Court of Appeal reserves judgment in criminal reference brought by money mule in love scam

A seemingly simple case, involving a money mule in love scams, has engendered important questions of law of public interest which reached the highest court of the land on Friday (3 May).

49-year-old divorcee and real estate agent Osborn Yap was back in court on Friday morning, in a bid to reduce his jail term for offences committed under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“CDSA”).

The Court of Appeal – led by Judge of Appeal Andrew Phang and which included Judges of Appeal Judith Prakash and Steven Chong – reserved judgment after hearing one and a half hours of arguments from Yap’s lawyer, Mr Thong Chee Kun, and Deputy Public Prosecutor Christopher Ong appearing for the Prosecution.

Yap was convicted on one charge of dishonestly receiving US$420,000 (S$574,700) from one “Laura” he had known from an online date, with having reason to believe that the money was stolen property, under section 411(1) of the Penal Code.

For transferring out the money to various third parties under Laura’s instructions, Yap was convicted of charges under section 47(1)(b) of the CDSA, which makes it an offence for any person who converts or transfer any property that represents his benefits from criminal conduct.

Yap’s appeal against conviction and his 30-month jail term imposed by the District Judge, as well as the Prosecution’s appeal for a heavier jail term, were both dismissed by the High Court in November 2017.

Yap then sought leave to refer two questions of law of public interest for the Court of Appeal’s determination, which was granted in June last year, hence the present criminal reference.

At the hearing, Mr Thong argues that the CDSA charges against Yap was wrong in law, given that for a charge of transferring stolen property to be made out under s 47(1)(b), the offender must also have actual knowledge that the property was in fact stolen.

This was not the case in Yap’s situation, as he was convicted of dishonestly receiving stolen property on the basis that he ought to have reason to believe that the money was stolen (also known as constructive knowledge), and not having actual knowledge of such.

As such, the proper charges should have been under s 47(2)(b) of the CDSA, which makes it an offence for any person who converts or transfers property, which he knows or has reasonable grounds to believe that such property represents another person’s benefits from criminal conduct, as Mr Thong submitted.

There were also arguments in relation to the second question referred, as to the interpretation of the word “benefits”. Mr Thong made the point that it should mean “gains”, in the context of criminal conduct.

Mr Thong also criticised the Prosecution’s practice of preferring s 47(1) charges against offenders, with which Justice Chong agreed, apparently to avoid the hassle in scenarios where certification from the foreign authorities is required, as proof of foreign criminal conduct for offences under the CDSA.

When queried by the judges as to how the amendments to the charges would have impacted the sentence imposed on Yap, given that the sentencing range is no different on either charges, Mr Thong explained that it reflects a lower culpability on the part of Yap.

Mr Ong, on the other hand, rebutted with the point that the District Judge had already taken into account Yap’s low culpability as a mitigating factor in imposing the sentences for each charge and calibrating the overall jail term.

Yap is currently out on bail.