Luciana Lim v PP: Criminal Breach of Trust Sentencing Appeal
Luciana Lim Ying Ying appealed and the Public Prosecutor cross-appealed against the sentences imposed by the District Court for convictions on charges including criminal breach of trust, cheating, assisting in unlicensed moneylending, and using benefits of criminal conduct. The High Court, presided over by See Kee Oon JC, dismissed both appeals, upholding the original sentences.
1. Case Overview
1.1 Court
High Court1.2 Outcome
Appeals dismissed.
1.3 Case Type
Criminal
1.4 Judgment Type
Grounds of Decision
1.5 Jurisdiction
Singapore
1.6 Description
Appeal and cross-appeal against sentences for criminal breach of trust, cheating, moneylending offenses, and using benefits of criminal conduct. The court dismissed both appeals.
1.7 Decision Date
2. Parties and Outcomes
| Party Name | Role | Type | Outcome | Outcome Type | Counsels |
|---|---|---|---|---|---|
| Public Prosecutor | Respondent | Government Agency | Appeal Dismissed | Lost | Christopher Ong of Attorney-General’s Chambers Kok Shu-En of Attorney-General’s Chambers |
| Luciana Lim Ying Ying | Appellant | Individual | Appeal Dismissed | Lost |
3. Judges
| Judge Name | Title | Delivered Judgment |
|---|---|---|
| See Kee Oon | Judicial Commissioner | Yes |
4. Counsels
| Counsel Name | Organization |
|---|---|
| Christopher Ong | Attorney-General’s Chambers |
| Kok Shu-En | Attorney-General’s Chambers |
| Grace Morgan | Rodyk & Davidson LLP |
| Derek Kang | Rodyk & Davidson LLP |
| Geraldine Yeong | Rodyk & Davidson LLP |
4. Facts
- Accused was a relationship manager at Hock Tong Bee Pte Ltd (HTB).
- Accused misappropriated wines and spirits worth $6.4m from HTB.
- Accused sold the misappropriated alcohol to her clients.
- HTB did not receive payments for the alcohol sold by the accused.
- Accused used proceeds to pay off debts to unlicensed moneylenders.
- Accused provided ATM card to a runner of an unlicensed moneylender.
- Accused made fraudulent orders using customer's credit card details.
5. Formal Citations
- Lim Ying Ying Luciana v Public Prosecutor and another appeal, Magistrate’s Appeal Nos 9134 of 2015/1 and 9134 of 2015/2, [2016] SGHC 151
6. Timeline
| Date | Event |
|---|---|
| Accused employed at Hock Tong Bee Pte Ltd | |
| Accused deposited proceeds into mother's bank account | |
| Accused handed ATM card to unlicensed moneylender | |
| Accused began misappropriating wines and spirits | |
| Accused deposited proceeds into mother's bank account | |
| Accused misappropriating wines and spirits | |
| Accused placed fraudulent order using customer's credit card | |
| HTB noticed arrears and lodged police report | |
| Accused's matter first mentioned in court | |
| Accused pleaded guilty | |
| Accused sentenced by District Judge | |
| Registry sent letter to Amicus Curiae | |
| Appeals heard and dismissed | |
| Judgment issued |
7. Legal Issues
- Valuation of Misappropriated Goods
- Outcome: The court held that the retail price of the misappropriated goods was the appropriate measure of their value.
- Category: Substantive
- Sub-Issues:
- Retail price vs. replacement cost
- Measure of loss suffered by victim
- Mitigating Factors in Sentencing
- Outcome: The court found that the absence of a motive for personal enrichment was a mitigating factor that warranted a sentencing discount.
- Category: Substantive
- Sub-Issues:
- Absence of personal pecuniary benefit
- Motive for committing the offence
- Pressure from unlicensed moneylenders
- Level of Trust and Sophistication in Offence
- Outcome: The court concluded that the offence did not involve a high level of planning or a breach of a significantly high level of trust.
- Category: Substantive
- Sub-Issues:
- Abuse of position of trust
- Planning and execution of the offence
- Knowledge of internal processes
8. Remedies Sought
- Appeal against sentence
- Cross-appeal against sentence
9. Cause of Actions
- Criminal Breach of Trust
- Cheating
- Assisting in Unlicensed Moneylending
- Using Benefits of Criminal Conduct
10. Practice Areas
- Criminal Appeals
- White Collar Crime
11. Industries
- Wine and Spirits
- Retail
12. Cited Cases
| Case Name | Court | Affirmed | Citation | Jurisdiction | Significance |
|---|---|---|---|---|---|
| Public Prosecutor v Luciana Lim Ying Ying | District Court | Yes | [2015] SGDC 257 | Singapore | Cited as the District Judge's grounds of decision being appealed. |
| Public Prosecutor v Tan Thian Earn | High Court | Yes | [2016] 3 SLR 269 | Singapore | Cited for the definition of 'harm' and 'culpability' in sentencing. |
| R v Ascroft | English Court of Appeal | Yes | [2003] EWCA Crim 2365 | England and Wales | Cited regarding the test for determining the value of goods obtained dishonestly, but the court disagreed with the approach in this case. |
| United States v Wasz | United States Court of Appeals for the Seventh Circuit | Yes | 450 F.3d 720 (7th Cir. 2006) | United States | Cited for the principle that the retail price of stolen merchandise from retailers serves as a reasonable estimate of the loss. |
| United States v Machado | United States Court of Appeals for the Eleventh Circuit | Yes | 333 F.3d 1225 (11th Cir. 2003) | United States | Cited for the principle that loss must always be measured within the factual circumstances presented. |
| Narindar Singh so Malagar Singh v Public Prosecutor | Court of Appeal | Yes | [1996] 3 SLR(R) 318 | Singapore | Cited for the principle that the factual absence of personal pecuniary benefit is not, without more, of particular relevance to the question of sentence. |
| TT Durai v Public Prosecutor | District Court | Yes | [2007] SGDC 334 | Singapore | Cited for the principle that the misuse of funds meant for a charitable purpose and the concomitant loss of public confidence in charitable institutions that arises therefrom has been taken into account in the sentencing of offenders for the commission of CBT. |
| Goh Kah Heng (alias Shi Ming Yi) v Public Prosecutor and another matter | High Court | Yes | [2010] 4 SLR 258 | Singapore | Cited for the principle that the misuse of funds meant for a charitable purpose and the concomitant loss of public confidence in charitable institutions that arises therefrom has been taken into account in the sentencing of offenders for the commission of CBT. |
| Re Attorney-General’s Application (No 1) under s 26 of the Criminal Appeal Act; R v Ponfield; R v Scott; R v Ryan; R v Johnson | New South Wales Criminal Court of Appeal | Yes | [1999] NSWCCA 435 | Australia | Cited for the principle that in measuring the loss suffered by a victim, the court would have to consider the “value of the stolen property to the victim, whether that value is measured in terms of money or in terms of sentimental value”. |
| United States v Miller | United States Court of Appeals for the Fourth Circuit | Yes | 316 F.3d 495 (4th Cir. 2003) | United States | Cited for the principle that the loss need not be determined with precision. |
| Seaward III Frederick Oliver v Public Prosecutor | High Court | Yes | [1994] 3 SLR(R) 89 | Singapore | Cited as a case where the absence of a motive of personal gain appears to have been taken into account as a mitigating factor. |
| Foo Siang Wah Frederick v Public Prosecutor | High Court | Yes | [1999] 1 SLR(R) 996 | Singapore | Cited as a case where the absence of a motive of personal gain appears to have been taken into account as a mitigating factor. |
| Ong Beng Leong v Public Prosecutor | High Court | Yes | [2005] 1 SLR(R) 766 | Singapore | Cited as a case where the absence of a motive of personal gain appears to have been taken into account as a mitigating factor. |
| Public Prosecutor v Lim May Cheng | District Court | Yes | [2004] SGDC 85 | Singapore | Cited as a case where the absence of a motive of personal enrichment seems to have been held as not being of any mitigating value. |
| Public Prosecutor v Ooi Lye Guan | District Court | Yes | [2005] SGDC 228 | Singapore | Cited as a case where the absence of a motive of personal enrichment seems to have been held as not being of any mitigating value. |
| Public Prosecutor v Huang Hong Si | High Court | Yes | [2003] 3 SLR(R) 57 | Singapore | Cited for the principle that mitigating factors serve to indicate the relative seriousness of a crime in “specific relation to the offence upon which the accused was charged.” |
| Ding Si Yang v Public Prosecutor and another appeal | High Court | Yes | [2015] 2 SLR 229 | Singapore | Cited for the principle that if an offender intended to cause and does cause wrongful loss but is apprehended before he could realise the profits of his illegal acts, it is clear that this cannot count in his favour. |
| Vasentha d/o Joseph v Public Prosecutor | High Court | Yes | [2015] 5 SLR 122 | Singapore | Cited for the principle that the commission of an offence for personal gain has been held up as an aggravating factor. |
| Lim Siong Khee v Public Prosecutor | High Court | Yes | [2001] 1 SLR(R) 631 | Singapore | Cited for the principle that the commission of an offence out of malice or spite is an aggravating factor. |
| Zhao Zhipeng v Public Prosecutor | High Court | Yes | [2008] 4 SLR(R) 879 | Singapore | Cited for the principle that those motivated by fear will usually be found to be less blameworthy. |
| Lai Oei Mui Jenny v Public Prosecutor | High Court | Yes | [1993] 2 SLR(R) 406 | Singapore | Cited for the principle that in “exceptional” cases, the fact that the offence was motivated by a desire to satisfy a pressing financial need might also be considered a mitigating factor. |
| Ng Yang Sek v Public Prosecutor | High Court | Yes | [1997] 2 SLR(R) 816 | Singapore | Cited as an example of a case where the absence of an aggravating motive could be taken into account by the court as a factor that warrants the imposition of a lower sentence. |
| Public Prosecutor v AOM | High Court | Yes | [2011] 2 SLR 1057 | Singapore | Cited for the general principle that the absence of an aggravating factor is not itself a mitigating factor. |
| Kho Jabing v Public Prosecutor | Court of Appeal | Yes | [2016] 3 SLR 135 | Singapore | Cited for the principle that sentencing is not a mechanistic process, but a “fact-sensitive exercise in judicial discretion which involves balancing a myriad of considerations”. |
| Public Prosecutor v Lim Lee Eng Jansen | District Court | Yes | [2001] SGDC 188 | Singapore | Cited as an instructive case where the offender had done so out of a “misguided sense of altruism” to help K out in its time of need and that he had not obtained any direct pecuniary benefit for this. |
| Public Prosecutor v Teo Cheng Kiat | High Court | Yes | [2000] SGHC 129 | Singapore | Cited for the principle that in determining the level of trust reposed in a person, the court looks to substance and not to form; thus, a person with a humble title may occupy a high position of trust. |
| Public Prosecutor v Fernando Payagala Waduge Malitha Kumar | High Court | Yes | [2007] 2 SLR(R) 334 | Singapore | Cited for the principle that conduct is aggravating because it is evidence of purposeful offending (which is more blameworthy) and because it often leads to greater harm. |
| Soong Hee Sin v Public Prosecutor | High Court | Yes | [2001] 1 SLR(R) 475 | Singapore | Cited for the principle that the fact that she had abused her position as an employee to perpetrate the offences was already accounted for in the fact that she had been charged for CBT as a servant, which carries a higher maximum punishment, rather than the offence of CBT simpliciter. |
| Public Prosecutor v Yeo Kay Keng Matthew | District Court | Yes | [2011] SGDC 425 | Singapore | Cited as a comparable case in terms of modus operandi and level of culpability. |
| Public Prosecutor v Tan Cheng Yew and another appeal | High Court | Yes | [2013] 1 SLR 1095 | Singapore | Cited for the principle that while the punishments imposed for CBT offences ought to increase in severity with the amounts misappropriated, the sentences “do not bear a relationship of linear proportionality with the sums involved”. |
| Luong Thi Trang Hoang Kathleen v Public Prosecutor | High Court | Yes | [2010] 1 SLR 707 | Singapore | Cited for the principle that unreported decisions are generally viewed with circumspection. |
| Public Prosecutor v Kwek Chee Tong | District Court | Yes | [2001] SGDC 194 | Singapore | Cited as a comparable case in terms of the quantum of money misappropriated. |
13. Applicable Rules
| Rule Name |
|---|
| No applicable rules |
14. Applicable Statutes
| Statute Name | Jurisdiction |
|---|---|
| Penal Code (Cap 224, 2008 Rev Ed) s 408 | Singapore |
| Penal Code (Cap 224, 2008 Rev Ed) s 420 | Singapore |
| Moneylenders Act (Cap 188, 2010 Rev Ed) s 5(1) | Singapore |
| Moneylenders Act (Cap 188, 2010 Rev Ed) s 14(1) | Singapore |
| Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) s 47(1)(c) | Singapore |
| Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 124(1) | Singapore |
| Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 124(2) | Singapore |
| Penal Code (Cap 185, 1985 Rev Ed) s 477A | Singapore |
| Prevention of Corruption Act (Cap 241, 1993 Rev Ed) | Singapore |
| Penal Code s 74(1) | Singapore |
| Penal Code s 74(4)(b) | Singapore |
15. Key Terms and Keywords
15.1 Key Terms
- Criminal breach of trust
- Sentencing
- Mitigating factors
- Valuation of goods
- Pecuniary benefit
- Unlicensed moneylenders
- Abuse of trust
- Retail price
- Replacement cost
- Dishonest misappropriation
15.2 Keywords
- Criminal breach of trust
- Sentencing appeal
- Mitigating factors
- Valuation
- Moneylending
- Singapore High Court
17. Areas of Law
16. Subjects
- Criminal Law
- Sentencing
- Appeals
- Criminal Procedure