A person who laundered the proceeds not of his own crime but of others’ (hereafter known as a “secondary offender”), cannot be charged as a primary offender for “dealing with property representing his benefits from criminal conduct”, an offence under section 47(1) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“CDSA”).
The Court of Appeal made this ruling on Friday (12th July) afternoon, in the context of a criminal reference brought by 49-year-old divorcee and real estate agent Osborn Yap referring two questions of law of public interest for its determination:
“Question 1: Can a secondary offender like the applicant, who does not himself commit the offence from which the proceeds were originally derived but launders the proceeds of another person’s crime, be properly charged under s 47(1) instead of 47(2) of the CDSA? If not, how would the outcome be affected if the applicant were to be convicted under s 47(2) instead?
Question 2: If the answer to Question 1 is that the applicant can be charged under s 47(1) of the CDSA, do “his benefits from criminal conduct” under s 47(1) refer to the entire proceeds from the criminal conduct or the actual reward or advantage gained by him (if any)?”
(Section 47(2) of the CDSA applies where an offender deals with property that represents “another person’s benefits from criminal conduct”, instead of “his benefits from criminal conduct”.)
The Court of Appeal – comprising Judges of Appeal Andrew Phang, Judith Prakash and Steven Chong – answered the first question in the negative and the second question, therefore, did not arise for consideration.
Yap was initially convicted of one count of dishonestly receiving stolen property under section 411 of the Penal Code and five charges under section 47(1)(b) of the CDSA, for receiving stolen monies from, and transferring these monies to others on the instruction of, one “Laura”.
He was sentenced to an overall imprisonment term of 30 months, with the 24-month jail term for the section 411 charge and the 6-month jail term for one of the s 47(1)(b) charges running consecutively.
Justice Phang, in delivering the judgment of the court, rejected the Prosecution’s submissions that a secondary offender under s 411 of the Penal Code could be charged as a primary offender under s 47(1) of the CDSA, as that would cause s 47(2) of the CDSA to become redundant.
This was despite the Prosecution taking the position from the outset that s 47(1) and s 47(2) of the CDSA applied respectively to primary and secondary offenders, as was Parliament’s intention.
With this ruling from the apex court, the five s 47(1)(b) charges against Yap were wrong in law and therefore set aside.
The court, however, declined to convict Yap of charges under section 47(2)(b) of the CDSA instead, as the Prosecution had not tendered any foreign certificate to prove that a “foreign serious offence” falling within the meaning of “criminal conduct” had taken place.
The need for a foreign certificate is no longer a requirement when Parliament amended the CDSA in 2014; the requirement was nevertheless in place in Yap’s case as he committed the offences in 2013.
As a result, Yap’s jail term was reduced by 6 months, and he would only have to serve a 24-month jail term for the single charge of dishonestly receiving stolen property.
Yap was allowed to defer the commencement of his jail term by one week to settle his family matters. He will begin serving his jail term on 19th July.