Public Prosecutor v Low Kok Heng: Bankruptcy Offence, Innocent Intention Defence & Statutory Interpretation

In Public Prosecutor v Low Kok Heng, the High Court of Singapore heard an appeal by the Prosecution against the acquittal of Low Kok Heng, an undischarged bankrupt, on six charges of obtaining credit without disclosing his bankruptcy status, an offence under s 141(1)(a) of the Bankruptcy Act. Rajah JA allowed the appeal, clarifying the interpretation of the 'innocent intention' defence under s 133 of the Act. The court held that the defence requires proving both a lack of intent to defraud and a lack of intent to conceal one's affairs, not either one alone.

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

Singapore High Court case involving an undischarged bankrupt obtaining credit without disclosing his status. The court clarified the interpretation of the 'innocent intention' defence.

1.7 Decision Date

2. Parties and Outcomes

Party NameRoleTypeOutcomeOutcome TypeCounsels
Public ProsecutorAppellantGovernment AgencyAppeal AllowedWon
Vincent Leow of Attorney-General’s Chambers
Low Kok HengRespondentIndividualConvicted of all six charges under s 141(1)(a) of the ActLost

3. Judges

Judge NameTitleDelivered Judgment
V K RajahJustice of the Court of AppealYes

4. Counsels

Counsel NameOrganization
Vincent LeowAttorney-General’s Chambers
Foo Maw ShenYeo Wee Kiong Law Corporation
Ong Wei ChinYeo Wee Kiong Law Corporation

4. Facts

  1. The respondent, Low Kok Heng, was an undischarged bankrupt.
  2. Low Kok Heng faced charges for obtaining credit without disclosing his bankruptcy status, violating s 141(1)(a) of the Bankruptcy Act.
  3. Low Kok Heng was also charged for directly participating in the management of a company without leave of the High Court or written permission of the Official Assignee.
  4. Low Kok Heng had been operating a renovation business under the name IDNC Interior Design and Contracts before being adjudged a bankrupt.
  5. After Low Kok Heng became a bankrupt, his mother registered JL International Interior Design and Contracts, later altered to ‘JL-IDNC’.
  6. Low Kok Heng managed JL’s bank account, preparing cheques for his mother to sign.
  7. The charges arose from renovation works carried out by Low Kok Heng at three flats, owned by pre-bankruptcy clients.
  8. Low Kok Heng did not inform Selina Lee Miau Kwee and David Graeme Swadling of his bankrupt status.
  9. Wong Kooi Kong and his wife, Kwang Ai Kim, were aware that the respondent had been made a bankrupt in 2003 but were unaware whether the respondent remained an undischarged bankrupt when he renovated their flat.

5. Formal Citations

  1. Public Prosecutor v Low Kok Heng, MA 150/2006, [2007] SGHC 123

6. Timeline

DateEvent
Respondent started renovation business under the name of IDNC Interior Design and Contracts.
IDNC Interior Design and Contracts business failed.
Respondent was adjudicated a bankrupt.
Respondent was notified of his duties and responsibilities as an undischarged bankrupt at the Insolvency and Public Trustee’s Office.
Respondent’s mother, Goh Sia Lue, registered JL International Interior Design and Contracts.
Respondent prepared a quotation for Ng Hwee Hoon and Wong Chee Hon for renovation works.
Ng Hwee Hoon drew a cheque of $9,500 in the respondent’s name to fund his purchase of tiles and timber for the renovation works.
Renovation works started for Ng Hwee Hoon and Wong Chee Hon.
Wong Chee Hon found out that the respondent was a bankrupt.
Ng Hwee Hoon complained to IPTO about the respondent’s conduct.
Selina Lee Miau Kwee signed a confirmation document agreeing to the renovation works.
Selina Lee Miau Kwee handed the respondent a cheque of $14,400 payable to JL.
David Graeme Swadling issued another cheque for an amount of $21,600.
Renovation work at Selina Lee Miau Kwee’s flat commenced.
Cheque of $14,400 was deposited into JL’s bank account.
Renovation works at Selina Lee Miau Kwee’s flat were completed.
Defects at Selina Lee Miau Kwee’s flat were satisfactorily rectified.
Kwang Ai Kim signed a confirmation document on the renovation works to be done by the respondent.
JL’s name was altered to ‘JL-IDNC’.
Kwang Ai Kim issued a cash cheque in the sum of $7,860 to facilitate the purchase of materials.
Renovation works were commenced at Wong Kooi Kong and Kwang Ai Kim's flat.
Renovation works were completed at Wong Kooi Kong and Kwang Ai Kim's flat.
All minor rectification works were completed at Wong Kooi Kong and Kwang Ai Kim's flat.
District Arrest Cases Nos 19274, 19275, 19276, 19277, 19278 and 19279 of 2006 were filed.
Decision Date

7. Legal Issues

  1. Whether the defence of innocent intention under s 133 of the Bankruptcy Act requires an accused person to prove both that he had no intent to defraud and that he had no intent to conceal the state of his affairs, or whether it is sufficient simply to prove either that he had no intent to defraud or that he had no intent to conceal the state of his affairs.
    • Outcome: The court held that s 133 of the Act prescribes a single defence of innocent intention that comprises two limbs: the lack of intent to defraud and the lack of intent to conceal the state of a bankrupt’s affairs. Both these limbs must be established for a bankrupt accused to succeed in establishing the defence of innocent intention.
    • Category: Substantive
  2. Construction of statute
    • Outcome: The court clarified the principles of statutory interpretation, emphasizing the importance of a purposive approach and the limited application of the strict construction rule in penal statutes.
    • Category: Procedural
    • Sub-Issues:
      • Purposive approach
      • Strict construction rule of penal statutes
      • Whether 'or' could mean 'and'
      • Ambiguity
      • Extrinsic aids

8. Remedies Sought

  1. Conviction of the respondent on the charges under s 141(1)(a) of the Bankruptcy Act

9. Cause of Actions

  • Violation of s 141(1)(a) of the Bankruptcy Act (obtaining credit as an undischarged bankrupt without disclosure)

10. Practice Areas

  • Criminal Law
  • Insolvency Law

11. Industries

  • Construction

12. Cited Cases

Case NameCourtAffirmedCitationJurisdictionSignificance
Tang Yoke Kheng v Lek BenedictCourt of AppealNo[2005] 3 SLR 263SingaporeCited for the definition of 'to defraud' as an act or omission in which the fraudster deceives the innocent party so as to enrich the fraudster, or cause the innocent party to suffer a loss or detriment.
Forward Food Management Pte Ltd v PPHigh CourtYes[2002] 2 SLR 40SingaporeCited for the principle that the strict construction rule is only applied to ambiguous statutory provisions as a tool of last resort.
Teng Lang Khin v PPHigh CourtYes[1995] 1 SLR 372SingaporeEndorsed the strict construction rule, stating that if there was ambiguity in the definition of a term, the penal nature required that the ambiguity be resolved in favor of the appellant.
PP v Tsao Kok WahHigh CourtYes[2001] 1 SLR 666SingaporeClarified that ambiguity must prevail in the provision before recourse can be had to the strict construction rule.
Planmarine AG v Maritime and Port Authority of SingaporeCourt of AppealYes[1999] 2 SLR 1SingaporeRejected the wholesale application of the common law plain meaning rule in the light of s 9A of the Interpretation Act.
Volkswagen Financial Services Singapore Ltd v PPHigh CourtNo[2006] 2 SLR 539SingaporeExpressed disapproval over the citing of extrinsic materials, such as parliamentary speeches, where the language of a statutory provision was clear.
PP v Ong Ker SengHigh CourtYes[2001] 4 SLR 180SingaporeHighlighted the rationale behind the s 141(1)(a) Bankruptcy Act offence, which is to safeguard innocent creditors from lending money to undischarged bankrupts without any knowledge of the risk arising from the bankrupt’s status.
PP v R Sekhar s/o R G VanHigh CourtNo[2003] 2 SLR 456SingaporeInvolved some dishonesty and intent to defraud.
Tuck & Sons v PriesterQueen's Bench DivisionYes(1887) 19 QBD 629England and WalesHistorically quoted in support of the strict construction rule.
Smith v HughesQueen's Bench DivisionNo[1960] 1 WLR 830England and WalesCourts have often declined to apply the strict construction rule in its absolute form, and have instead adopted a purposive and broader interpretation of penal statutes.
Attorney-General’s Reference (No 1 of 1988)House of LordsNo[1989] AC 971England and WalesCourts have often declined to apply the strict construction rule in its absolute form, and have instead adopted a purposive and broader interpretation of penal statutes.
R v ParéSupreme Court of CanadaNo[1987] 2 SCR 618CanadaCourts have often declined to apply the strict construction rule in its absolute form, and have instead adopted a purposive and broader interpretation of penal statutes.
Regina v Aaron LyonsCourt for Crown Cases ReservedYesBell C C 38England and WalesSummarised the evolutionary shift from the historical and unduly austere approach to a more contemporary and reasonable one.
Director of Public Prosecutions v OttewellHouse of LordsYes[1970] AC 642England and WalesThe strict construction rule was affirmed but qualified in a measured tone.
Beckwith v RHigh Court of AustraliaYes(1976) 12 ALR 333AustraliaIn determining the meaning of a penal statute the ordinary rules of construction must be applied, but if the language of the statute remains ambiguous or doubtful the ambiguity or doubt may be resolved in favour of the subject.
R v HasselwanderSupreme Court of CanadaYes[1993] 2 SCR 398CanadaEven with penal statutes, the real intention of the Legislature must be sought, and the meaning of the penal provision arrived at by the courts must be compatible with the goals of the legislation.
The Sussex PeerageHouse of LordsNo(1844) 11 Cl & Fin 85United KingdomRequires one to expound the words of the statute in their natural and ordinary sense where the words are in themselves precise and unambiguous and to refer to the intention underlying the statute only where doubt arises from the words.
Gardner Smith Pty Ltd v Collector of Customs, VictoriaFederal Court of AustraliaYes(1986) 66 ALR 377AustraliaHeld that even where a provision is not obscure, extrinsic materials may be used to confirm its ordinary meaning.
Kioa v WestHigh Court of AustraliaYes(1985) 159 CLR 550AustraliaReference to extrinsic materials was used to reinforce the view that the primary object of the Administrative Decisions (Judicial Review) Act 1977 (Cth) was to achieve procedural reform and not to work a radical substantive change in the grounds on which administrative decisions were susceptible to challenge at common law.
Mills v MeekingHigh Court of AustraliaYes(1990) 91 ALR 16AustraliaExplained the effect of s 35(a) of the Interpretation of Legislation Act 1984 of Victoria (which is based on s 15AA of the Australian Act and corresponds to s 9A(1) of the Interpretation Act).
Kingston v Keprose Pty LtdNew South Wales Supreme CourtNo(1987) 11 NSWLR 404AustraliaPurposive construction often requires a sophisticated analysis to determine the legislative purpose and a discriminating judgment as to where the boundary of construction ends and legislation begins.
Re Bolton; Ex parte BeaneHigh Court of AustraliaYes(1987) 162 CLR 514AustraliaThe words of a Minister must not be substituted for the text of the law.
Commissioner of Australian Federal Police v CurranFederal Court of AustraliaYes(1984) 55 ALR 697AustraliaExtrinsic materials can be utilised to confirm the ordinary meaning of a particular provision where that provision is clear on its face, but they cannot be used to alter its meaning.
Rickerby v NicholsonNANo[1912] 1 IR 343IrelandThe word “or” does not necessarily imply that an alternative is given to the legatee.
Rex v Clarke and TomkinsNANo[1948] 1 WWR 75CanadaA separate offence is not created by the mere use of the disjunctive “or,” which is employed frequently to convey a descriptive meaning, to amplify, to escape from verbal rigidity, and sometimes to explain a situation or combination of circumstances more flexibly and comprehensively through the use of words as if they were pictures or symbols.
Kuah Kok Kim v Ernst & YoungCourt of AppealYes[1997] 1 SLR 169SingaporeA contextual non-disjunctive reading of the word “or” was also adopted by the Court of Appeal.
Lam Joon Shu v AGNANo[1993] 3 SLR 649SingaporeThere was no rule of construction preventing the conjunctive reading of the word “or”.
The King v Edward Fitzgerald, Duke of LeinsterKing's Bench DivisionYes[1923] 1 KB 311England and WalesThe object of the sub-section is to protect the person from whom the bankrupt seeks to obtain the credit.
Regina v HartleyCourt of AppealYes[1972] 2 QB 1England and WalesAny subsequent payments reducing the indebtedness may go to mitigation but cannot provide a defence.
R v DanielCourt of AppealNo[2002] EWCA Crim 959England and WalesThe lack of intent to defraud or to conceal the state of a bankrupt’s affairs constitutes a single defence to be established by the bankrupt accused.
Regina v OakesCourt of Criminal AppealYes[1959] 2 QB 350England and WalesThe fact that an enactment is penal does not necessarily prevent the statute from reading one conjunction in place of another even though this produces a result which is unfavourable to an accused person.

13. Applicable Rules

Rule Name
Rules of the Supreme Court (Cap 322, R 5, 1990 Ed) O 24 r 7A

14. Applicable Statutes

Statute NameJurisdiction
Bankruptcy Act (Cap 20, 2000 Rev Ed) s 141(1)(a)Singapore
Bankruptcy Act (Cap 20, 2000 Rev Ed) s 133Singapore
Business Registration Act (Cap 32, 2004 Rev Ed) s 26(1)Singapore
Interpretation Act (Cap 1, 2002 Rev Ed) s 9ASingapore
Bankruptcy Act (Cap 20, 1985 Rev Ed) s 111Singapore
Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 18Singapore

15. Key Terms and Keywords

15.1 Key Terms

  • Undischarged bankrupt
  • Obtaining credit
  • Innocent intention
  • Statutory interpretation
  • Purposive approach
  • Strict construction rule
  • Intent to defraud
  • Intent to conceal
  • Bankruptcy Act
  • Interpretation Act

15.2 Keywords

  • Bankruptcy
  • Obtaining credit
  • Innocent intention
  • Statutory interpretation
  • Singapore
  • Criminal law

17. Areas of Law

Area NameRelevance Score
Bankruptcy90
Insolvency Law90
Statutory Interpretation70
Criminal Law60

16. Subjects

  • Bankruptcy Offences
  • Statutory Interpretation
  • Defence of Innocent Intention