Public Prosecutor v R Sekhar: Undischarged Bankrupt, Obtaining Credit, Bankruptcy Act

In Public Prosecutor v R Sekhar s/o R G Van, the High Court of Singapore heard an appeal by the prosecution against the acquittal of R Sekhar, an undischarged bankrupt, on 11 charges of obtaining credit without disclosing his bankruptcy status, in violation of the Bankruptcy Act. Yong Pung How CJ amended the charges to a single charge and convicted R Sekhar, finding that the burden of proof lay on the bankrupt to prove disclosure. The court allowed the appeal and sentenced R Sekhar to one year's imprisonment.

1. Case Overview

1.1 Court

High Court

1.2 Outcome

Appeal allowed.

1.3 Case Type

Criminal

1.4 Judgment Type

Grounds of Decision

1.5 Jurisdiction

Singapore

1.6 Description

R Sekhar, an undischarged bankrupt, was convicted of obtaining credit without disclosing his bankruptcy status, violating the Bankruptcy Act.

1.7 Decision Date

1 June 2003

2. Parties and Outcomes

Party Name	Role	Type	Outcome	Outcome Type	Counsels
Public Prosecutor	Appellant	Government Agency	Appeal allowed	Won	Hui Choon Kuen
R Sekhar s/o R G Van	Respondent	Individual	Convicted	Lost	Ramesh Tiwary

3. Judges

Judge Name	Title	Delivered Judgment
Yong Pung How	Chief Justice	Yes

4. Counsels

Counsel Name	Organization
Hui Choon Kuen	Deputy Public Prosecutor
Ramesh Tiwary	Leo Fernando

4. Facts

R Sekhar was an undischarged bankrupt.
R Sekhar stayed at the Peninsula Hotel from July 4, 1997, to November 9, 1998.
R Sekhar incurred debts exceeding $500 without disclosing his bankruptcy status.
The hotel commenced an action to recover $23,874.94 from R Sekhar.
R Sekhar claimed the hotel knew of his bankruptcy status.
R Sekhar admitted to owing the hotel about $7,000.
The hotel locked R Sekhar out of his room on November 9, 1998.

5. Formal Citations

Public Prosecutor v R Sekhar s/o R G Van, MA 297/2002, [2003] SGHC 123

6. Timeline

Date	Event
1990-02-16	R Sekhar was first adjudged a bankrupt
1997-07-04	R Sekhar registered to stay at the Peninsula Hotel
1998-11-09	R Sekhar was locked out from his hotel room
1999-02-01	Judgment in default of appearance was obtained by the hotel
1999-08-05	A second bankruptcy order was made against R Sekhar
2002-01-01	Case filed: MA 297/2002
2003-06-02	Decision Date

7. Legal Issues

Amendment of Charge
- Outcome: The court amended the 11 original charges to a single charge.
- Category: Procedural
- Sub-Issues:
  - Power of High Court to amend charge
  - Relevant considerations for amending a charge
- Related Cases:
  - [2000] 2 SLR 645
Admissibility of Evidence
- Outcome: The court found the summaries of invoices inadmissible under section 35 of the Evidence Act.
- Category: Substantive
- Sub-Issues:
  - Hearsay evidence
  - Summaries of invoices as computer printouts
- Related Cases:
  - [2002] 1 SLR 129
Onus of Proof
- Outcome: The court held that the onus lay on the undischarged bankrupt to show that he had disclosed his bankruptcy status to the proposed lender.
- Category: Substantive
- Sub-Issues:
  - Burden of proving disclosure of status to lender
  - Negative averment
- Related Cases:
  - [1994] 1 SLR 231
  - [1987] AC 352
  - [2001] 4 SLR 180
Obtaining Credit Without Disclosure
- Outcome: The court found the accused guilty of obtaining credit without disclosing his bankruptcy status.
- Category: Substantive
- Related Cases:
  - [2001] 4 SLR 180

8. Remedies Sought

Conviction
Imprisonment

9. Cause of Actions

Violation of Section 141(1)(a) of the Bankruptcy Act

10. Practice Areas

Criminal Law
Bankruptcy Law

11. Industries

Hospitality

12. Cited Cases

Case Name	Court	Affirmed	Citation	Jurisdiction	Significance
Highway Video Pte Ltd v PP	N/A	Yes	[2002] 1 SLR 129	Singapore	Cited regarding the unreliability of hearsay evidence.
PP v Ong Ker Seng	N/A	Yes	[2001] 4 SLR 180	Singapore	Cited for the disclosure guidelines formulated in the case, which do not necessarily require a bankrupt to disclose his bankruptcy at the precise moment when credit is obtained.
PP v Kum Chee Cheong	Court of Appeal	Yes	[1994] 1 SLR 231	Singapore	Cited for the principle that a statute can place a burden of proof on the accused to prove the positive of a negative averment.
R v Hunt (Richard)	N/A	Yes	[1987] AC 352	N/A	Cited regarding the considerations for determining where the burden of proof lies when an enactment prohibits an act save in specified circumstances.
R v Zeitlin	N/A	Yes	(1932)23 Cr App R 163	N/A	Cited for the principle that disclosure by the undischarged bankrupt need not be at the very moment when credit is obtained, provided it was made at a reasonable time before the transaction took place.
R v Duke of Leinster	N/A	Yes	[1924] 1 KB 311	N/A	Cited for the principle that disclosure must be made in fact to the person giving the credit.
Er Joo Nguang v PP	N/A	Yes	[2000] 2 SLR 645	Singapore	Cited regarding the High Court's power to amend a charge on appeal.
R v Schefelaar	N/A	Yes	[1939] SSLR 221	N/A	Cited for the view that in offences of obtaining credit without disclosure, imprisonment is more appropriate than a fine.
Lai Oei Mui Jenny @ Tan Siew Hong v PP	N/A	Yes	[1993] 3 SLR 305	Singapore	Cited for the principle that hardship on the family as a result of imprisonment is generally not a good mitigating factor.

13. Applicable Rules

Rule Name
No applicable rules

14. Applicable Statutes

Statute Name	Jurisdiction
Bankruptcy Act (Cap 20, 1996 Rev Ed ) s 141(1)(a)	Singapore
Bankruptcy Act (Cap 20, 1996 Rev Ed ) s 146	Singapore
Evidence Act (Cap 97, 1997 Rev Ed) s 35	Singapore

15. Key Terms and Keywords

15.1 Key Terms

Undischarged bankrupt
Obtaining credit
Disclosure
Bankruptcy Act
Hearsay evidence
Onus of proof
Monthly summaries of invoices

15.2 Keywords

Bankruptcy
Obtaining Credit
Disclosure
Criminal Law
Singapore
High Court

16. Subjects

Bankruptcy
Criminal Law
Evidence Law

17. Areas of Law

Criminal Procedure
Sentencing
Evidence
Bankruptcy Law