1 The respondent pleaded guilty in a District Court to five charges of falsification of accounts under s 477A of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). Seven similar charges were taken into consideration for the purpose of sentencing.

2  The District Judge (“DJ”) imposed sentences of 12 weeks’ imprisonment for four charges, and 24 weeks’ imprisonment for the fifth charge, which involved the highest amount of loss ($558,010) to Lukoil Asia-Pacific Pte Ltd (“Lukoil”), the respondent’s employer. The DJ’s grounds of decision are reported as Public Prosecutor v David John Kidd [2020] SGDC 83 (“GD”). He took into account the two weeks that the respondent had spent in remand and ordered two imprisonment terms of 12 and 24 weeks to run consecutively. The aggregate sentence was therefore 36 weeks’ imprisonment.

3 The prosecution appealed against the sentence, and submitted that the sentences were manifestly inadequate and an enhanced sentence of at least 18 months’ imprisonment in total was warranted. This is consistent with the sentence that was sought below.

4 After hearing the parties’ submissions, I dismissed the appeal. I gave brief reasons orally for my decision at the hearing on 20 August 2020, and I now set out my full grounds of decision.

17 The appellant argued that the sentence imposed was inadequate as a deterrent, as the DJ had not given due weight to the aggravating factors. Among these were the scale of the offences and number of similar offences committed over a fairly sustained period, the level of premeditation, execution and concealment, and the fact that the respondent occupied a high position of trust as the sole trader for Lukoil’s Transocean account. The respondent had entered irregular trades into Lukoil’s internal system, falsified mark-to-market updates to cover up the losses, and persisted in repeating this process, resulting in losses to the company being compounded. The false projected gains were factored into Lukoil’s profit and loss statements, helping to conceal the losses caused by the late hedging. The appellant submitted that the respondent knew what Lukoil’s risk department would be looking for in the company’s profit and loss statements, and deployed a method that would circumvent detection, revealing some level of deviousness.

18 The appellant also argued that the DJ had erred in placing too much emphasis on the respondent’s position in the company’s hierarchy, instead of the amount of trust placed in him as the sole trader in charge of the Transocean contract. The DJ’s reasoning that the abuse of trust was less egregious than other precedent cases on the basis of the respondent’s relative position in the company’s hierarchy was flawed, as the court should look to substance and not form in determining the level of trust reposed in a person, in line with Lim Ying Ying Luciana v Public Prosecutor and another appeal [2016] 4 SLR 1220 at [65]. In addition, the DJ failed to give due weight to the fact that the respondent was highly uncooperative and had deliberately impeded investigations for about a year, including deflecting possible blame to his colleagues, before eventually coming clean in 2018. Finally, the respondent did not make any restitution.

19 The respondent argued that the loss caused to the company was relatively low when compared to the monthly volume and value of trades transacted by the company. The respondent also averred that the commission of the offences was premeditated but unsophisticated, and that the company could have easily detected these offences had reconciliation been done in a timely manner. Further, even though the respondent used his position as an employee in order to commit the offences, he was not placed in an elevated position of trust. It was submitted that the appellant had overstated the case by arguing that an international conglomerate like Lukoil with its own system of checks and balances had reposed a high degree of trust and confidence in a trader whose job was primarily to enter data into the system. The respondent submitted that his role was entirely administrative or clerical in nature.

20 The losses caused by the respondent’s irregular trades were substantial, and he resorted to falsification of accounts to conceal these losses. However, I agreed with the respondent that the loss caused to Lukoil was relatively low, when viewed in the context of the aggregate volume and value of trades transacted by Lukoil. This context is relevant when assessing the extent and actual impact of the loss that the respondent had caused. The offences were premeditated but unsophisticated in their execution, and it was a matter of time before Lukoil would have been able to uncover the respondent’s actions.

21 I accepted that the respondent was undoubtedly in a position of trust as the sole trader for the Transocean account. I also accepted that in determining the severity of the abuse of trust, the court should look to substance and not to form. Nevertheless, the respondent was a junior and relatively inexperienced trader, and having regard again to the context of Lukoil’s volume and value of trades transacted, he was not placed in a particularly elevated position of trust or authority. I was not persuaded that his abuse of trust was a particularly strong aggravating factor. I did not agree however with his attempt to further downplay his responsibility by suggesting that he was merely performing an administrative or clerical role.

22 It cannot be disputed that the respondent was uncooperative when investigations began, and that significant investigative resources had to be expended as a result. Notwithstanding that, he did eventually cooperate and had elected to plead guilty. The lack of cooperation given by an offender to the authorities, such as by not providing information, would not generally be an aggravating factor (see, eg, Public Prosecutor v Muhammad Ikrimah bin Muhammad Adrian Rogelio Galaura [2020] SGHC 107 at [58]). It is possible that in an appropriate case with more egregious facts, an offender’s lack of cooperation could be an aggravating factor, such as where he deliberately furnishes false information, where he attempts to wrongly divert blame to others, or where he attempts to conceal or dispose of evidence. Much depends on the facts of each case.

23 In the present case, it was revealed in the SOF that the respondent did not provide information to the authorities, such that significant investigative resources had to be expended. He had also falsely stated in his statements that his colleagues could have performed the irregular trades. However, the SOF did not specify the extent or particulars of such falsehoods, and the respondent was also not charged with an offence of furnishing false information to a public servant under s 182 of the Penal Code. From the facts available before the court, it is not clear that the extent of the respondent’s lack of cooperation had gone significantly beyond his failure to provide information. It would not be appropriate in this case for the respondent’s admitted lack of cooperation to be an aggravating factor.

24 In this connection, the DJ had also pertinently noted (at [1]–[4] and [30] of the GD) that 18 other cheating charges were initially preferred against the respondent, resulting in him facing 30 charges in total. The 18 cheating charges were eventually all withdrawn on the date the respondent pleaded guilty, as they may not have amounted to offences at all. Conceivably, considerable investigative resources were channelled into these 18 charges when they were not sustainable. At any rate, there was no suggestion that the respondent’s lack of cooperation had caused such investigations to be undertaken.

25 That said, the respondent’s lack of cooperation would have implications on the mitigating weight that would have been afforded by his decision to plead guilty. In Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Ng Kean Meng Terence”) at [71], it was held that the court should have regard to the justifications set out in Regina v Millberry [2003] 1 WLR 546 (“Millberry”) together with all other offender-specific factors in assessing the mitigatory weight to be accorded to a plea of guilt. One of the Millberry justifications for reducing sentence on the basis of a plea of guilt was where the plea could be a “subjective expression of genuine remorse and contrition, which [could] be taken into account as a personal mitigating factor” (Ng Kean Meng Terence at [66]). Here, any mitigatory weight that would have been accorded to the respondent on the basis that he had pleaded guilty out of remorse would be unpersuasive, although it still could be said that the respondent’s plea of guilt saved resources that would otherwise have been expended on a trial. I note that the DJ justifiably did not place significant mitigating weight on the respondent’s plea of guilt.

26 The respondent did not make any restitution as he did not have the means to do so. Moreover, it should be borne in mind that he was convicted of charges involving falsification of accounts; the charges did not involve personal enrichment, theft or dishonest misappropriation of Lukoil’s funds and he did not actually obtain any pecuniary benefit from his offences. It would not be correct to characterise his failure to make restitution as an aggravating factor on the facts in this case.

27 The appellant submitted that the DJ failed to recognise that the respondent’s offences were motivated by financial benefit, and that significant imprisonment terms had been imposed on offenders in precedent cases even where they did not receive direct pecuniary benefit. According to the appellant, the respondent was gambling with his employer’s money in the hope that larger profits would be earned, such that he would be rewarded with a bonus at the end of the year.

28 The respondent argued that his motive was to help the company, and that he did not commit the offences for personal gain. Whilst it was generally true that a company’s performance could factor into the quantum of an employee’s bonus, the SOF revealed that the respondent would likely lose his job if the performance on his book remained poor. The respondent was therefore merely trying to improve the book’s performance so as to retain his job. The respondent further submitted that he had already accepted a job offer at Trafigura by the time his late hedging resulted in the largest loss of $558,010, which showed that he was not motivated by the hopes of gaining any profit for himself. The respondent’s actions should be characterised as a misguided attempt to benefit Lukoil even though he would not himself be around to gain from any improvement in the company’s performance.

29 While the respondent had admitted that the prospect of some possible financial benefit was among his motivations for committing the offences, it would appear that he was principally motivated to help Lukoil improve its bottom line. The fact that Lukoil’s fuel oil team was performing poorly and had its accounts in the red in 2016 was not disputed by the appellant. It was also not disputed that the respondent risked losing his job given these circumstances. Hence it could not be fairly said that because the respondent was looking out for himself, he was incentivised to commit the offences largely for financial gain.

30 Nevertheless, the respondent’s decision to resign from Lukoil (ostensibly because he had been headhunted by Trafigura) and unilaterally terminate the Transocean contract prematurely after recording the highest loss amount of $558,010 betrayed a cynical and desperate attempt to avoid the consequences of his conduct. I did not see how it could seriously be suggested that his resignation in such circumstances would corroborate his purported lack of interest in any potential bonus payout.

31 The DJ had rightly taken into account the various considerations that would go toward assessing whether the respondent had committed the offences for his personal benefit. The DJ considered that while the respondent might be financially rewarded if the company made a profit and was concerned about losing his job, he did not receive any actual monetary benefit from committing the offences. I did not think that the DJ had erred in finding that the respondent did not commit the offences primarily for personal gain, and therefore rightly did not place any aggravating weight on this factor. As for the precedent cases cited by the appellant, those cases were clearly distinguishable on the facts. I elaborate on this point at [53]–[59] below.

34 It was discernible from the GD that the DJ had endeavoured to analyse the analogous precedents and derive the applicable principles in a systematic and methodical fashion.

35 In my opinion, the DJ had rightly referred to the three Mitsui oil cases in calibrating the respondent’s sentences. The offenders in those cases also did not receive any direct financial benefit, and a far higher amount of loss was involved. In particular, the respondent’s culpability was much lower than that of the offender in Noriyuki Yamazaki, who was characterised as a mastermind and main trader. The DJ had also duly considered Sabastian Anthony Samy and was doubtful of its persuasiveness. Comparing that case with the respondent’s case based on the available case information, it would appear that the respondent’s culpability was much lower.

36 Having reviewed the sentencing precedents, the DJ reasoned that the global sentence should be higher than the 20 weeks’ imprisonment imposed in Takayoshi Wada, but significantly lower than the 18 months and two years’ imprisonment imposed respectively in Takahashi Masatsugu and Noriyuki Yamazaki. He further found the present case to be more aggravated than Jansen Lim, and the sentence therefore had to be higher than the six months’ imprisonment that would have been imposed on the offender in that case (without taking into account the remand period). With these considerations in mind, he eventually decided on the sentences of 12 and 24 weeks’ imprisonment, resulting in the aggregate sentence of 36 weeks.

37 I agreed with the DJ’s finding that the gravity of the offences in the present case was not as serious as in other precedent cases where offenders had acted in their own self-interest and for direct personal benefit, and/or where they had embarked upon more egregious, sophisticated and surreptitious schemes involving far more criminal charges and caused huge losses while occupying positions of greater trust and accountability. I turn next to examine the relevant precedent cases more closely.

38 I begin with the Mitsui Oil cases. These cases do provide some guidance on the appropriate sentence to be imposed in the present case, even though no Grounds of Decision were issued by the High Court to shed light on the reasoning behind the reduced sentences on appeal in the cases of Noriyuki Yamazaki and Takahashi Masatsugu.

42 The three Mitsui oil cases are similar to the present case in that they involved charges that relate to the falsification of information to either conceal trading losses or fluctuations in profit and loss amounts from the company, and where such provision of false information prevented the company from being aware of the true state of its accounts. This thereby paved the way for trading to continue and for losses incurred to increase. In the present case, the falsification of the mark-to-market updates prevented Lukoil from knowing about the losses caused by the respondent’s persistent decision to not hedge contemporaneously, thereby allowing the irregular trading to continue and eventually causing Lukoil a substantial amount of loss.

43 As noted at [36] above, the DJ had found the present case to be more aggravated than Takayoshi Wada, but less so than Takahashi Masatsugu and Noriyuki Yamazaki. Unlike the offenders in Takahashi Masatsugu and Noriyuki Yamazaki, the respondent occupied a significantly lower position in the company’s hierarchy, falsified information over a shorter period of time and on far fewer occasions, and concealed losses of much smaller quantums. In particular, the offender in Noriyuki Yamazaki was the main trader in MOA, and was given full control over the execution of his own trades. By falsifying information such that he could exceed the loss limits set by the company, he had abused the trust that had been reposed in him, and exposed MOA to a significant risk of incurring colossal losses – an outcome which did eventually come to pass. In contrast with the offender in Takahashi Masatsugu, the respondent did not operate with an accomplice and did not hold a senior supervisory role. As for Takayoshi Wada, the offender in that case did not personally orchestrate the falsification of any information. Thus, the respondent’s culpability was clearly higher. I saw no error in the DJ’s approach in considering the Mitsui Oil cases to determine the appropriate sentence in the present case.

44 The appellant relied heavily on Sabastian Anthony Samy, arguing that this case was the most appropriate reference point in determining the sentence for the present case. It was submitted that Sabastian Anthony Samy was the closest case comparison because both offenders had committed the s 477A offences for the same purpose, that being to conceal losses they had caused to their respective companies. However, I did not agree that Sabastian Anthony Samy should be considered the most relevant precedent.

45 As Sabastian Anthony Samy was an unreported decision, the following summary of facts of the case is drawn from Noriyuki Yamazaki as a secondary source (see [48] – [57]). The offender was convicted on his plea of guilt to two charges under s 477A of the Penal Code, with 140 similar charges taken into consideration for sentencing. The offender was the general manager of the company. Primarily due to his poor judgment, the Limited Exposure Trading (“LET”) accounts for trading in gold futures suffered a huge loss. He told this to one Chan in November 1982 and together, they decided not to disclose this loss to the Melbourne office but instead to try to recoup the loss. In order to continue trading, they signed letters of instruction to effect unauthorised transfers of funds from other portfolio accounts to the LET accounts. The duo then altered the statements of accounts of these affected accounts before transmitting them to the Melbourne office so as to conceal the unauthorised transfers. However, losses continued to be incurred. They only disclosed the actual state of affairs in April 1984 when the company’s clients decided to terminate their engagement with the company and sought to withdraw their balances. The court considered that the duo were committed to conceal the unauthorised transfers of clients’ money, and that their acts had resulted in huge losses amounting to $2,741,757.45. Although they did not commit the offences to enrich themselves, it was equally true that their offences caused significant losses of monies belonging to the company’s clients. The offender was sentenced to a global sentence of three years’ imprisonment. His appeal was dismissed and no written reasons were furnished by the High Court.

46 Whilst not irrelevant as a point of comparison, it was apparent that the respondent’s culpability was not as high as the offender in Sabastian Anthony Samy. As pointed out by the DJ, the offender had actively falsified documents so as to cover up losses of over $2.7 million which were a result of unauthorised transfers made by him. He worked with an accomplice, and his actions displayed clear premeditation. The offender also faced 142 charges, and he had committed the offences over a longer period of twelve months (GD at [33]).

47 The appellant submitted that the offences in the present case were similarly highly premeditated and involved “sophisticated execution and concealment”. However, I did not accept that these assertions were supported by the facts. Quite apart from covering up the burgeoning losses in the LET accounts, the offender in Sabastian Anthony Samy had falsified documents so as to conceal unauthorised transfers of money belonging to the company’s clients. These transfers were effected to fund his continued attempts at further trading to recoup the losses in the LET accounts. By systematically making and concealing these unauthorised transfers, the offender depleted the clients’ moneys in the local stock portfolio accounts before further drawing on monies in the International Portfolio accounts. Despite the accumulating losses, the offender continued to effect these transfers over 142 occasions, incurring an increasingly large quantum of loss with every transfer. In contrast, the respondent recorded false mark-to-market updates in the system in order to conceal losses caused by trades which he failed to contemporaneously hedge. The respondent’s actions were certainly also premeditated, but the level of sophistication of his plans was not in any way comparable to the elaborate scheme that was planned by the offender in Sabastian Anthony Samy.

48  Further, while the offender in Sabastian Anthony Samy did not commit the offences primarily for direct pecuniary benefit, the court had found that he did commit these offences to protect his personal interests. He was concerned about his international reputation and recognition as an expert in the gold trading market, and the impact of the losses on his career. The respondent, on the other hand, was merely a junior trader in Lukoil. In terms of the level of trust reposed and the amount of personal benefit each stood to gain, the offender in Sabastian Anthony Samy was significantly more culpable. Therefore, on the whole, I did not think that the facts supported the appellant’s assertion that Sabastian Anthony Samy was factually similar to the present case and should have been the most appropriate reference point. The DJ had carefully considered Sabastian Anthony Samy, compared it to the present case, and had given the precedent its due weight.

49 On the other hand, the respondent relied primarily on Jansen Lim and argued that it was factually similar to the present case. However, I was of the view that Jansen Lim remains a highly exceptional case on its facts.

51 To my mind, the facts in the present case were clearly more aggravated than those in Jansen Lim. As noted by the DJ, the High Court in Tan Puay Boon had also commented at [48] that the offences in Jansen Lim were “unsophisticated and unsurreptitious, with the main intention of conferring benefit on a bank customer”. In contrast, the offences in the present case involved some level of surreptitiousness in the respondent’s continued attempts to cover up the losses caused by the irregular trades. Whilst the respondent did not obtain any direct pecuniary benefit from his offences, it could be said that the ways in which his interests might be furthered by the offences, such as an increased likelihood of obtaining a bonus or of not losing his job, were more evident than any benefit which the offender in Jansen Lim stood to gain.

52  The appellant argued that the DJ had erred by relying on Jansen Lim as a reference point. I did not think that this argument was sustainable. The DJ explicitly stated at [47] of the GD that “in so far as the case of Jansen Lim could serve as a reference point, it was to show that the global sentence that should be imposed in the present case should be more than even the six months’ imprisonment sentence that may otherwise have been imposed in Jansen Lim”, had the offender in Jansen Lim not already spent time in remand. The DJ had taken care to distinguish Jansen Lim as a precedent and had explained why he found at [44] that the facts in that case were “clearly more benign” and the mitigating factors therein “undoubtedly more compelling”. He then calibrated the global sentence in the present case upwards accordingly. I found no error in the DJ’s approach, and no reason to fault his reference to Jansen Lim.

59 Overall, in my assessment, the DJ had not erred in not taking reference from the sentencing precedents with dissimilar facts. He had correctly addressed his mind to the specific aggravating and mitigating factors and accorded them appropriate weight. He was also conscious of the need for deterrence; as he explained at [57] of his GD, he sought to achieve a rational balance of the sentencing considerations having regard to the respondent’s culpability.

60 I was of the view that the main arguments raised on appeal had been duly addressed by the DJ. He was cognisant of the applicable sentencing considerations and had reviewed the relevant sentencing precedents before calibrating the sentences.