration of the custodial term has to be more than minimal for the same reasons. A short custodial order, of the duration of a few days, approaching what was imposed in Knight would not be acceptable. Neither to my mind would a sentence of a few weeks as was imposed in Ong Beng Leong. I note that the High Court in Ong’s case considered that there were substantial factors pointing towards a sentence at the lower range, as compared to what was imposed by the trial court. In particular, the High Court was of the view that, despite the number of charges and the other circumstances, the essential point was that what was done was bordering on a technical breach. That could not be said of the present case.

145. Nonetheless, the custodial sentence here should not extend to anything approaching the maximum or even anything of more than a few months’ imprisonment. The sum involved was large, but not of a quantum that should attract sentences towards the maximum end. Furthermore, as in Ong’s case there was no gain accruing to the Appellant. And as I would emphasise again the Appellant is not to be punished here for anything other than the specific offence of which he was convicted.

146. I further conclude that deterrence is sufficiently served by a sentence which need not be crushing. I am mindful that even where deterrence is required, the sentence imposed should not be out of proportion to the crime committed. As noted in Tan Kay Beng v PP ][2006] SGHC 117 by VK Rajah J, at para 51:

… [T]he application of the principle of general deterrence should usually be tempered with proportionality and a notion of fairness to the Appellant as well save where public interest unyieldingly dictates otherwise.

Deterrence and proportionality would be served by a term of a few months’ imprisonment. I further note that nothing in the nature of specific deterrence against this particular offender is required.

147. Some reduction in sentence would be appropriate given his contributions, but its scale would be dampened by the countervailing need for deterrence and the harm caused by the offence.

148. Taking these matters above into account, and comparing the present case against the sentences inKnight and Ong Beng Leong, I am of the view that a sentence of 3 months’ imprisonment is appropriate, and accordingly I so imposed.

The issuing of grounds of decision

149. The verdict and sentence in this case were each accompanied by remarks, in accordance with current practice in the Subordinate Courts particularly in respect of cases with significant public interest, as this appeared to be.

150. The decision in Goh Lai Wak v PP [1994] SGCA 32 is of course noted in the Subordinate Courts. In that decision, the Court of Appeal, construing s 46 of the Supreme Court of Judicature Act, and followingAnkur Nath Ganguli v PP [1956] MLJ 206, was of the view that a High Court judge could not deliver grounds of decision if judgment had been given prior to it; an outline of conclusions without reasons would not run afoul of the prohibition however. This would also be the import of PP v Johannes Van Damme[1993] SGHC 90. Other cases have expressed the limitation to a mere statement of findings: for example,Anyanwu v PP [1994] SGCA 42.

151. Section 46 of the Supreme Court of Judicature Act reads:

Record of proceedings46. —(1) When a notice of appeal has been filed, the trial Judge shall, if he has not already written his judgment, record in writing the grounds of his decision, and such written judgment or grounds of decision shall form part of the record of the proceedings.

[58/73]

(2) As soon as possible after notice of appeal has been filed, the Registrar shall cause to be served on the appellant or his advocate and solicitor at his address for service specified under section 45 (2) (b) a notice that a copy of the record is available and can be had on applying for the same and on payment of the prescribed fee.

152. On one view, it may be possible to argue that that decision applies only to the High Court. The reasoning adopted in Goh Lai Wak was focussed solely on s 46 SCJA.

153. In comparison, ss 217, 218 and 219 CPC are the provisions governing judgments in criminal cases in the Subordinate Courts. These read as follows:

Judgment not to be altered.217. —(1) No court other than the High Court, when it has recorded its judgment, shall alter or review the judgment.

(2) A clerical error may be rectified at any time and any other mistake may be rectified at any time before the court rises for the day.

[216

Judgment to be explained to Appellant and copy supplied.218. The judgment shall be explained to the Appellant and, on his application, a copy of the judgment or, when he so desires, a translation in his own language, if practicable, shall be given to him without delay.

[217

Judgment to be filed with record.219. The original judgment shall be entered on and, if written, filed with the record of proceedings.

154. None of these provisions directly prohibit the giving of reasons before supplying grounds of decision. Section 217 prohibits the alteration of judgments, save for clerical errors. In recent times, that section has been primarily applied in respect of correction of revisable errors in sentencing, rather than preventing the issuing of grounds subsequent to remarks being made. I note that in Habee Bur Rahman v PP[1971] 2 MLJ 194, the prohibition against supplementing grounds of decision was founded on the equivalent of s 217 CPC. And it would also appear to be the basis of the approach in Loh Kwang Seang(1960) 26 MLJ 271, as noted in Van Damme; the former was concerned with s 272 of the then CPC, which is materially similar to the current s 217 CPC. Reference was also made in Van Damme to PP v Jon Thien MA 58 of 1964 (grounds not available), which presumably adopted a similar approach.

155. Alteration of judgment would seem to my mind to be concerned with the alteration of the verdict or sentence, rather than grounds. That is, s 217 is not concerned with the issuing of subsequent grounds.

156. Additionally, what are judgments and grounds of decision has to be clarified. The two terms are sometimes used interchangeably. In the context of s 46 SCJA, a distinction is drawn between the two, with ‘judgment’ apparently referring to either the verdict and sentence or to the full reasoned opinion given by a court when it delivers a decision; while ‘grounds of decision’ in comparison would refer to such an opinion delivered subsequent to the announcement of a decision. ‘Judgment’ may also refer to the decision itself. In the context of the Criminal Procedure Code, particularly s 217, it would seem that judgment should be taken as referring to the actual decision, i.e. guilt or innocence, or the sentence imposed. The prohibition against alteration then operates to ensure finality of the announcement of guilt or otherwise or the sentence imposed and its terms.

157. Even if the above decisions are to be interpreted as construing s 217 CPC as prohibiting alteration of judgments, I do not understand them to cover a situation where the decider expressly indicates that his or her remarks are to be taken as preliminary only, in other words, that elaboration is not prohibited when the decider indicates clearly that a final version will follow. In such a context, the remarks are clearly intended to be a summary only, with final elaboration to follow.

158. This broad approach is to my mind preferable simply because of the need for communication to the parties and the wider public, generally through the media. The purpose of giving these remarks is to communicate at the time of the verdict and sentence to the parties, and the wider public, often through the media, the basic reasoning of the court. Only providing conclusions is unsatisfactory, since there would be speculation about the reasoning employed by the court. The interest of the public in knowing at least the broad outline of the

reasoning process cannot be gainsaid. The public is by and large well educated and informed and ought to be able to follow the general lines of reasoning employed by the court. Not issuing remarks at all, or delaying the verdict to prepare full and final grounds of decision, does not meet the public interest. While judicial deliberations and decisions are not a matter for interference by the public, nonetheless citizens have a legitimate interest in being informed both of the outcome of a case and of the basis of that outcome. The giving of remarks at the time of the announcement of a judicial decision, provided it is clearly couched as being subject to elaboration, serves that interest without comprising justice or finality.

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TT Durai v PP [2007] SGDC