1 The three accused persons, Ong Siew Kwee (“Andy Ong”), Ho Yew Kong (“Ho”) and Chua Wei Tat (“Chua”) were jointly tried before me. Andy Ong faced three charges, while Ho and Chua each faced one charge.

2 The charges faced by Andy Ong were for the abetment of the forgery of a document purporting to be a valuable security, for criminal breach of trust as a servant, and for intentionally giving false evidence in a judicial proceeding. Ho and Chua each faced one charge for intentionally giving false evidence in that same judicial proceeding. In gist, the document alleged to be forged was a lease agreement, the money alleged to be misappropriated was $15,800,000, and the false evidence alleged to have been given in the judicial proceeding concerned when the said lease agreement was signed. Andy Ong’s case was that the lease agreement was not a forgery, and that there was a justification for the transfer of the $15,800,000. All three accused persons denied that they intentionally gave false evidence. (During the trial, the terms “lease” and “tenancy” were used interchangeably, and where the term “tenancy agreement” was used by witnesses to describe the lease agreement, I similarly do so herein.)

3 Having considered the evidence and parties’ submissions, I convicted all three accused persons on the charges they faced. Andy Ong was sentenced to a total of 9 years and 18 months’ imprisonment, while Ho and Chua were sentenced to 12 months’ imprisonment each. They appealed against their convictions and sentences. These are the grounds of my decision, which incorporate and supercede the remarks I made when rendering my verdict and before sentencing the accused persons.

4 To put the charges in their proper context, I bore in mind certain key players, key facts and occurrences which served as the frame within which the disputed aspects of this case could be placed and considered. This was necessary before moving into the specific evidence concerning each charge. I began with the key players.

(a) At the relevant time, Andy Ong was the head of the ERC group of companies. He was the approximately 87% shareholder of ERC Holdings (“ERCH”) and a director thereof. ¹ ERCH in turn wholly owned (whether directly or indirectly) ERC Institute Pte Ltd (“ERC Institute”) and ERC International Pte Ltd (“ERC International”). ² While ERC Institute was in the business of providing private education, ERC International was set up to acquire a property called the House of Tan Yeok Nee. Another related company, ERC Unicampus Pte Ltd (“ERCU”), was set up to acquire a property known as Prime Centre.

(b) In addition to the ERC group of companies, Andy Ong also (directly and indirectly) had interests in a group of companies with variants of the name “Griffin” or “Gryphon”. These were:

(i) Gryphon Capital Management Pte Ltd (“GCM”), which was 80% owned by ERCH ³ ;

(ii) Gryphon Real Estate Investment Corporation Pte Ltd (“GREIC”), in which ERCH and Andy Ong owned shares ⁴ ; and

(iii) Griffin Real Estate Investment Holdings Pte Ltd (“GREIH”), in which GREIC held shares ⁵ .

Andy Ong was also an employee of GCM, having been appointed as its Chief Investment Officer (“CIO”) pursuant to a Service Agreement dated 1 July 2010. ⁶

(c) It was not disputed that GREIH was a vehicle used to acquire and hold units in North Bridge Commercial Complex (“NBCC”), pursuant to a joint venture between GREIC and Sakae Holdings Ltd (“Sakae”). ⁷ The principal player in Sakae was PW11 Douglas Foo, and he entered into this joint venture with Andy Ong as they were, at the time, good friends. The said units were acquired in 2010.

(d) As GREIH was merely a vehicle to hold the units in NBCC, GCM was created to manage the units in NBCC. (As noted above, ERCH was GCM’s 80% shareholder; Sakae held the remaining 20%.) In February 2010, GCM was appointed to provide GREIH with management and consultancy services as well as advice for the investment of GREIH’s assets (“the Management Agreement”). ⁸ Clauses 3.1(c) and 3.1(e) of the Management Agreement stated that GCM’s duties and obligations were to provide “[d]ay to day management and operation” of GREIH’s asset (that is, NBCC), and “[c]ollection of all revenues and returns” on GREIH’s investments on its behalf. Pursuant to clause 4.1 of this Management Agreement, GCM was entitled to receive an annual management and consultancy fee, an annual profit sharing fee, and an “investment fee” amounting to 20% of any realised capital appreciation upon the sale or divestment of any of GREIH’s assets.

(e) Sometime in February to March 2012, the number of directors in GREIH was reduced from four to two. Douglas Foo was the director representing Sakae, while Ho was the director representing GREIC. ⁹

(f) Ho was an old acquaintance of Andy Ong’s, as they first met in junior college. In 2012, Ho was a director of a number of the companies in Andy Ong’s stables, including ERCU, GREIH and GREIC.

(g)  Chua had gotten his MBA through ERC Institute and was thereafter employed as an asset manager by GCM. In that capacity, he was in charge, among other things, of preparing lease agreements for GREIH’s various tenants in NBCC.

(h) PW13 Ong Han Boon also played key roles in the ERC group of companies, having held directorships in ERCH, ERCU, ERC Institute, GCM and GREIH. He was also the Chief Executive Officer of ERC Institute. ¹⁰

5 Next, I noted some undisputed facts, some occurrences, and what was stated in certain documents. These began from late 2011.

(a) In August to October 2011, PW14 Tang Wei-Leng (“Tang”) from Colliers International (“Colliers”) sent emails to Andy Ong to inform him of offers made by third parties to buy NBCC. ¹¹ These purchases did not come to pass.

(b) Based on the minutes of a senior management meeting for ERC Institute on 15 December 2011, Andy Ong stated that he wanted all tenants in NBCC to move out by May 2012, as he wished to “revamp” the building. ¹² Termination notices to tenants in NBCC (including ERC Institute) were then issued by GCM on 16 November 2011, giving them six months’ notice of this termination, pursuant to clause 9.7 of the lease agreements. At the time, ERC Institute occupied some units on levels 1, 2, 5 and 6 of NBCC. ¹³

(c) Minutes of another senior management meeting for ERC Institute on 17 January 2012 stated that Andy Ong had assigned the matter of “designing and revamping” of NBCC to one Mun Siang Yee. ¹⁴ Some drawings showing sample floor plans and layouts of NBCC prepared by a company named Davoe Creative Pte Ltd (“Davoe”) dated 17 February 2012 were also put into evidence, which showed what appeared to be classrooms on levels 4 and 5 of NBCC, and offices on level 6. ¹⁵

(d) From 1 to 4 March 2012, ERC Institute participated in a careers fair, at which it informed potential students that it would be moving into its new “campus” at NBCC.

(e) On 9 March 2012, PW18 Shaun Poh of DTZ Debenham Tie Leung (SEA) Pte Ltd (“DTZ”) sent Andy Ong an email informing him of an offer to buy NBCC. ¹⁶

(f) On 14 March 2012, PW10 Mary Sai (“Sai”) from Knight Frank Pte Ltd (“Knight Frank”), met Andy Ong to discuss the strata title sale of two units on the ground floor of NBCC, as well as levels 2 to 5. Based on an email that Sai sent to Andy Ong thereafter which captured the matters they discussed, level 6 of the building was meant to remain as the “existing educational institute” for the anchor tenant, Knight Frank would begin its marketing in May 2012, and vacant possession would be obtained by 15 June 2012. ¹⁷

(g) On 27 April 2012, a resolution was passed by the management corporation of NBCC that GREIH would rent the common areas in level 6 of the building. ¹⁸

(h) On 13 June 2012, ERC International exercised an option for the purchase of the House of Tan Yeok Nee. ¹⁹

(i) On 20 June 2012, Chua sent an email ²⁰ to Ong Han Boon, attaching a soft copy of a lease agreement, “as requested”. That email stated that for the lease or tenancy agreement to be effective, two things were needed: a one-month deposit as consideration for its acceptance, and the stamping of the agreement, for which ERC Institute needed to pay a penalty for late stamping. The lease agreement attached to this email was referred to as “Version 1” during the trial. It was between GREIH as landlord and ERC Institute as tenant, and had the following features:

(i) it stated that the lease was to be made on “the ____ day of ____ Two Thousand And Ten (2012)”;

(ii) it referred only to units on level 6 of NBCC as the premises to be rented and contained a floor plan only of level 6;

(iii) it stated the area to be rented as 7,331 square feet;

(iv) it stated the monthly rent payable as $51,130;

(v) it did not contain clause 9.7 allowing the landlord to terminate the lease with notice; and

(vi) it contained an option allowing the tenant to renew the lease, for two additional terms of three years.

(For easier comparison, a table setting out all the features of the various Versions of the lease agreements is Annexed at the end of these Grounds of Decision. It was prepared by the prosecution with inputs from and the co-operation of defence counsel, at the court’s request.)

(j)  On 21 June 2012, Chua emailed Ong Han Boon again, ²¹ stating “Hi Boon, As revised.” This email attached a soft copy of another lease agreement between GREIH as landlord and ERC Institute as tenant, which was referred to as “Version 2” during the trial. This version had the same features as Version 1, except that:

(i) it listed units on levels 4, 5 and 6 of NBCC, but stated that these were “on the 3rd to 6th storeys of the Building”, and contained floor plans of only levels 4 to 6;

(ii) it stated the area to be rented as 36,667 square feet; and

(iii) it stated the monthly rent payable as $255,658.

(k) On 22 June 2012, Ong Han Boon replied to Chua, “Thanks, Will sign and return with 1 month cheque deposit.” In that same email, he instructed one Joanne Chia to prepare a cheque for $293,416 from ERC Institute to GREIH, and to date the cheque 15 March 2012. ²² A signed copy of Version 2 was referred to during the trial as “Version 3”. It was signed by Andy Ong for ERC Institute, and by Ong Han Boon for GREIH. Version 3 was dated 1 March 2012, with the word “Ten” in the “Two Thousand and Ten” (referring to the year the document was signed) being struck through by hand, and the word “Twelve” handwritten below it. Version 3 also bore the signature of Ho on the top of the first page, above the words “Certified True Copy”. ²³

(l) On that same day (22 June 2012), the Business Times published an article reporting that 91 out of 119 units in NBCC were expected to be launched for sale the next day, and which carried a quote from Sai. The sales did take place on 23 and 24 June 2012 (“the strata title sale”), and on 26 June 2012, it was reported in Yahoo News that 77 out of the 91 units had been sold. ²⁴

(m) On 25 July 2012, using the same email chain in which Chua had sent him the lease agreements Version 1 and Version 2, Ong Han Boon directed Chua and Joanne Chia, “Please stamp.” The day after, Chua replied that he had submitted the document for stamping, and stated the late stamping penalty payable. Documents from the Inland Revenue Authority of Singapore (“IRAS”) showed that on 26 July 2012, a lease agreement dated 1 March 2012 had been submitted for stamping. The stamp duty and late stamping penalty were paid on 1 August 2012, ²⁵ and IRAS issued a Certificate of Stamp Duty on 8 August 2012. The units listed in the IRAS Certificate were the same as those listed in Version 2/Version 3. ²⁶

(n) On 13 September 2012, $16,000,000 was moved from a UOB account of GREIH’s (ending 7707) to another of its UOB accounts (ending 7153). This was authorised by Andy Ong and Ong Han Boon. ²⁷ Thereafter, with Andy Ong’s approval, GREIH transferred a total of $15,800,000 from the UOB account (ending 7153). This comprised $14,300,000 to a UOB account in the name of ERC International, ²⁸ and $1,500,000 to a UOB account in the name of ERCU. ²⁹ Prior to these injections of funds, the amount held in ERC International’s said UOB account was $11,840, while the amount held in ERCU’s said UOB account was just over $14,000. ³⁰ These transfers were recorded on GREIH payment vouchers as follows:

(i) The transfer of $14,300,000 to ERC International was recorded as comprising of two components, with $13,760,000 being “Advances to ERC International”, and $540,000 being “Repay advances from ERC Holdings.”

(ii) The transfer of $1,500,000 to ERCU was recorded as “Advances to ERC Unicampus”. ³¹

(o) On 14 September 2012, these monies were in turn disbursed as follows:

(i) From ERC International’s said UOB account: $4,180,379.83 to Union Investment Real Estate GmbH; $9,120,000 to the Comptroller of Income Tax; and $1,000,000 to a DBS account held by ERC International. ³² The first two amounts were payments made towards the purchase of the House of Tan Yeok Nee, which sale was completed on 17 September 2012, pursuant to the above-mentioned option to purchase which had been exercised on 13 June 2012. ³³

(ii) From ERCU’s said UOB account: two transfers of $807,314.57 were made to repay a loan from UOB, pursuant to loan repayment advices which had been issued by UOB on 31 August 2012. ³⁴

(p) In or around September to October 2012, Andy Ong requested Tang (from Colliers) to prepare a market study report to explore relocation options for ERC Institute. ³⁵

(q) On 25 October 2012, Chua sent an email to Ong Han Boon attaching a lease agreement, stating, “Bro, as requested to put in level 3 as well.” ³⁶ This lease agreement was referred to as “Version 4” during the trial. It was between GREIH as landlord and ERC Institute as tenant, and had the following features:

(i) it stated that the lease was to be made on “the ____ day of ____ Two Thousand And Twelve (2012)”;

(ii) it referred to units on levels 3 to 6 of NBCC as the premises to be rented and contained floor plans of level 3 to 6; however, the unit numbers on level 3 extended to numbers beyond what existed as shown in the level 3 floor plan;

(iii) it stated the area to be rented as 36,677 square feet;

(iv) it stated the monthly rent payable as $255,568;

(v) it did not contain clause 9.7 allowing the landlord to terminate the lease with notice; and

(vi) the option to renew stated that it would be for two additional terms of three years, but that both parties “irrevocably agree[d] to the renewal” of the two additional terms.

(r) On 1 November 2012, Tang emailed a draft of her market study report to Andy Ong. On 5 November 2012, she sent the final version of that report to Andy Ong and backdated it to 31 August 2012 at his request. This Colliers report stated that its objective was to “provide comparable evidence to assist [ERC Institute] to determine whether there are relocation opportunities within the Bugis area….” It listed various buildings in the vicinity with rentals which ranged from $6.20 to $16 per square foot (“psf”) including the building Bugis+, which it described as one of the two best options, but for the fact that it did not have sufficient space available. The asking rent for Bugis+ was stated to be $10 to $16 psf. ³⁷

(s) On 9 November 2012, Sakae engaged PricewaterhouseCoopers LLP (“PWC”) to examine the financial and accounting affairs of GREIH. One of the findings set out by PWC in its report dated 14 January 2013 ³⁸ concerned the abovementioned transfer of the $15,800,000. In this regard, PWC stated that it had been informed by PW12 Carol Ong, the then Chief Financial Officer of the ERC group of companies, that the payment related to compensation for the early termination of a lease agreement between ERC Institute and GREIH signed on 1 March 2012 to occupy the third to sixth floors of NBCC, consisting of a total area of 7,331 square feet, for an irrevocable period of nine years. PWC stated that it understood from Andy Ong that the premature termination was due to a change in plan for NBCC upon receiving an offer from a developer. PWC’s report also stated that after the termination of the lease agreement, GREIH had appointed Colliers to conduct a market study to identify suitable alternative locations within the vicinity of NBCC. Using selected information from the Colliers report, Andy Ong had computed that ERC Institute was entitled to $16,000,000 in compensation for the premature termination of the lease agreement. A copy of the said lease agreement was attached to PWC’s report, and this was referred to during the trial as “Version 5”. Version 5 had different signatories from Version 3, as the signatory for ERC Institute was Ong Han Boon, while the signatory for GREIH was Ho. PW17 Le Thi Thu Trang (“Amy Le”) signed as the witness for Ong Han Boon, while Chua signed as the witness for Ho. In terms of Version 5’s features:

(i) it stated that the lease was to be made on “the ____ day of ____ Two Thousand And Twelve (2012)”;

(ii) it referred to units on levels 3 to 6 of NBCC as the premises to be rented and contained floor plans of level 3 to 6; this time, the unit numbers on level 3 corresponded to what was shown in the level 3 floor plan;

(iii) it stated the area to be rented as 7,331 square feet;

(iv) it stated the monthly rent payable as $255,568;

(v) it did not contain clause 9.7 allowing the landlord to terminate the lease with notice; and

(vi) the option to renew stated that it would be for two additional terms of three years, but that both parties “irrevocably agree[d] to the renewal” of the two additional terms.

(t) On 30 January 2013, Chua sent an email to Ong Han Boon, Carol Ong and one Stephen Tan, stating that Andy Ong had come down to their office at 585 Sixth Avenue the day before to “make amendment to the Letter of Termination of ERCI tenancy. The date has been changed to 31 July 2012 based on his instruction.” The email attached a signed copy of a letter dated 31 July 2012 on GCM’s letterhead addressed to ERC Institute, stating that GREIH was terminating the lease agreement it made with ERC Institute dated 1 March 2012. ³⁹

(u) Sakae thereafter filed civil suits against, among others, GREIH, GREIC, Andy Ong, Ho and Ong Han Boon. One of these was Suit 1098 of 2013 (“Suit 1098”), for minority oppression. Andy Ong, Ho and Chua filed affidavits in this suit. The outcome of this suit and of the appeal were reported in the following cases: Sakae Holdings Ltd v Gryphon Read Estate Investment Corp Pte Ltd and others (Foo Peow Yong Douglas, third party) and another suit (“Sakae v GREIC”) [2017] SGHC 73 and [2017] SGHC 100, and in Ho Yew Kong v Sakae Holdings Ltd and other appeals and other matters [2018] 2 SLR 333.

(v) As at the time of this criminal trial, Ong Han Boon had pleaded guilty to a charge for perjury and two other charges. He had been sentenced to an imprisonment term of seven months and a fine of $4,000, and had completed serving his sentence. ⁴⁰

(w) For completeness, it should be noted that a sixth version of the lease agreement was produced during the trial (“Version 6”), which had been seized by the Commercial Affairs Department (“CAD”) during investigations. Version 6 was identical to Version 5 in all respects of its content except the floor area to be rented – instead of 7,331 square feet, it was 36,677 square feet. ⁴¹ An inspection of the hard copy of Version 6 showed that its first page and last page had a series of staple holes in corresponding positions in the top left corner, while all the pages in between did not have any such holes. ⁴² The first page bore the date 1 March 2012, while the last page bore the signatures of the same two signatories and the two witnesses as in Version 5. PW19 Commercial Affairs Officer Tan Wei Yuan also testified that he had compared the first and last page of Version 5 and Version 6 by scanning them and setting them one on top of the other – the handwriting, signatures and locations of the signatures matched exactly, showing that these were the same pages. ⁴³

6 The first charge faced by Andy Ong (DAC 926687/2018) was under s 467 read with s 109 of the Penal Code (Chapter 224, 2008 Revised Edition) (“PC”). It alleged that on or about 20 June 2012, he abetted the forging of a document which purported to be a valuable security, by instigating Ong Han Boon to make a false lease agreement between GREIH and ERC Institute dated 1 March 2012, with the fraudulent intention of causing it to be believed that the said lease agreement was made at a time he knew it was not made. To this end, it was alleged that Andy Ong instructed Ong Han Boon to create the said lease agreement, and pursuant to these instructions, Ong Han Boon instructed Chua to prepare the lease agreement, and thereafter, Ong Han Boon, Chua and others signed and executed the said agreement, which act was committed in consequence of Andy Ong’s abetment. The lease agreement referred to in this charge was Version 5.

7 The second charge faced by Andy Ong (DAC 926686/2018) was under s 408 of the PC. This charge alleged that Andy Ong, being a servant of GCM, and in such capacity being entrusted with property, namely $15,800,000 in the UOB account (ending 7153) belonging to GREIH, did commit criminal breach of trust (“CBT”) by dishonestly misappropriating the said sum, by instructing two fund transfers. First, a transfer of $14,300,000 to ERC International, and second, a transfer of $1,500,000 to ERCU.

8 The third charge faced by Andy Ong (DAC 926688/2018) was under s 193 of the PC. It alleged that on 23 November 2015, he intentionally gave false evidence in Suit 1098, by stating in an affidavit filed for that suit that, on or about 1 March 2012, he had arranged for a lease agreement between GREIH and ERC Institute dated 1 March 2012 to be signed by Ong Han Boon and Ho Yew Kong, which evidence he knew to be false.

9 The charges faced by Ho (DAC 926588/2018) and Chua (DAC 926534/2018) were under s 193 of the PC. Ho’s charge alleged that on 11 February 2016, he intentionally gave false evidence by stating in an affidavit filed for Suit 1098 that he signed a lease agreement between GREIH and ERC Institute prior to 9 March 2012, which evidence he knew to be false. Chua’s charge alleged that on 15 February 2016, he intentionally gave false evidence by stating in an affidavit filed for Suit 1098 that, he had sometime in February 2012 prepared a draft lease agreement dated 1 March 2012 between GREIH and ERC Institute, and had seen and signed the said agreement sometime in March 2012, which evidence he knew to be false.

10 For the forgery charge, it was not disputed that Version 5, as a lease agreement purporting to create legal rights between GREIH as landlord and ERC Institute as tenant, was a valuable security. This meant that what was left for the prosecution to prove was:

(a) That the lease agreement known as Version 5 was a false document made with the fraudulent intention of causing it to be believed that it was made at a time the maker knew it was not made (and in this regard, a person is said to have an intent to defraud if he practices a deception with the aim of either causing an injury, loss or detriment, or obtaining an advantage); and

(b) That Andy Ong instigated Ong Han Boon to make Version 5, and pursuant to this instigation, Ong Han Boon instructed Chua to prepare Version 5, and thereafter, Ong Han Boon, Chua and others signed and executed it. In this regard, the prosecution also needed to prove that Andy Ong had knowledge of all the essential matters constituting the principal offence.

11 For the CBT charge, it was not disputed that Andy Ong was a servant of GCM and that he authorised the two transfers from GREIH’s account, of $14,300,000 to ERC International, and of $1,500,000 to ERCU. This meant that what was left for the prosecution to prove was:

(a) That in his capacity as such a servant, he was entrusted with $15,800,000 in the UOB account (ending 7153) belonging to GREIH; and

(b) That he dishonestly misappropriated that property by directing it to be transferred to ERC International and ERCU.

12 Concerning the CBT charge, the defence contended that since the money transferred belonged to GREIH and Andy Ong was not a servant of GREIH, the offence was not made out. In similar vein, since no loss was caused to GCM, the offence could not be made out. The prosecution’s response was that Andy Ong did not need to be a servant of the owner of the property for the charge for CBT as a servant to be proved, and that the employer did not need to suffer loss in an offence of CBT as a servant. I address these points in detail below.

13 For the charges for intentionally giving false evidence, it was not disputed that the said evidence was given by the accused persons in Suit 1098. This meant that what the prosecution had to prove was that the said evidence was false, and that the accused persons knew it to be false, or did not believe it to be true.

14 I considered the evidence adduced for, and the parties’ cases in connection with, each of these charges or categories of charges in turn.

15 For the forgery charge, the issues to be determined were whether Version 5 was a false document made with the fraudulent intention of causing it to be believed that it was made at a time the maker knew it was not made, and whether Andy Ong instigated it to be made and signed knowing of its falsity and with this fraudulent intention.

16 To establish this, the prosecution relied on the testimony of Ong Han Boon, as well as corroborative documentary evidence and circumstantial evidence.

17 Ong Han Boon’s testimony was that when GREIH terminated the tenancies of its tenants in NBCC in December 2011, this was because there was “talk” of turning the building to into an “Edumall”, in which ERC Institute would take up the majority of the space in the building, “somewhere between levels 3 to 6”. However, there was no written agreement to this effect or discussion of how much rent ERC Institute would have to pay. Although Ong Han Boon confirmed that a designer had been engaged to draw up designs for levels 3 to 6 of NBCC, he stated that renovations to this effect were never done. ⁴⁴

18 He confirmed that during the careers fair in early March 2012, ERC Institute informed attendees of the fair that they would be moving into a new campus at NBCC, because Andy Ong said that this was “the plan”. Ong Han Boon also stated that at this time (March 2012), if ERC Institute wanted to lease premises, he and Andy Ong, being its directors, would negotiate and sign any lease agreement. However, there was no such lease agreement signed in February or March 2012, nor were any lease terms finalised at this time. ⁴⁵

19 Concerning the resolution passed by the management corporation of NBCC on 27 April 2012 to allow GREIH to rent the common areas in level 6 of NBCC, he explained that this was meant for ERC Institute, to allow it to use the whole of level 6. There were no similar resolutions for other levels 3 to 5 because the plans at the time were for ERC Institute to “only maybe” use level 6, while levels 1 to 5 would probably be sold. ⁴⁶

20 As for how the different versions of the lease agreements came about, Ong Han Boon testified that on or around 20 June 2012, Andy Ong informed him that he wanted a tenancy agreement between ERC Institute and GREIH, covering levels 3 to 6 of NBCC, and that it should be backdated to 1 March 2012. Andy Ong also provided information such as the lease’s duration, start date and rental amount. Ong Han Boon thus instructed Chua to prepare the said agreement and that it needed to be backdated to March. While Chua’s email of 20 June 2012 referred to the one-month deposit and late stamping, Chua attached Version 1, which referred only to level 6 as the premises to be leased. Ong Han Boon believed that Chua may have misheard or misunderstood him, and asked Chua to revise it to insert levels 3 to 6. It was thus that Chua sent him Version 2 on 21 June 2012. Ong Han Boon had stated in his email reply of 22 June 2012 to Chua that he would sign the attached agreement, and he testified that he would have printed it out and signed it within a few days thereafter. He also stated that it was most likely him who crossed out the erroneous word “ten” and replaced it with the handwritten word “twelve”, as that looked like his handwriting. He added that he instructed for the cheque for the one-month’s deposit to be backdated to 15 March 2012, so that it would be around March 2012. ⁴⁷

21 On to Chua’s email of 25 October 2012 which contained Version 4, Ong Han Boon testified that this likely came about because he, Stephen Tan or Andy Ong had discovered that the previous versions of the lease agreement omitted listing units from level 3. ⁴⁸

22 Concerning Version 5, Ong Han Boon confirmed his signature thereon, but was uncertain how PWC obtained a copy of it or how it came about. He expressed the view that it could have come later than Version 4, because the error in Version 4 concerning the unit numbers for level 3 had been rectified in Version 5, though he was unable to explain why the area to be rented had reverted from 36,677 square feet to 7,331 square feet in Version 5. ⁴⁹

23 Ong Han Boon also testified that sometime before November 2012, Andy Ong told him that he had commissioned Colliers to prepare a report to justify a $16,000,000 compensation by GREIH to ERC Institute. This was because Andy Ong said that since ERC Institute was “intending” to be the tenant of levels 3 to 6 of NBCC (which by this time had been renamed Bugis Cube), but could no longer move in there, it should be paid “compensation” because there had been a valid lease. Ong Han Boon’s testimony was that there was no valid lease agreement between GREIH and ERC Institute at the time. ⁵⁰ However, Andy Ong then instructed Ong Han Boon and Stephen Tan to “create evidence and a paper trail to support the lease compensation”. ⁵¹ Ong Han Boon thus did the following:

(a) On or about 5 to 6 November 2012, he created unsigned letters between himself and Stephen Tan as purported correspondence between ERC Institute and GCM (on behalf of GREIH) requesting compensation for the breach of a lease (“the compensation requests”).

(i) The first letter, backdated to 5 July 2012, referred to a tenancy agreement signed between GREIH and ERC Institute on 1 March 2012, for the lease of levels 3 to 6 of NBCC for nine years at $255,658 per month. It referred to a notice to vacate dated 29 March 2012, and asked GREIH for a lease at an alternative site, or for compensation for breach of the tenancy agreement.

(ii) The second letter, backdated to 4 September 2012, referred to the letter of 5 July 2012, and to a “report by third party Colliers International on the unavailability of appropriate commercial spaces with signage rights at our current lease price”. It asked for compensation of $16,000,000 for the breach of the tenancy agreement, and asked to be compensated by 18 September 2012. Ong Han Boon stated that the figure of $16,000,000 would have been provided by Andy Ong. ⁵²

(b) On or about 28 November 2012, he also modified an email that he had received from Stephen Tan on 11 April 2012 on an unrelated matter, by changing the subject matter of that email from “searavan contact person” to “NBCC” and amending its content, such that it referred to a letter concerning GREIH’s intention to sell NBCC, and asked Stephen Tan to advise whether ERC Institute could be permitted to stay on and take over levels 3 to 6 of NBCC, or if GREIH would be willing to compensate ERC Institute for the cost of relocation, or “any other costs for breaking the lease agreement.” Ong Han Boon stated that Searavan was a potential buyer for Prime Centre, and the original email was thus unrelated to NBCC, the termination of any lease, or compensation. He also stated that would not have created this “paper trail” but for Andy Ong’s instructions, pointing out that he was not party to receiving the $16,000,000. ⁵³

24 The prosecution submitted that Ong Han Boon’s evidence should be given full weight because it was credible, and he had already pleaded guilty to perjury, in the course of which he admitted to knowingly stating an untruth in an affidavit – that he had signed the lease agreement on behalf of ERC Institute on or around 1 March 2012. It was thus “incredible that he would lie, implicate himself, and go to jail based on untrue facts.” ⁵⁴ I noted that accepting Ong Han Boon’s evidence meant accepting that there had not been any valid lease agreement between GREIH and ERC Institute which was signed on 1 March 2012 and which was for the renting of four floors of NBCC for nine years. By extension, this meant that there was no lease to terminate and thus no compensation payable for the termination, and the transfer of monies from GREIH to ERC International on 13 September 2012 could not have been for such compensation.

25 The prosecution submitted that Ong Han Boon’s account was corroborated by Amy Le, who testified that she joined ERC Institute the day after 13 March 2012, which was the date of her S Pass. If so, she could not have signed Version 5 on or about 1 March 2012. ⁵⁵

26 The prosecution also submitted that the documentary evidence corroborated Ong Han Boon’s evidence that no tenancy or lease agreement was signed on 1 March 2012. This included the emails that Chua sent him on 20 and 21 June 2012 attaching the draft lease agreements, the late stamping of what must have been Version 3 of the lease agreement in July 2012, the email from Chua dated 25 October 2012 containing Version 4, and the fact that the Colliers report came only in November 2012, well after the movement of $16,000,000 within GREIH’s accounts, and the transfers therefrom to ERC International and ERCU. ⁵⁶

27 At this juncture, I found that it was apt to note the connection between the Colliers report and the figure of $16,000,000, which figure was in turn related to the monetary transfers of 13 September 2012. Although some of the following evidence is more relevant to the CBT charge, I set it out herein for better flow, because of its place in the overall chronology.

28 It was not disputed by Andy Ong that he used the figure from the Colliers report of $10 psf for rent in Bugis+ as the basis for calculating the amount of compensation he claimed was owed to ERC Institute. ⁵⁷ The evidence from Carol Ong was relevant in this regard because of her role in the said monetary transfers, and because Andy Ong subsequently explained his calculations to her. To put Andy Ong’s explanation to Carol Ong in its proper context, some evidence leading up to that incident had to be noted.

29 Carol Ong testified that from July 2012, she had communicated with Stephen Tan about, among other things, the funds needed by ERC International to complete the purchase of the House of Tan Yeok Nee. On 11 September 2012, she sent an email to Andy Ong and Stephen Tan, stating that a loan of $14,500,000 from GREIH to ERCH appeared to be the “only way out” for funds to be raised for that purchase. This would be by way of a capital injection from ERCH to ERC International, because the latter did not have sufficient funds to complete the purchase. ⁵⁸

30 However, as noted above, on 13 September 2012, there was instead an internal movement of $16,000,000 within GREIH’s bank accounts, after which transfers of $14,300,000 and $1,500,000 were made to ERC International and ERCU respectively (see [5(n)]) (“transfers of 13 September”). Carol Ong testified that Andy Ong had verbally instructed her to effect these transfers of 13 September, and that they were effected by internet banking instead of the usual cheques because they were “urgent”. ⁵⁹ In this regard, the GREIH payment vouchers reflected the transfers of $13,760,000 to ERC International and $1,500,000 to ERCU as “advances” because the accounting department was unsure how to characterise the transfers at the time. ⁶⁰ That said, Carol Ong’s evidence was that Andy Ong had also instructed her to refer to the $13,760,000 as a “loan”, and to this end, she instructed that a loan agreement for GREIH to loan ERCH $13,760,000 be prepared. ⁶¹ This supposed loan agreement was nevertheless “voided”, or no longer required, because on or about 22 October 2012, after Carol Ong had returned from a vacation, she was told that there was a “lease termination compensation” of $16,000,000 that GREIH was “supposed to pay to ERC Institute”.

31 As the accounting records did not reflect any such lease compensation, she asked Andy Ong how this came about and how it was derived. He informed her that the transfers of 13 September were part of that “lease termination compensation”. ⁶² Thereafter, to clarify the basis of the lease termination compensation, Carol Ong prepared two letters and backdated them to a date prior to 13 September 2012 on Andy Ong’s instructions. These two letters, which were prepared on or after 22 October 2012 but dated 7 September 2012, bore the subject heading “Lease Termination Compensation” and had the following particulars:

(a) The first letter was from ERC Institute to GREIH and was signed by Ong Han Boon. It stated, “Pursuant to a Notice of Termination dated 31st July 2012 to our Lease Agreement dated 1 March 2012, please be notified that the agreed lease termination compensation of $16 million shall be collected on our behalf by the ultimate holding company, ERC Holdings Pte Ltd.” This said text was in a different font from the rest of the letter. Carol Ong testified that while some aspects of the letter were prepared by her as the date was written as “September 7, 2012”, and the word “ultimate holding company” were used, which reflected her writing style. However, she stated that insofar as the date in the body of the letter was written as “31st July 2012”, that was not her writing style.

(b) The second letter was from ERCH to GREIH and was signed by Andy Ong. It stated, “With reference to the letter dated September 7th 2012 received from ERC Institute Pte Ltd on the above captioned, please be notified that the amounts shall be disbursed as follows before September 13, 2012:”. This was followed by payment instructions to credit $14,300,000 to ERC International and $1,500,000 to ERCU. ⁶³

32 On or about 5 November 2012, Andy Ong explained to Carol Ong how the figure of $16,000,000 was computed. She testified that he had the Colliers report with him and scribbled the computation on a board to arrive at $16,000,000. Carol Ong took down the information that Andy Ong shared and typed it into a Microsoft Excel document on the same day, given “the importance of that computation to support the basis” of how the $16,000,000 was arrived at. She knew that the document was created on 5 November 2012 due to the metadata in that file, as shown to her by the CAO Tan Wei Yuan. The Excel document set out the calculations as follows:

•  It took the figure of $255,658 as the “Monthly rental expense” and divided this by a “Total area” of 40,500 to arrive at a “rental per psf” of $6.31.

•  Deducting this $6.31 from the rental figure of $10.00 psf for Bugis+ as stated in the Colliers report, this resulted in $3.69 psf, which was described as the “Additional amount required”.

•  When the $3.69 was multiplied by 40,500, it gave a “Monthly Compensation amount” of $149,342.

•  The $149,342 was then multiplied by 108 months, being the “Lease period”.

•  This resulted in a “Lease Termination Compensation” of $16,128,936, which was rounded down to $16,000,000. ⁶⁴

It bore noting (from [23(a)]) that on this same day (5 November 2012), Ong Han Boon created the two backdated letters for compensation requests from ERC Institute to GREIH.

33 When Carol Ong was asked how she would have described the transfers of 13 September 2012 if she had known that these were supposed to be compensation for lease termination, she replied that she would have reflected them as a “lease termination compensation” expense to ERC Institute instead. ⁶⁵ Carol Ong also confirmed that she had given Version 5 to PWC, and that it would have been given to her either by Ong Han Boon or Andy Ong. ⁶⁶

34 Moving on to the circumstantial evidence, the prosecution made two main points. ⁶⁷

35 The first arose from Douglas Foo’s testimony that about two weeks to a month before 9 March 2012, he had the “strata titling” idea for selling the units in NBCC, and communicated this to Andy Ong, who quickly began to execute this plan. ⁶⁸ Soon thereafter, Andy Ong and Sai (from Knight Frank) discussed the strata title sale on 14 March 2012, as noted above (at [5(f)]). Sai testified that Andy Ong did not mention that levels 3 to 5 were to be used by any educational institute, and it was he who suggested that vacant possession would be obtained by 15 June 2012. One to two weeks later, Knight Frank was appointed to market and sell the units in NBCC, and the sales did take place on 23 and 24 June 2012. ⁶⁹ It was submitted that it was “completely implausible” that GREIH would have engaged Knight Frank to market its units with vacant possession, without disclosing that a substantial number of units had been leased to ERC Institute. Thus, these circumstances of the collective sale corroborated Ong Han Boon’s evidence that Andy Ong came up with the idea to create a backdated lease between GREIH and ERC Institute. ⁷⁰

36 The second piece of circumstantial evidence relied on by the prosecution was that under the Joint Venture Agreement (“JVA”) between Sakae, GREIC and GREIH, if GREIH was to enter into any agreement that could not be terminated by it without penalty within six months of its commencement, then this required the prior majority approval of all the directors. However, Andy Ong conceded in cross-examination that there was no board meeting or resolution to approve the lease agreement. ⁷¹ It would thus have been entered into in breach of the JVA. Further, given that none of the versions of the lease agreement tendered in evidence had clause 9.7 which allowed GREIH to terminate the lease with notice, GREIH would have entered into an agreement on markedly unfavourable terms compared to the rest of its leases. Thus, it was submitted that this was a further example of how it was “completely implausible” that the lease agreement could have been genuinely entered into, and it was simply fraudulently created and backdated to create a paper trail to justify GREIH paying $15,800,000 to ERC International and ERCU.

37 Andy Ong’s defence was that based on events since 2009, it was evident that he had every intention to lease NBCC to ERC Institute. These events included ERC Institute’s plan to occupy four floors of NBCC, the fact that this plan was reported in The Straits Times as early as November 2009, that this plan was told to potential students at the careers fair in March 2012, and that there were drawings prepared by Davoe by February 2012. ⁷²

38 It was Andy Ong’s testimony that there had been, all along, an “oral lease” that ERC Institute had “exclusive rights” to the premises in NBCC, and that this had been conveyed to “the whole world”. In this context, “the whole world” meant all the investors, Sakae, the public (through news articles), and students (through the careers fair). When asked in cross-examination to elaborate on the terms of this oral lease, he stated that these were that ERC Institute would take levels 3 to 6 of NBCC for a “very long term”, for an initial monthly rent of about $255,000, which amount would subsequently be “subject to market forces according to commercial terms”. He stated that the agreement for this oral lease was entered into upon the acquisition of the building by GCM on behalf of GREIH, and that its commencement date was at ERC Institute’s “pleasure”. In this regard, Andy Ong himself was part of both the GREIH/GCM management team and the ERC Institute management team that agreed to the oral lease. He also stated that the written lease agreement he instructed Ong Han Boon to create was merely to document the oral lease. ⁷³

39 It was also submitted by Andy Ong that he had maintained under cross-examination that Version 5 was executed on or around March 2012. Among the points raised were that he had instructed Ong Han Boon to prepare the written lease agreement to document the oral lease, and that when Ong Han Boon presented a version of the lease agreement to him, he instructed Ong Han Boon to arrange for a director of GREIH to sign for the counterparty, because it was “safer” to do so since this was a “big lease”. However, Andy Ong did not look at the terms of the lease agreement presented to him and was unable to recall whether Ong Han Boon followed his instructions on the signatory, because he simply trusted his team. ⁷⁴

40 As for Ong Han Boon, the defence submitted that he was not credible.

(a) Andy Ong submitted that Ong Han Boon’s testimony was inconclusive as to whether Andy Ong gave him instructions to create any paper trail – this was chiefly because Ong Han Boon stated that Andy Ong did not use the word “fabricate” or “fake” in his instructions to Ong Han Boon. ⁷⁵ It was also submitted that Ong Han Boon was the only witness who gave testimony that contradicted his affidavit, and that his evidence was internally inconsistent – the examples of these were on what he asked Chua that led Chua to send him the email of 20 June 2012, and whether Andy Ong told him to “fabricate” documents. ⁷⁶

(b) Ho submitted that Ong Han Boon was an unreliable witness, as he was an “admitted liar”, having admitted in testimony that he had lied in his statements to the CAD. Further, parts of his testimony were based on logical deduction rather than his own recollection, and these included when Version 3 was signed and why it was stamped late. It was also submitted that Ong Han Boon had contradicted himself on important facts relating to Version 3 – the example given was that he had, in cross-examination, admitted to making a mistake in his testimony as to whether he or Andy Ong signed Version 3 first. ⁷⁷

41 Andy Ong also submitted that the prosecution’s reliance on events post-March 2012 detracted from the main finding of fraudulent intent on Andy Ong’s part. Thus, if this Court recognised that there was a plan to revamp NBCC in January 2012, then the prosecution’s reliance on circumstantial evidence no longer yielded an inference beyond a reasonable doubt that the plan to lease four floors of NBCC to ERC Institute did not exist in March 2012. It was also submitted that Tang’s evidence did not support the prosecution’s case of the Colliers report being a tool “crafted to advance a fraudulent narrative”, since the fact that relocation options for ERC Institute were being assessed when the report was being prepared, logically presupposed that the plan to occupy NBCC remained a “real and live commercial pathway” after March 2012. Finally, it was submitted that Ong Han Boon’s evidence concerning the late stamping of the lease agreement did not mean that the agreement was not executed in March 2012; it simply meant that the lease agreement was executed then, but had not been stamped, hence the need for the late stamping. ⁷⁸

42 I accepted that based on what was told to attendees of the careers fair in March 2012, it was within contemplation that ERC Institute would move into NBCC and make that its campus. Based on the drawings by Davoe in February 2012 and the appointment of Mun Siang Yee (see [5(c)]), there were arguably plans for this to happen. However, the question was whether these intentions and plans translated into substantive action in the execution of a written lease agreement between ERC Institute and GREIH in early March 2012. Having considered the evidence of the witnesses within the frame of the undisputed facts and occurrences, my view was that no such substantive action took place in or around March 2012. My reasons were as follows.

43 First, it was not disputed that Andy Ong had many plans for NBCC, not all of which came to fruition – for example, there were two attempts to sell the building en bloc, but these were unsuccessful. As at December 2011, termination notices were also issued to the tenants of NBCC so that a “revamp” of the building could take place (see [5(b)]), but this was overtaken by the strata title sale. Andy Ong was also always open to selling NBCC, as could be seen from the various offers communicated to him by Tang of Colliers and Shaun Poh of DTZ (see [5(a)] and [5(e)]). Plans could therefore always change, and it was clear that in respect of NBCC, Andy Ong’s overriding aim was to obtain the greatest yield possible, for he mentioned the hope of selling NBCC as a “yield play” more than once. ⁷⁹ In view of this, the existence of “plans” for ERC Institute to move into NBCC did not mean that they were unchangeable and did not mean that there was a written lease agreement towards that end, particularly if there was a concurrent competing interest in selling NBCC for a high yield.

44 Second, entering into a multi-year lease agreement for four floors of NBCC was undeniably a substantial and important undertaking for ERC Institute. If so, it was highly unusual that in the minutes of ERC Institute’s senior management meetings in the months and weeks leading up to March 2012, there was no mention of this lease to take up four floors of NBCC, whereas the careers fair was discussed at the meetings of 15 December 2011, 17 and 31 January 2012, 8, 15, 21 and 27 February 2012, and 6 March 2012. ⁸⁰ To my mind, this was highly indicative that despite the supposed “plans” to take up four floors in NBCC, no steps had been taken by March 2012 to execute any written lease agreement in furtherance of these “plans”. This was also consistent with Ong Han Boon’s testimony that there were no lease terms finalised in February or March 2012.

45 Third, given the substantive nature of such a multi-year lease agreement, it was difficult to believe that Chua, who was described as generally prompt in performing his tasks, ⁸¹ would have failed as at late June 2012 not only to ensure that the lease agreement had been stamped by the tenant, but also to ensure that the one-month deposit was paid. The defence contended that the late stamping was simply a late stamping and did not mean that the lease agreement was backdated. However, this ignored the backdated cheque payment for the one-month deposit, because if the stamping and the payment of the deposit were simply late, then there was no reason to backdate the cheque. It was difficult to see any reason for backdating the cheque to 15 March 2012, except to create the impression that the lease agreement had been executed in early March 2012, and the cheque followed a short time thereafter.

46 Further, if this major lease agreement had been executed in March 2012, it was difficult to see why Chua seemingly misunderstood what Ong Han Boon was requesting for in June 2012, such that he had to send multiple versions of the lease agreement to Ong Han Boon (see [5(i)], [5(j)], [5(q)] above as well as [159(b)] and [160] below). It also did not make sense that he sent Ong Han Boon unsigned soft copies of the lease agreement, rather than a copy of the signed agreement. (See also [159(a)] below.) The fact that Version 1 which Chua sent to Ong Han Boon referred only to level 6 of NBCC was also consistent with the resolution passed in April 2012 by the management corporation of NBCC for GREIH to rent the common areas of level 6 of the building (see [5(g)]), and with Ong Han Boon’s evidence that the plan then was probably for ERC Institute only to occupy level 6. All these once again pointed to the non-existence of any written and signed lease agreement as at March or even April 2012 for ERC Institute to occupy four floors in NBCC.

47 Fourth, I agreed with the prosecution that Ong Han Boon’s testimony was consistent with the documentary evidence, and I found that he provided a logical explanation for various occurrences such as the numerous versions of the lease agreement being circulated in late June 2012, the late stamping of the document and the late payment of the deposit. As noted above, there was no reason for Chua to send Ong Han Boon soft copies of the lease agreement if one had already been signed in March 2012. More importantly, if there had already been a signed lease agreement, then there was no reason for Ong Han Boon, in his email of 22 June 2012, to inform Chua that he would sign the lease agreement and return it with a one-month cheque deposit.

48 As for when the lease agreements were signed and the order in which they were signed, Ong Han Boon’s testimony was that no such lease agreement was executed in March 2012, that he asked Chua for Versions 1 and 2 pursuant to Andy Ong’s instructions, and that Version 3 was signed no earlier than 22 June 2012, while Version 5 was likely to have been signed later. I found this account of events to be logical, and I accepted it. I explain.

49 As stated above, there was no reason for Ong Han Boon to inform Chua in his email of 22 June 2012 that he would sign the lease agreement if it had already been signed in March 2012. Thus, it was clear that Version 3 could not have been signed any earlier than 22 June 2012. Since Version 3 would not have been signed if Version 5 already existed, then Version 5 must have come after Version 3. Version 4 must also have come after Version 3, because it sought to include units on level 3 which had been omitted from Version 3. Further, since Version 5 corrected the erroneous list of unit numbers that appeared in Version 4, it was highly likely that Version 5 post-dated Version 4. The defence pointed out that because Version 5 contained an error in terms of the floor area to be rented which error was absent from Version 4, it could have pre-dated Version 4. I did not accept this to be likely, because if Version 4 was meant to correct errors in Version 5, then Version 4 would have been signed and filed. Put another way, if Version 4 post-dated Version 5, then there was no reason for Version 5 to have been the copy that was filed and then submitted to PWC as the basis for the lease compensation. To my mind, it was clear that Version 5 would have been executed after 25 October 2012, and was definitely executed after Version 3, that is, after 22 June 2012. Since Version 5 was clearly executed well after 1 March 2012 but backdated to that date, it was created with the intention of causing it to be believed that it was made at a time when the maker knew it was not made.

50 Although the defence pointed out that Ong Han Boon was testifying to certain events not from memory but based on logic and on what he would have normally done, I did not regard this as an impediment to my accepting his evidence, particularly if it was consistent with undisputed facts. In describing the instructions that Andy Ong gave him, Ong Han Boon was also fair in stating that Andy Ong had not expressly told him to “fabricate” or “fake” the documents, but simply to create the paper trail. My interpretation of Ong Han Boon’s testimony on this point was that while the specific words “fabricate” or “fake” were not used by Andy Ong, he understood that to be the substance or effect of Andy Ong’s instructions. Thus, where Ong Han Boon agreed with or used expressions in testimony that Andy Ong had instructed him to fabricate the paper trail, this was not an inconsistency, but an expression of the substance of Andy Ong’s instructions. The defence also raised other examples of Ong Han Boon’s inconsistent evidence, on whether he or Andy Ong signed Version 3 first, and on what he recalled he said to Chua concerning the floor levels of the lease agreement when he asked Chua for it on or about 20 June 2012. On these points, I agreed with the prosecution that the inconsistencies, if any, were not material, and did not materially affect Ong Han Boon’s credibility. ⁸²

51 I also rejected the defence’s contention that Ong Han Boon should not be believed just because he was an “admitted liar” or because he gave evidence contrary to his affidavit. The defence had the opportunity to run this argument primarily because Ong Han Boon had pleaded guilty to giving false evidence in his affidavit for the civil suit. However, to hold that he was consequently not to be believed in the present trial would imply that any person who had been convicted of an offence of perjury could not then be a witness in a trial against an accomplice to that offence, because he was no longer credit-worthy. I did not believe that there was any rule of evidence to that effect. I also noted that he admitted to creating the backdated draft letters for the compensation requests, and to modifying the April 2012 email chain concerning Searavan, which was effectively admitting to other offences, which he had little reason to if these were untrue. I also accepted that he had no interest in the $16,000,000 transfer and thus had no reason to create those documents unless he had been instructed to do so.

52 Fifth, as pointed out by the prosecution, Ong Han Boon’s evidence that there was no lease agreement executed on or about March 2012 was consistent with the fact that Andy Ong, in speaking to Sai about the strata titling idea, did not mention to her that there might be an impediment to granting vacant possession of NBCC by 15 June 2012. Further, Douglas Foo was also unaware of such a lease agreement, and if the lease agreement existed, it would have been extremely unusual for him to have pushed ahead with the strata titling idea with Andy Ong without discussing this impediment and the consequence to GREIH of having to break this obligation with ERC Institute. I also disagreed with the defence’s argument that since relocation options for ERC Institute were allegedly being assessed when the Colliers report was being prepared, this logically presupposed that the plan to occupy NBCC was a “live and commercial pathway” after March 2012: this conflates a “plan” to occupy NBCC with the existence of a written lease agreement towards that end, when the latter does not necessarily follow from the former.

53 Sixth, I found Andy Ong’s account of an “oral lease” between GREIH and ERC Institute having existed long before March 2012 to be wholly unbelievable. I noted that he had to be hard-pressed in cross-examination to say when this oral lease was entered into, and when asked to articulate its terms – for example, its length, his answer that it was for a “very long term” was so thoroughly vague that it was difficult to believe that such an ambiguous term had been agreed to by the parties. He also asserted that the tenancy could begin at ERC Institute’s “pleasure”, which was not only devoid of certainty for either contracting party, but also so one-sided that it was difficult to believe that GREIH would have agreed to such a term. My view was that this evidence concerning the oral lease was created to buttress Andy Ong’s assertion that a genuine written lease agreement existed between GREIH and ERC Institute. However, the commercial impracticality of its alleged terms and the fact that its existence was raised for the first time only during Andy Ong’s testimony created the opposite effect – it rendered his assertions less believable.

54 These further aspects of the evidence reinforced my conclusion that there was no valid written lease agreement between GREIH and ERC Institute to rent four floors of NBCC for nine years that existed, or which was executed, on or about 1 March 2012. This meant that Version 5 was a false document. Since I concluded above that Version 5 was executed after 22 June 2012 but it was dated 1 March 2012, this also meant that it was a false document created with the intention of causing it to be believed that it was made at a time the maker knew it was not made.

55 As for whether Version 5 was created with a fraudulent intention, a person is said to have an intent to defraud if he practices a deception with the aim of either causing an injury, loss or detriment, or obtaining an advantage. Based on the testimonies of Ong Han Boon and Carol Ong as well as what was set out in the PWC report, I accepted that Version 5 (and the alleged early termination thereof) was used as the basis for explaining the $16,000,000 that was transferred out of GREIH’s bank account. However, since I accepted that Version 5 was a false document, it meant that there was no genuine lease agreement to terminate and thus no compensation payable to ERC Institute for its alleged termination. If so, the monies transferred from GREIH to ERC International and ERCU on 13 September 2012 (purportedly at ERC Institute’s request) could not have been compensation monies. Thus, the claim that the payment of $16,000,000 out of GREIH’s account was compensation for the termination of the lease must have been untrue. Insofar as Version 5 purported to support this narrative, it was clearly created with the fraudulent intention of obtaining an advantage for ERC Institute.

56 I was reinforced in this view by the fact that the figure of $16,000,000 was purportedly derived from information in the Colliers report that rent in Bugis+ started at $10 psf. However, it was clear from the report that there was no space in Bugis+ that was suitable for ERC Institute’s use. If so, since ERC Institute could not have moved into Bugis+, there was no basis to use that figure to calculate the “additional amount required” for rent at Bugis+, and consequently no basis for the ultimate figure arrived at for the “lease termination compensation”. Given the surrounding events such as ERC International’s need for money to complete its purchase of the House of Tan Yeok Nee (which was known by 13 June 2012 when the option was exercised) and ERCU’s need for money to repay its loans from UOB (which was known by 31 August 2012 when UOB sent the loan repayment advices), it was far more likely that Andy Ong directed the movement of the requisite funds from GREIH to the ERC companies, then sought a justification for that quantum after the fact.

57 I accepted Ong Han Boon’s evidence that Versions 1 and 2 were created by Chua as directed by him, pursuant to the instructions of Andy Ong. Since Versions 4 and 5 sought to correct errors in Version 3, it logically followed that they were created in continued compliance with Andy Ong’s instructions, knowing the contents of the document that he wanted. It was not disputed that Version 4 was created by Chua and sent to Ong Han Boon, and since Chua was the person in charge of leases in GCM, it was almost certain that he would have created Version 5 as well. In any case, Chua signed on Version 5 as a witness and was thus clearly a party to creating the final product – a backdated lease agreement. Ultimately, while Ong Han Boon was unable to recall when he signed Version 5 or how exactly it came about, since it was one variant in the continuum of versions of the lease agreements, my view was that it must have been created pursuant to Andy Ong’s instructions. The fact that Version 6 was subsequently seized during investigations was further proof of the continuing actions taken to refine the lease agreement (even to the point of replacing its pages and re-using only the cover page and signature page of Version 5) so that it would fit the narrative created by Andy Ong.

58  Since I accepted that Andy Ong told Ong Han Boon in late June 2012 that he wanted a lease agreement between ERC Institute and GREIH, covering levels 3 to 6 of NBCC, and that it should be backdated to 1 March 2012, Andy Ong must have known that any lease agreement that was created which contained these features was false and that no such agreement existed prior to that. (If it were otherwise, Andy Ong would have simply asked Ong Han Boon for a copy of the signed lease.) If so, Andy Ong must also have known that there could have been no “termination” of the lease, and that ERC Institute was not entitled to receive any compensation from GREIH for such “termination”. Yet, the fact that he used the purported lease agreement (Version 5) and its alleged termination as the basis for justifying such “compensation” showed his fraudulent intent in directing its creation, as it resulted in ERC Institute receiving an advantage that it should not have.

59 Ultimately, I was satisfied beyond a reasonable doubt that Version 5 was a false document which was created with the fraudulent intention of causing it to be believed that it was made at a time that the maker knew it was not made, and that Andy Ong had instigated its creation, with the knowledge of its falsity and the fraudulent intent underlying it. I therefore convicted him thereon.

60 For the CBT charge, the issues to be determined were whether Andy Ong, in his capacity as a servant of GCM, was entrusted with $15,800,000 in the UOB account (ending 7153) belonging to GREIH, and whether he dishonestly misappropriated that property by directing it to be transferred to ERC International and ERCU. Underlying these were the related issues of whether it was fatal to the charge that Andy Ong was not a servant of GREIH, the owner of the said property, and that the employer (GCM) did not suffer any loss.

61 The prosecution’s case for this charge began with the fact Andy Ong was an employee of GCM as its CIO. In this capacity, he was a signatory to GREIH’s UOB account (ending 7153). ⁸³ Ong Han Boon was the other signatory, but testified that Andy Ong was the most highly ranked executive in GCM, and no-one was senior to Andy Ong. ⁸⁴ Andy Ong agreed that he headed the management of GCM and that Ong Han Boon assisted him. Andy Ong also agreed that he was the “top executive” of ERCH. ⁸⁵

62 It was noted that the property alleged to be misappropriated was money belonging to GREIH, and not GCM. Nevertheless, the prosecution submitted ⁸⁶ that Andy Ong did not need to be the servant of the property’s owner for the charge to be made out. That meant that the prosecution did not need to prove a master-servant relationship between GREIH and Andy Ong. This was because the entrusting party here was not GREIH, but GCM, and there was a master-servant relationship between GCM and Andy Ong. It was therefore sufficient that the accused person was an employee of the entrusting party. It was also submitted that Andy Ong had been entrusted with the property in his capacity as an employee of GCM “in the course of his regular duties and functions” – see Public Prosecutor v Lam Leng Hung [2018] 1 SLR 659 at [95].

63 The argument was as follows: GCM was in the business of the day-today management of GREIH’s asset; in performing its work for GREIH, GCM had control over GREIH’s bank accounts or property, and it was open to GCM to entrust its employee Andy Ong with dominion over GREIH’s bank accounts or property; and it did entrust Andy Ong with dominion over GREIH’s bank accounts in the course of Andy Ong’s regular duties as GCM’s CIO. In this regard, the prosecution also submitted that GCM did not need to own the property that it entrusted to Andy Ong; it was sufficient that “it had a right of possession over GREIH’s property given its contractual mandate to manage GREIH’s assets”, and a duty to collect all revenues and returns on GREIH’s behalf – see Pittis Stavros v Public Prosecutor [2015] 3 SLR 181 (“Pittis Stavros”) at [42] to [43].

64 On the funds said to be dishonestly misappropriated, to recapitulate (as set out in full in [5(n)] and [30] above), on 13 September 2012, $16,000,000 was transferred from GREIH’s UOB account (ending 7153), and out of this sum, the transfers of 13 September were made ($14,300,000 to ERC International and $1,500,000 to ERCU). Carol Ong testified that Andy Ong instructed her to make these September transfers, and that these were described as “advances” because the accounting department was unsure how to characterise them, but Andy Ong had instructed her to describe the $13,760,000 transfer as a loan. In late October 2012, Andy Ong told Carol Ong that the $16,000,000 was a “lease termination compensation” that GREIH was supposed to pay ERC Institute, and that the September transfers were part of that “lease termination compensation”. She then prepared the two letters with the subject heading “Lease Termination Compensation” to explain the September transfers and backdated them on Andy Ong’s instructions. Carol Ong testified that if she had known that the September transfers were supposed to be for “lease compensation”, she would have described them as such in the payment vouchers. ⁸⁷

65 Since the prosecution’s case was that that Andy Ong told Carol Ong an untruth when he said that the “lease termination compensation” was the basis for the $16,000,000 transfer out of GREIH’s UOB account (ending 7153) and for the September transfers, it meant that he had no reason to authorise the September transfers, and the transfers were thus a misappropriation from GREIH.

66 It was also submitted that this was a dishonest misappropriation because Andy Ong intended to cause wrongful gains to ERC International and ERCU, through the unlawful receipt of monies from GREIH, when there was no legitimate basis for GREIH to pay those monies to the two companies. GREIH therefore suffered a corresponding loss. ⁸⁸

67 As noted above (at [12]), Andy Ong submitted that he could not be found guilty of the CBT charge because the money transferred belonged to GREIH and Andy Ong was not a servant of GREIH. It was also pointed out that there was no loss suffered by GCM. ⁸⁹

68 Concerning the fund transfers, Andy Ong asserted in testimony that the $13,760,000 that was transferred from GREIH to ERC International was actually part of an “investment fee” of $14,080,000 that was owed by GREIH to GCM pursuant to clause 4.1(c) of the Management Agreement between GREIH and GCM (see also [5(d)]). He stated that having heard Carol Ong’s testimony, he now believed that the $13,760,000 was in fact the fees payable from GREIH to GCM, that the $540,000 was money owed by GREIH to ERCH, and the $1,500,000 was a loan from GREIH to ERCU, pursuant to a loan agreement dated 7 May 2012. ⁹⁰

69 It was therefore submitted on Andy Ong’s behalf that ⁹¹ :

(a) Concerning the $14,300,000, $13,760,000 had been erroneously transferred by Carol Ong and her team to ERC International, when this was meant to be management fees for GCM, while $540,000 was part of a series of intercompany transactions.

(b) The $1,500,000 was a drawdown of a loan dated 7 May 2012 between GREIH and ERCU.

(c) All these transfers had been determined solely by Carol Ong and her finance team, and Andy Ong had no intention to cause any wrongful gains to ERC International/ERCU, or corresponding wrongful loss to GREIH. Andy Ong’s “actions” had also resulted in “substantial tangible gains” for those who invested in NBCC.

(d) In any event, a separate $16,000,000 for the lease termination compensation was still due and owing from GREIH to ERC Institute, so the transfers of 13 September could not have been in violation of the law.

70 I paused to note two points. First, Andy Ong’s assertions in his testimony were contrary to his Case for the Defence, in which he denied that the transfers of $14,300,000 and $1,500,000 were dishonest misappropriations, simply on the ground that the monies were “due and owing from GREIH to ERC Institute as part of the compensation sum to ERC Institute for GREIH’s termination of the Lease Agreement.” ⁹² Second, assuming that Andy Ong changed his position after (as he claimed) hearing Carol Ong’s testimony, it was not put to Carol Ong that she made an error in the way she accounted for the $13,760,000, which was supposedly payment by GREIH to GCM for “investment fees”, or that due to this, ERC Institute had not in fact been repaid the $16,000,000 compensation allegedly owed to it.

71 It was also submitted that the prosecution had failed to put its case clearly to Andy Ong and thus failed to discharge its duty under the case of Browne v Dunn, since Andy Ong was deprived of a fair opportunity to answer the allegations of dishonest misappropriation. The prosecution could not therefore submit that Andy Ong was guilty of dishonest misappropriation. ⁹³

72 The prosecution submitted that Andy Ong’s new position concerning the reasons for the transfers was incredible. ⁹⁴

73 First, the $13,760,000 could not have been the investment fees payable by GREIH to GCM, for a few reasons:

(a) It made no sense that the fees owed to GCM were paid to ERC International, because while ERC Institute and ERC International were wholly owned by ERCH, GCM was 80% owned by ERCH and 20% owned by Sakae. There was thus no reason for a fee owed to GCM to be paid wholly to ERC International.

(b) Under clause 4.1(c) of the Management Agreement, the investment fee was payable only within 14 days of the completion of the sale or the divestment of NBCC. According to Andy Ong’s affidavit dated 23 November 2015 that he filed for Suit 1098, the sale of levels 1 to 5 of NBCC was completed only in October 2013 ⁹⁵ – if so, the investment fee would not have been payable as at September 2012.

(c) The investment fee payable to GCM had in any event been assigned to DBS as security for a loan that it extended to ERC International for the purchase of the House of Tan Yeok Nee. Andy Ong confirmed that as stated in his affidavit, the loan from DBS was secured by an assignment of the proceeds and fees that were payable to GCM under the Management Agreement. This deed of assignment was executed on or around 12 September 2012, and the amount assigned was up to $14,080,000. ⁹⁶ He also agreed that insofar as the $13,760,000 was part of the $14,080,000, it should not have been transferred to ERC Institute. ⁹⁷ Since Carol Ong had been in active discussions with DBS on or about 12 September 2012 over the quantum of GCM’s management fees that would be assigned to DBS and the documentation required, ⁹⁸ she could not have mistakenly sent $13,760,000 of GCM’s management fees to ERC International instead.

74 Second, the $1,500,000 could not have been a drawdown by ERCU of a loan from GREIH because by Andy Ong’s own affidavit, $8,950,000 of the $10,000,000 had already been drawn down, and was repaid only on 2 December 2013. ⁹⁹ This meant that as at September 2012, only $1,050,000 could have been drawn down, and not $1,500,000.

75 It was also submitted that Andy Ong’s claim that his actions resulted in “substantial tangible gains” for the investors of NBCC was a red herring, because any such gains should have accrued to GREIH/its shareholders, and if the monies had not been misappropriated, those gains would have been even greater.

76 On the other aspects of whether the charge under s 408 of the PC was made out against Andy Ong, the prosecution’s position was as follows.

77 In response to the defence’s submission that no loss was suffered by GCM, the prosecution’s contention was that GCM as the employer did not need to suffer loss in order for the charge to be made out. ¹⁰⁰ The chief basis for this was that there is nothing in the wording of s 408 of the PC which requires the employer to suffer loss. The defence had referred to a District Court decision, Public Prosecutor v Lee Siew Eng Helen [2005] SGDC 84 (“Helen Lee”), which noted (at [34]) that although this requirement was not explicitly spelled out in s 408, the section “does require that the loss be caused to the employer in some way.” The prosecution urged this Court not to follow this non-binding decision, and highlighted Chong Kum Heng v Public Prosecutor [2020] 4 SLR 1056 (“Chong Kum Heng”), a decision of the High Court in which a conviction under s 408 of the PC was upheld even though the employer did not regard itself as having suffered any direct loss or harm as a result of the appellant’s actions.

78 The prosecution also submitted ¹⁰¹ that it had fulfilled its obligations under Browne v Dunn, since Andy Ong was aware of the prosecution’s position that he had no legitimate basis for transferring GREIH’s money to ERC International or ERCU. In this regard, he had asserted in evidence-in-chief that he did not misappropriate any money, and disagreed in cross-examination that one of the possible reasons for moving the money was to misappropriate it, or that he had given instructions to create a sham lease agreement as it was a necessary part of his story that that the transfers of 13 September were compensation for lease termination.

79 I began my analysis by considering whether the fact that Andy Ong was not an employee or servant of GREIH was fatal to the charge for CBT as a servant. Two points were clear: Andy Ong was an employee or servant of GCM, but not of GREIH, and the property alleged to have been misappropriated was owned by GREIH and not by GCM.

80 In Pittis Stavros, the High Court held as follows (at [42]) in relation to an offence under s 408 of the PC:

81 The Court also noted (at [43]) the example of an employee who is given a work laptop by his employer which he then misappropriates or converts to his own use. Even if the employer did not own that laptop because it was purchased on credit terms which had not yet been fully paid and the title had therefore not yet passed to the employer, it was “not easy to see why the mere fact that the employer [did] not own the laptop [made] any difference to the employee’s criminal liability”.

82 In my view, this was dispositive of the defence’s argument that the charge could not be made out against Andy Ong only because he was not a servant of GREIH. Applying the principle in Pittis Stavros to the present case, the employer (GCM) did not need to be the owner of the property that was the subject of the charge, as long as the employer had some right to take possession of it, and the employer then delegated or conferred that right to its employee.

83 It was not disputed that under the Management Agreement between GCM and GREIH, GCM was to provide day-to-day management of GREIH’s asset, NBCC, and to collect all revenues and returns of GREIH’s investment on its behalf. Since GREIH was only a holding vehicle for the units in NBCC, GCM had been created to execute matters for GREIH, and in fact did so. Put another way, GCM and its employees were the “arms and legs” of GREIH. Thus, GCM’s employees such as Chua were in charge of meeting prospective tenants for NBCC, drafting lease agreements and following up with tenants on the stamp duty certificates, while the finance staff raised invoices to tenants. ¹⁰² Andy Ong, as the CIO of GCM, was a signatory of GREIH’s UOB account (ending 7153). The termination letters to the tenants of NBCC were on GCM’s letterhead, and even the backdated “compensation requests” that Ong Han Boon created as part of his “paper trail” were stated to be as between GCM and ERC Institute. I therefore agreed with the prosecution’s submission that to carry out its work as the manager of GREIH’s assets and being responsible for the collection of GREH’s revenues, GCM must have had a right of possession or control over GREIH’s property. This included control over the money in GREIH’s UOB bank account (ending 7153), which was a form of possession. It was open to GCM to entrust its employee Andy Ong with dominion over GREIH’s said bank account, and it did so entrust Andy Ong in the course of his regular duties as GCM’s CIO. It was therefore clear that there was entrustment by GCM of GREIH’s property to Andy Ong, and that GCM did not need to be the owner of the property alleged to be misappropriated in order for the offence under s 408 of the PC to be made out.

84 As for whether the employer needed to suffer loss, there is no such express requirement in s 408 of the PC. As noted above, a District Court in Helen Lee held that the section “does require that the loss be caused to the employer in some way” notwithstanding the express wording of the section. The court’s explanation for this conclusion was that s 408 requires that “the accused be a servant of the employer, and that the property be entrusted to him in that capacity. Loss to persons other than the employer is not relevant under s 408.” However, this explanation seems, with respect, somewhat circular, because inherent in it is the assumption that there must be loss to the employer.

85 A different conclusion was arrived at in Chong Kum Heng. In that case, the appellant worked for a company that carried out electrical and cabling works, and where there were excess cables (or “wastage”) left over after a job, the project managers were permitted to sell these as scrap, and use the sale proceeds for site expenses or out of pocket expenses for staff, which might not be claimable from the company as a petty cash claim. The appellant had pocketed these funds and enriched himself. Although the company (or employer) did not regard itself as having suffered any direct loss or harm from the appellant’s acts, the High Court upheld the appellant’s convictions under s 408 of the PC, because the manner of disposal of the wastage and use of the sale proceeds had been made clear to him. I noted that the company might not even have suffered indirect loss from the misappropriation, since the sale proceeds were ordinarily meant to be used for expenses that could not be claimed from the company in any event.

86 To round up this point, I noted that I was not bound by the District Court in Helen Lee but was bound by the High Court in Chong Kum Heng. I therefore accepted that based on Chong Kum Heng, it was not strictly necessary for the employer to have suffered loss before an offence under s 408 of the PC could be made out.

87 Thus, although it was GREIH’s funds and not GCM’s that were alleged to have been misappropriated and GCM arguably did not suffer any loss, I did not regard this as an impediment to finding that an offence under s 408 of the PC had been made out.

88 On the issue of whether Andy Ong had dishonestly misappropriated $15,800,000 by authorising the transfers of 13 September, my finding above in relation to the forgery charge was that Version 5 was a false document and there had been no valid lease agreement dated 1 March 2012 for ERC Institute to occupy four floors in NBCC for nine years (see [54]). If so, it could not have been “terminated” and by extension, no compensation could have been payable for such termination. This meant that insofar as Andy Ong’s defence to the CBT charge was that the funds were meant for the lease termination compensation and thus not misappropriations, I rejected this wholly.

89 As for whether Andy Ong knew that the transfers of 13 September could not have been for lease termination compensation, given my findings above that he was aware of the false and fraudulent nature of Version 5 (see [58]), I concluded that he must have known that there was no real compensation payable. The fact that the date of the alleged letter of termination was variable such that Andy Ong could, on 30 January 2013, give instructions to change its date to 31 July 2012 (see [5(t)]), reinforced the conclusion that there was no genuine termination. These instructions were proof of his role in creating a false documentary trail and false narrative to support this alleged lease termination. It therefore fortified the finding that he knew of the falsity of this alleged lease termination, and that there could not have been any compensation payable pursuant thereto. I would add that another indication that the fund transfers were not genuine compensation to ERC Institute was that the funds were never actually received by ERC Institute or used towards funding the rent for new premises, but instead diverted to ERC International for the purchase of the House of Tan Yeok Nee and to repay a loan owed by ERCU. Given that the transfers out of GREIH’s UOB account (ending 7153) happened just when funds were needed by ERC International and ERCU, it was difficult to arrive at any other conclusion than that the transfers were intended to assist the latter two companies with their liabilities, and that the purported reason for the transfers was created in an attempt to explain away the transfers (see also [56]).

90 I then considered the new narrative that Andy Ong gave in court, that the $13,760,000 was in fact investment fees owed by GREIH to GCM and the $1,500,000 was a loan from GREIH to ERCU. I agreed with the prosecution that this account was incredible, and was likely created because Andy Ong realised that his claim that the transfers of 13 September were for lease termination compensation could not stand.

91 Apart from the fact that the substantive points of this new narrative came up for the first time during Andy Ong’s testimony and had not been put to Carol Ong, I rejected this new narrative for the following reasons:

(a) Carol Ong could not have “mistakenly” transferred to ERC International the $13,760,000 that was meant for GCM’s investment fees because:

(i) The $13,760,000 was not due or payable to GCM as at 13 September 2012;

(ii) The amount had in any event been pledged to DBS for a loan to ERC International for the purchase of the House of Tan Yeok Nee and Carol Ong was involved in providing the relevant documentation to DBS; and

(iii) There was no reason for GCM to forward that whole amount to ERC International when ERC International was not its 100% owner.

(b) The $1,500,000 could not have been a drawdown of the loan from GREIH, since there was only $1,050,000 left to be drawn down from that loan.

(c) It was a poor excuse for Andy Ong to say that he “trusted” his finance team or left matters to them and blindly signed documents that they placed before him, when it was he who had given Carol Ong the instructions to execute the transfers of 13 September. It was not disputed that Andy Ong was the “top executive” in the ERC group of companies and its related companies, and I found it difficult to believe that the details and purposes of such large payments would have occurred without his express sanction and knowledge. The fact that Andy Ong instructed Carol Ong to draft a loan agreement for $13,760,000 between GREIH and ERCH to account for this fund transfer, but later told her that it would be accounted for as a “lease termination compensation”, also demonstrated his contemporaneous state of mind and knowledge that there had been no proper justification for the transfer. This was because if there had been a clear or valid justification for the transfer, then the reason for the transfer would not have been so changeable.

92 Assessing the evidence in its entirety, I found that Andy Ong knew that the transfers of 13 September were not on account of compensation payable by GREIH, were not monies owed by GREIH to GCM, and were not a drawdown on a loan from GREIH. This meant that there was no legitimate justification for these transfers, and they were made to give a wrongful gain to ERC International and ERCU, and by extension, a wrongful loss to GREIH. They were therefore a dishonest misappropriation of funds belonging to GREIH.

93 Finally, on the matter on whether the prosecution had discharged its obligation under Browne v Dunn, my view was that Andy Ong had clearly asserted his position in relation to the allegation of dishonest misappropriation. He put forward multiple explanations to justify the transfers and disagreed with the prosecution that the transfers could have been due to misappropriation. He disagreed with the prosecution’s position that no valid lease agreement existed as at March 2012 which was then terminated and which gave rise to compensation payable. He maintained that ERC Institute had a right to receive the said compensation, and also stated in any event that other sums could validly be drawn from GREIH at the relevant time – be it the investment fee allegedly owed to GCM, or the remainder of the loan to ERCU. Inherent in his assertions that there were legitimate reasons for the transfers was his position that they therefore could not have resulted in a wrongful gain or wrongful loss. He had asserted his position and had the opportunity to put forward his defence and explain himself. I therefore rejected the defence’s submission that the prosecution could not submit that there had been a dishonest misappropriation by Andy Ong.

94 All things considered, I was satisfied that the charge of CBT as a servant was proven against Andy Ong beyond a reasonable doubt, and I convicted him thereon.

95 On the charges of intentionally giving false evidence, the issues were whether what was said by each accused person in his affidavit was false, and that he knew it to be false, or did not believe it to be true. Thus, for this offence, the point in time at which to assess each accused person’s subjective intent was the time he made his affidavit.

96 Ho additionally submitted that an inadvertent error or lapse of memory in this regard would be insufficient to show that he gave false evidence. ¹⁰³ Chua submitted that as long as a person with his attributes believed that there were reasonable grounds for his statement to be true, then it was a sufficient defence. ¹⁰⁴

97 I considered the charges against each accused person in turn.

98 The charge against Andy Ong was that the false statement he gave in his affidavit dated 23 November 2015 was that, on or about 1 March 2012, he had arranged for a lease agreement between GREIH and ERC Institute dated 1 March 2012 to be signed by Ong Han Boon and Ho, and that he knew this to be false.

99 Andy Ong had stated in paragraph 2 of his affidavit ¹⁰⁵ that the matters deposed to in the affidavit were within his personal knowledge and were true. The portions of the affidavit relevant to his charge were as follows:

100 The version of the lease agreement which was attached to his affidavit was Version 5.

101 The prosecution’s submission was that Andy Ong had made a false statement because the evidence showed that versions of the lease agreement were prepared only around 20 June 2012, and Version 5 was only signed around 25 October 2012 but backdated to 1 March 2012. It was also submitted that Andy Ong knew that this statement was false because it was a continuation of his broader efforts to fraudulently justify the unauthorised transfers (that is, the transfers of 13 September) made by GREIH to ERC Institute, as Version 5 would make it look like ERC Institute was entitled to the said transfers. ¹⁰⁶

102 Andy Ong’s defence to the charge for intentionally giving false evidence had three main planks. The first was that his plan to formalise the intention to lease NBCC to ERC Institute on or about March 2012 was supported by the sequence of events since 2009. The second was that his account was corroborated by Ho’s, Chua’s and Amy Le’s testimonies. The third was that Ong Han Boon was an unreliable witness. ¹⁰⁷

103 To recapitulate, my finding above was that Version 5 was a false document that had been created and signed well after 1 March 2012, but had been backdated with the fraudulent intention of causing it to be believed that it was made on or about 1 March 2012. I also found that Andy Ong had instigated the creation of Version 5, knowing that it was a false document and knowing of the fraudulent intention underlying it. I also accepted that Andy Ong had first instructed Ong Han Boon in this regard at the earliest, in late June 2012.

104 In arriving at these findings, I had rejected the defence’s submission that any “plans” by ERC Institute to move into NBCC had been concretised into the execution of a written lease agreement by 1 March 2012, and also rejected the submission that Ong Han Boon had no credibility. I will not repeat those findings or conclusions here.

105 On the matter of whether Andy Ong’s defence was supported by the testimonies of Ho and Chua, I noted that Ho and Chua were co-accused persons with Andy Ong, charged with effectively telling the same untruth as him, as to the timing of the signing of Version 5. As noted by the prosecution, whether Ho and Chua were telling the truth was a material issue in dispute in this trial, and their testimony therefore could not in and of themselves be relied on to corroborate Andy Ong’s defence. ¹⁰⁸

106 As for whether Amy Le’s testimony corroborated Andy Ong’s account of events, my view was that her evidence did not assist either party to the extent that each asserted. Amy Le’s testimony was effectively that the earliest date she could have signed Version 5 was 14 March 2012. While this could mean that she signed it on or about 14 March 2012, it could also mean that she signed it in June or October 2012. In any case, given my findings that Version 5 could not have been created or signed before late June 2012, I did not think that Amy Le’s testimony corroborated the defence’s case.

107 It was therefore clear to me that Andy Ong did state a falsehood in his affidavit insofar as he stated that, on or about 1 March 2012, he had arranged for the “Lease Agreement” between GREIH and ERC Institute dated 1 March 2012 (that is, Version 5) to be signed by Ong Han Boon and Ho.

108 On the matter of whether he knew this to be false, given my findings above on his knowledge of the nature of Version 5 and the fraudulent intent underlying its creation, as well as its use to justify the large fund transfers from GREIH to ERC International and ERCU, I agreed with the prosecution that he must have known that this assertion in his affidavit was false.

109 I was therefore satisfied that the charge against Andy Ong for intentionally make the false statement in his affidavit was proven beyond a reasonable doubt, and I convicted him as charged.

110 The charge against Ho was that the false statement he gave in his supplemental affidavit dated 11 February 2016 ¹⁰⁹ (“supplemental affidavit”) was that he had signed a lease agreement dated 1 March 2012 between GREIH and ERC Institute prior to 9 March 2012, and that he knew this to be false.

111 Ho had stated in paragraph 2 of his supplemental affidavit that insofar as the facts deposed to in the affidavit were within his personal knowledge, they were true, and insofar as they were not within his personal knowledge and/or were based on correspondence, memoranda and other documents, they were true to the best of his knowledge, information and/or belief. The portions of the supplemental affidavit relevant to his charge were as follows, and they were made in response to an allegation by one Voon Sze Yin in her supplemental affidavit that Version 5 was a “sham Lease Agreement” that had been created and entered into on or around July 2012:

112 The “ERC Lease Agreement” he was referring to was Version 5, which had been attached to an earlier affidavit which he filed on 23 November 2015 ¹¹⁰ (“first affidavit”). In this regard, it should be noted that this ability to fix his conversation with Andy Ong about the en bloc offer relative to 9 March 2012 was a development from his first affidavit, in which he stated that he was unable to recall the exact date of this conversation.

113 For context, in his first affidavit, Ho had stated the following:

These paragraphs 66 to 69 were those that Ho cross-referred to at paragraph 14(c) of his supplemental affidavit.

114 In paragraphs 70 and 71 of his first affidavit, Ho then stated that based on documents disclosed in discovery, he understood that to facilitate the sale of levels 1 to 5 of NBCC pursuant to the strata title sale plan, GREIH terminated the ERC Lease Agreement and paid $16,000,000 in compensation to ERC Institute. In this regard, Colliers had also been engaged to prepare a report to provide data to ERC Institute for relocation opportunities. He stated that it appeared to him that the compensation paid to ERC Institute was based on the data in the Colliers report, and was based on the difference between the rental ERC Institute would have paid under the ERC Lease Agreement and the market rate for renting nearby properties. He also stated that he believed that given the profits to be earned under the strata title sale plan, terminating the ERC Lease Agreement was commercially justifiable.

115 On the objective falsity of Ho’s statement, the prosecution submitted that the evidence proved beyond a reasonable doubt that all the versions of the lease agreements were created and signed in or after June 2012. In this regard, it was pointed out that Ho himself, in cross-examination, accepted two points: first, that Version 3 must have come after Version 2, and that he could only have certified Version 3 as a true copy on or after 21 June 2012; and second, that Version 5 must have come about sometime after 25 October 2012, so he could not have signed it before then. ¹¹¹

116 On Ho’s subjective knowledge of the falsity of this statement, the prosecution submitted that he knew at the time of making his supplemental affidavit that he had not signed any lease agreement between GREIH and ERC Institute around March 2012. There were two main components to this submission.

117 The first was that Ho’s actions showed “that he was a party to Andy Ong’s plan to create the backdated lease agreement and use it as a “paper trail” to justify GREIH paying compensation to ERC Institute.” ¹¹² In support of this submission, the prosecution referred to Ho’s first affidavit and supplemental affidavit, which “completely matche[d] and corroborate[d] the false narrative” that Andy Ong tried to advance. ¹¹³ The relevant extracts from Ho’s affidavits have been set out at [111], [113] and [114] above. The prosecution submitted that contrary to these assertions in Ho’s affidavits, there was no evidence to show that any version of the lease agreement was signed in March 2012, and there was no justification either for the alleged termination of the lease agreement, or the paying out of the $16,000,000. It was also submitted that since the Colliers report was issued only in November 2012, it could not have formed a basis for Ho to believe as at September 2012 that any “compensation” was payable. In their reply submissions, the prosecution noted that the sequence of events that Ho advanced in his first and supplemental affidavits was that he signed the lease agreement between GREIH and ERC Institute first, then was told by Andy Ong that he and Douglas Foo had decided on the strata title sale plan, and that this would net GREIH far more money than an en bloc sale. It was thus that Ho agreed to the strata title sale plan, because the termination compensation, at S$16 million, was “far lower than the amount that GREIH could make” from an en bloc sale. ¹¹⁴ I will deal with the significance of this sequence in my analysis below.

118 The second component of the prosecution’s submission on Ho’s subjective knowledge of the falsity of his statement was that Ho had shown himself to lack credibility as a witness. This was because in his testimony in the present trial concerning the version of the lease agreement he recalled signing on or before 9 March 2012, he stated that apart from signing on the signature page, he had also signed on every page of the document as requested by the administrative clerk who brought him the document. ¹¹⁵ However, since the version that he attached to his first affidavit (Version 5), did not have his signature on every page, it could not have been the document that he claimed to recall signing. In this regard, Ho also testified that about half an hour after he signed the document, the clerk called him to say that there was an error in the document, and that he would need to re-sign it. But within a further five minutes, she called him again to say that they did not need him to re-sign the document, and that they would only use the last page. When he asked what then would happen with the certified true copy, she told him that they would come back to him when they finalised the details, but they never got back to him. ¹¹⁶ He therefore accepted in cross-examination that he should not have told the High Court in his first affidavit that Version 5 was the document that was handed to him to sign. ¹¹⁷ He also stated that he did not notice his missing signatures when signing the main affidavit because he did not go through the lease agreement/Version 5 when the lawyers passed it to him, and could have been “careless” in that regard. ¹¹⁸

119 The prosecution submitted that if Ho had been trying to give a truthful account of what happened, it was incredible that he would have omitted to tell the High Court that Version 5 was not what he had signed, but had been pieced together by staff from another document which he did sign. Next, his explanation that he was “careless” and did not go through the document before signing the main affidavit was unbelievable because as a defendant in Suit 1098, he was exposed to liability and would not have drafted an affidavit so carelessly. Thus, the prosecution contended that the reality was that Ho was not being truthful in his first and supplemental affidavits, and was merely seeking to confirm Andy Ong’s version of events, rather than tell the truth. ¹¹⁹

120 Ho’s case was that although he had no prior training in corporate governance, he had been invited to be a director of a number of Andy Ong’s companies because he was “corporately neutral”. Andy Ong told him that all he needed to do was sign documents that were presented to him. He thus had no executive, strategic or operational role. When documents were presented to him, he was not told what they were, and the person presenting the documents to him would merely point to the place he was to sign. For his part, he would “just glance at the headings at the most”, but sometimes, he did not. He added that he signed the directorship appointment documents in around February 2012, but that the appointments were backdated to 2011. ¹²⁰

121 His testimony, as stated in his supplemental affidavit, was that a few days after signing the lease agreement, he recalled meeting Andy Ong and congratulated him on the Edumall. However, Andy Ong told him that there might be changes, which shocked him. It was then that Andy Ong told him about the strata title sale plan, that instead of making $75 million on the sale of NBCC, they could earn $140 million, and that Andy Ong had gotten this idea from an “expert”. Ho also said that Andy Ong added that Ong Han Boon would be angry, since ERC Institute would not be able to move into NBCC. Ho’s evidence was that during the preparation for Suit 1098, he came to know of the email dated 9 March 2012 from Shaun Poh, and understood him to be the “expert” that Andy Ong had mentioned. It was thus that he linked their conversation to 9 March 2012. He added that because he signed the lease agreement about a month after he signed the directorship papers in February 2012, he placed the signing of the lease agreement in March 2012. He also noted, when the lease agreement was presented to him for signature, that, “Finally, it is here,” because the matter of the Edumall had been talked about for some time. ¹²¹

122 Ho’s defence was that since the prosecution’s case on when Version 5 was signed was based heavily on the evidence of Ong Han Boon, who was an unreliable witness, there was a reasonable doubt that Ho’s account in his supplemental affidavit was false.

123 In any case, it was submitted that even if it was proven that Ho’s statement was objectively false, there was a reasonable doubt whether he knew that his account was false. There were two main reasons for this.

124 The first was that any inaccuracies in his statement were attributable to the effluxion of time, since he made the supplementary affidavit in 2016 and the relevant events occurred in 2012. The fact that the High Court in Suit 1098 placed little weight on his evidence on the “precise details” of matters was cited to support this point. ¹²²

125 The second reason was that Ho did not know the true nature of the lease agreement when he signed it and thus had no intention to lie about it. It was submitted that Ho’s poor recollection of when he signed the lease agreement was “perfectly explicable [given] his minimal involvement in the day-to-day operations of GREIH”. His “limited business sophistication” and lack of understanding of the “true nature or implications” of the lease agreement also meant that he “could not have intended to lie about it”. Since he received only “high-level, big picture snippets of information”, he could not have been co-ordinating a false story with Andy Ong. It was also submitted that contrary to what the prosecution tried to establish, Ho did not have the requisite access to and information about GREIH to understand Andy Ong’s plans, and had signed the lease agreement in such a hurried and superficial way that he would not have read enough of it to understand its purpose. ¹²³

126 A further submission was that Ho’s concessions in cross-examination concerning the sequencing of Versions 3, 5 or 6 of the lease agreement were after the fact, and did not address the separate question of his belief at the time he signed the supplemental affidavit. Ultimately, it was contended that the language used by Ho in his supplemental affidavit, that he “believed” that he signed Version 5 before 9 March 2012, was the language of uncertainty and belief, not of certainty and assertion. ¹²⁴

127 I began my analysis on this charge with the matter of whether it was objectively false that Ho signed Version 5 prior to 9 March 2012. Given my findings above, it was clear that Version 5 could not have been signed any earlier than 22 June 2012. This meant that it was objectively false for Ho to say that he would have signed it prior to 9 March 2012.

128 I therefore moved to consider whether there was any evidence pointing to his subjective knowledge of the truth or falsity of his statement that he believed that he would have signed Version 5 prior to 9 March 2012, and whether there was any reasonable doubt that this was an intentional false statement made by him.

129 I first noted that Ho’s defence was essentially that his role as a director of Andy Ong’s companies was to sign whatever was put in front of him, without asking questions. He admitted that he only skimmed the documents and rarely knew what he was signing. In cross-examination, he went so far as to agree that his understanding of what Andy Ong told him was that he could “just sign blindly in respect of GREIH’s affairs”. Concerning a copy of the Certificate of Stamp Duty that had been issued for Version 3, which he had signed to certify as a true copy, when asked what he understood of what was being stamped, he replied, “I don’t know and I’m sorry to say that I don’t care.” ¹²⁵ This showed his lackadaisical attitude in signing documents relating to GREIH’s affairs.

130 I then noted the evolution of his accounts over time through four documents.

(a) First, in his statement to the CAD of 11 June 2015, he stated that he could not remember when he signed the lease agreement between GREIH and ERC Institute that was dated 1 March 2012, and that he did not know if it was so dated when he signed it. After being shown Chua’s email of 20 June 2012, he stated that it was “unlikely” that he signed the lease agreement on 1 March 2012, and that it was likely that he signed it after 20 June 2012. ¹²⁶

(b) Second, in a subsequent statement to the CAD on 2 September 2015, when asked whether Version 5 was the agreement that he signed on behalf of GREIH, he replied:

(c) Third, in his first affidavit of 23 November 2015, although no clear dates were given, he asserted that he had signed the ERC Lease Agreement/Version 5. As noted above at [113], he was also able to set out a clear sequence of events, of how Andy Ong told him about the en bloc offer, about rejecting it, about going for the strata title sale plan, and about the consequential termination of the said lease agreement.

(d) Fourth, in his supplemental affidavit of 11 February 2016, this account was developed further as shown in [111], as he was then able to fix the events relative to 9 March 2012 after seeing Shaun Poh’s email during discovery.

131 Given that Ho asserted in his statements given to the CAD that he was unable to recall when he signed Version 5 and that it was unlikely that he signed it before 20 June 2012, the question was: whether his subsequent change of position in his affidavits and his ability to furnish the requisite details was borne of a genuine but possibly mistaken recollection of the events, or was simply a false account concocted to shore up his defence of Suit 1098 and support the position that Version 5 was not a sham lease agreement.

132 As submitted by the prosecution, when Ho made his first affidavit, he knew what allegations had been made against him, and he was denying them. Thus, he set out (at paragraphs 15 and 16 therein) that the allegations against him concerned his conduct as a director of GREIH, that he had acted on Andy Ong’s instructions, and had caused GREIH to enter into various transactions, but he denied these allegations, asserting that he believed that he acted in GREIH’s best interests. ¹²⁸ This knowledge would have continued into the making of the supplemental affidavit, when he specifically disagreed that the ERC Lease Agreement/Version 5 was a sham lease agreement.

133 Bearing this in mind, I noted the specificity of the occurrences recollected in Ho’s supplemental affidavit, such as the contents of the conversation he had with Andy Ong, his thought process about the merits of the strata title sale plan for GREIH and his decision to agree with it in spite of the need to then terminate the lease agreement with ERC Institute. Ho then situated his signing of Version 5 before this conversation and these occurrences. This was a deliberate detailing of a sequence of events to allegedly try to date his signing of Version 5, and was not an isolated statement stating that he signed it around a particular date. These events were then linked to Shaun Poh’s email of 9 March 2012 to fix them relative to that date. In testimony, Ho also cited another reference event – his signing of the directorship documents around February 2012, which he said occurred about a month before he signed the ERC Lease Agreement/Version 5. Given the context and specific reference events given by Ho, these were clear efforts to place the signing of Version 5 in March 2012, and I agreed with the prosecution that Ho’s statement in his supplemental affidavit about when he signed Version 5 could not therefore have arisen out of an erroneous belief or innocent mistaken recollection due to the effluxion of time.

136 I also had difficulties with Ho’s credibility, due to key inconsistencies in his evidence. I noted two main points in this regard.

(a) First, in his testimony on the matter of his signing of the lease agreement, he asserted that while signing every page of the document, he could not catch anything “substantial” or “any detail that [he] could actually absorb”, and “practically [saw] nothing”. ¹²⁹ However, he also professed to know that what he signed on that particular occasion before 9 March 2012 was the lease agreement between GREIH and ERC Institute for the renting of levels 3 to 6 of NBCC. It was clear that both these assertions could not be true, for if he had indeed signed blindly or in a hurried and superficial manner, then he would not have known the details of what he was signing, such that he could, nearly four years later, clearly reference it to specific events. In the same vein, he had asserted in examination-in-chief that he knew the significance of the lease agreement when it was handed to him to sign, because it meant that the Edumall plan was “finally” moving after it had been talked about for a long time. However, in cross-examination, when it was pointed out to him that the date of the lease agreement did not reflect the date it was signed and this was “strange for an important contract”, he replied that, “At the time of signing the lease agreement, I wouldn’t know, and I wouldn’t be … experienced enough to actually figure that part out.” ¹³⁰ Insofar as Ho was claiming that he was too inexperienced to figure out that this was an important contract, this was clearly inconsistent with his earlier assertion that he realised its significance when it was presented to him.

(b) Second, in the course of his testimony, Ho disowned certain portions of his first affidavit. For example, he stated that paragraphs 68 and 69 of his first affidavit, concerning his agreement to the strata title sale plan and that he left GCM to handle the termination, were “wrong”, because his oral evidence was that he did not know about the termination or the possible compensation. ¹³¹ Assuming that those statements in his first affidavit were indeed wrong and that his testimony was true, then taking this together with his concession that his first affidavit was inaccurate insofar as Version 5 was not the version of the lease agreement that he had signed, these were highly indicative of his lack of regard for the accuracy of his first affidavit. Given that he admitted to generally signing the ERC or GREIH-related documents “blindly”, this led to the high likelihood that also signed his supplemental affidavit with a similar lack of regard over its contents and its accuracy.

137 Due to the inconsistencies and illogical nature of Ho’s testimony, I found it difficult to put weight on his testimony and his stated recollection of knowingly signing Version 5 before Andy Ong told him about the en bloc offer. Given the context in which his assertions in his first and supplemental affidavits were made, I was not convinced that they were incorrect recollections. Instead, I was satisfied that they were deliberate statements made which were intended to support the case that Version 5 was not a sham lease agreement. My view was that Ho did indeed sign the GREIH-related documents with little regard to what they contained, and that it was extremely unlikely that he knew that he was signing Version 5 (or any precursor version of it) at the time he signed it. If so, he could not have realistically or honestly pegged that signing event to his conversation with Andy Ong about the en bloc offer. By extension, this meant that an assertion by him that this signing event specifically took place before his said conversation with Andy Ong, or that he believed that this signing event specifically took place before that conversation, could not have been true or an honest belief, and Ho must have known this. Therefore, by asserting in his supplemental affidavit that he believed that he signed Version 5 prior to 9 March 2012 (which was the earliest date Andy Ong could have told him about the en bloc offer), I was satisfied that had Ho intentionally made a false statement, and in my view, no reasonable doubts had been raised as to this.

138 I noted that Ho’s charge did not exactly mirror the wording of his supplemental affidavit, in that it did not specify that his statement was one of mere “belief”. However, I did not regard this as impediment to my convicting Ho of the charge, since as noted above, I was in any event satisfied that he both had no belief in the truth of the statement, and knew it to be false. I was therefore satisfied that the charge against Ho was proven beyond a reasonable doubt, and I convicted him as charged.

139 The charge against Chua was that the false statement he gave in his affidavit dated 15 February 2016 was that he had, sometime in February 2012, prepared a draft lease agreement dated 1 March 2012 between GREIH and ERC Institute, and had seen the said signed agreement sometime in March 2012, and that he knew this to be false.

140 Chua had stated in paragraph 2 of his affidavit ¹³² that insofar as the facts deposed to in the affidavit were within his personal knowledge, they were true, and insofar as they were not within his personal knowledge and/or were based on correspondence, memoranda and other documents, they were true to the best of his knowledge, information and/or belief. Chua was responding to the same supplemental affidavit of Voon Sze Yin that Ho was responding to in his supplemental affidavit. The portions of Chua’s affidavit relevant to his charge were as follows:

141 It was not disputed that there was least one precursor version to the affidavit that Chua eventually signed and filed for Suit 1098, and that this draft was circulated amongst the relevant lawyers by email on 13 February 2016 at 10:59 pm (“13 February draft”). The relevant portions stated as follows:

142 On the objective falsity of Chua’s statements, the prosecution submitted that the evidence proved beyond a reasonable doubt that Chua was party to Andy Ong’s plan to create the false paper trail, because he had created various versions of the lease agreement from June to October 2012, knowing that they were all backdated to March 2012. Since Chua knew about and was party to Andy Ong’s plan to create the false documents, he must have known that he neither prepared a lease agreement in February 2012 nor saw a signed version thereof in March 2012. ¹³⁵

143 As for Chua’s subjective knowledge of the falsity of his statements at the time he affirmed his affidavit, the prosecution pointed to the timeline of Chua’s emails and the creation of the lease agreements. To recapitulate:

(a) On 20 June 2012, Chua sent Ong Han Boon an email attaching Version 1, “as requested”. He stated that a one-month deposit was needed, and that there would be a late stamping penalty. (See [5(i)] above.)

(b) On 21 June 2012, Chua sent Ong Han Boon an email attaching Version 2, “[a]s revised”. (See [5(j)] above.)

(c) On 22 June 2012, Ong Han Boon replied, stating that he would “sign and return with 1 month cheque deposit.” Ong Han Boon also directed that the cheque be backdated to 15 March 2012. (See [5(k)] above.)

(d) On 26 July 2012, after receiving Ong Han Boon’s instructions to stamp the lease agreement, Chua informed Ong Han Boon that he had submitted the document for stamping and stated the late stamping penalty payable. (See [5(m)] above.)

(e) On 25 October 2012, Chua emailed Version 4 to Ong Han Boon, stating that he had “put in level 3 as well”. (See [5(q)] above.)

(f) On 30 January 2013, Chua emailed Ong Han Boon and others to inform them that Andy Ong had, the day before, changed the date of the letter of termination of the lease agreement between GREIH and ERC Institute, to 31 July 2012. He attached a signed copy of the letter to his email. (See [5(t)] above.)

144 The prosecution noted that Chua had agreed in his testimony that he had prepared the multiple versions of the lease agreement from June 2012 onwards, as well as the termination letter which was eventually dated 31 July 2012. ¹³⁶ Notwithstanding this documentary record, Chua asserted that he had prepared an earlier version of the lease agreement in February 2012, but had deleted it because there was “no need for [that] soft copy anymore”, and had passed the signed hard copy to ERC Institute for stamping, without retaining a copy. ¹³⁷ The prosecution submitted that Chua’s evidence in this regard was “absurd”, and made two points. First, it was “ludicrous” that Chua would not have kept a copy of the lease agreement as GREIH’s asset manager, since a lease agreement for the leasing of four floors of NBCC would be legally and commercially significant to GREIH as this constituted the majority of its assets. Second, despite supposedly deleting the soft copy in March 2012, Chua was able to recall, in his Case for the Defence filed on March 2020 ¹³⁸ , exactly what the file name of the soft copy was. ¹³⁹

145 The prosecution also noted Chua’s inability to satisfactorily explain why he sent Ong Han Boon a soft copy of the lease agreement that referred only to level 6 of NBCC on 20 June 2012, despite claiming that he knew that Ong Han Boon wanted the version containing levels 3 to 6, and why he did not say in his cover email that this was not the right lease agreement, but it was the only soft copy he had. ¹⁴⁰ I will deal with this point in greater detail below.

(a) In examination-in-chief, he stated that prior to 20 June 2012, he asked Ong Han Boon about “the status of the stamp duty”, and Ong Han Boon then asked Chua for a soft copy of the lease agreement so that he would know what Chua was talking about and could check where the physical copy was. However, Chua “accidentally” attached a copy of the lease agreement containing only level 6 (Version 1), because by that time, they were preparing for the strata title sale of levels 1 to 5 of NBCC, with only level 6 left for ERC Institute’s use. As he thereafter realised that he had sent the wrong attachment, he sent Ong Han Boon the lease agreement referring to levels 3 to 6 (Version 2) on 21 June 2012. ¹⁴¹

(b) In cross-examination, after initially reiterating that he attached Version 1 to his email of 20 June 2012 by mistake, Chua then stated that he deliberately attached Version 1 in that email, because he thought that that was the version that Ong Han Boon wanted. This then changed to him saying that although he knew that Ong Han Boon wanted the version containing levels 3 to 6, he no longer had a soft copy of that lease agreement as he had deleted it, so he sent Version 1 to Ong Han Boon because that was the only version he had with him. ¹⁴²

147 In his submissions, Chua pointed out that his affidavit began with the usual declaration that where facts deposed were within his personal knowledge, they were true, and where they were not within his personal knowledge, they were true to the best of his knowledge, information and belief. It was contended that where a deponent was not affirming specific information to be true as to his knowledge, then he was effectively not attesting to the accuracy of that information. For Chua, it was submitted that he went even further by stating in paragraph 34 of his affidavit that he was unable to recall exactly when he prepared it – this meant that he was stating unequivocally that he did not know when the lease agreement was created. It was therefore submitted that it was difficult to see how he could be lying when he stated a belief that it was in February 2012. A similar submission was made concerning paragraph 36 of his affidavit, in which he stated that he believed that he saw the signed lease agreement sometime in March 2012. ¹⁴³ It was also noted that it was not disputed that the Edumall idea existed, along with designer sketches of floor plans of NBCC showing a campus layout, and that there was a careers fair. It was submitted that these were consistent with what Chua stated at paragraph 34 of his affidavit, and it was clear that there were reasonable grounds for his beliefs, which went a long way towards rebutting any suggestion that he did not have an honest belief in what he stated.

148 Chua testified that the 13 February draft had been changed because upon reviewing it, he told the lawyers that he “wasn’t comfortable with the way it was written” as he could not recall the exact dates he prepared and sighted the lease agreement. When the lawyers asked him to recollect based on events that happened around that time, he recalled that before the careers fair, Ong Han Boon had told him to prepare a lease agreement. It was thus that he re-wrote the 13 February draft, and the version of the affidavit filed in Court came about. He also stated that he used language such as “I believe” and “To the best of my recollection”, because he could not exactly remember the events. ¹⁴⁴ It was submitted that it was reasonable for a person in Chua’s position, who had been called on to depose to an affidavit “at the very last moment”, to rely on the approach suggested to him by the lawyers, ¹⁴⁵ especially since his case was that when making the affidavit, he had no reference to his emails of February to October 2012, and certainly not those of June 2012. It was thus argued that the prosecution’s submission, that the documentary record proved beyond reasonable doubt that the lease agreement was created in June 2012, missed the point. This was because the real inquiry was not when the lease was created, but whether reasonable grounds existed for him to state what he did in his affidavit, bearing in mind that his memory would have faded by 2016. ¹⁴⁶ In essence, Chua’s position was that choosing his words deliberately and carefully for his affidavit was not an offence. ¹⁴⁷

149 It was also submitted that Chua was not part of the “paper trail” that Andy Ong gave instructions to create, because he was merely following his boss’ instructions, rather than agreeing with what his boss was telling him to do. In this regard, if he had been part of Andy Ong’s plan to create a false paper trail, then he would have been a party to Suit 1098, which he was not. It was also pointed out that unlike Andy Ong and Ho, he was not an investor or shareholder in Andy Ong’s ventures, but merely a salaried employee. It was thus submitted that he had no vested interest in the lease agreement. ¹⁴⁸

150 Finally, Chua pointed out that no lease agreement was attached to his affidavit, and that Voon Sze Yin’s supplemental affidavit had not been admitted into evidence. He thus did not know which version of the lease agreement was being referred to in paragraph 33 of his affidavit, and it was thus “impossible” to identify the lease that he was referring to, and consequently “impossible” for the court to conclude that he was lying in the affidavit. ¹⁴⁹

151 I began my analysis by considering Chua’s submission that because he did not exhibit Version 5, or any version of a lease agreement, in his affidavit, it was thus impossible for this court to identify the lease agreement that he was referring to in his affidavit. I agreed with the prosecution that this was a “red herring”, for two main reasons.

152 First, Chua claimed to be careful enough in the preparation of his affidavit such that he declined to attest directly to matters concerning the preparation and sighting of the lease agreement which he said he was unable to exactly recall. As a matter of logic, he must have known which version of the lease agreement was being referred to, before he could say that he was unable to recall exactly when he prepared it or saw the signed version of it. I therefore found it difficult to accept his assertion that he did not know which lease agreement he was referring to in his affidavit.

153 Second, it was clear in any event from the context in which the said lease agreement was referred to in Chua’s affidavit, that he was referring to Version 5. There were at least two clear indications of this:

(a) The lease agreement was defined in Chua’s affidavit and referred to as the “ERC Lease Agreement”, which, in Ho’s supplemental affidavit, referred to Version 5. This same definition would not have been used in other affidavits for the same suit unless it was referring to the same document. Andy Ong’s affidavit also referred to Version 5.

(b) Chua was responding to Voon Sze Yin’s supplemental affidavit, which had alleged that Version 5 was a sham lease agreement, and Chua’s responses referred to the same features about the lease as in Ho’s supplemental affidavit. Chua and Ho must therefore have been referring to the same lease agreement, that is, Version 5. The said same features were: that the lease agreement was between GREIH and ERC Institute; that it was signed by Ho for GREIH and Ong Han Boon for ERC Institute; that it was purported to be signed before Andy Ong’s communication that the Edumall concept would not be proceeded with and the strata title sale plan would take its place; and that the signed copy would have existed in March 2012. It would have been too coincidental for another lease agreement with all these features to have existed and for Chua to have been contemplating or referring to it for the purposes of Suit 1098.

154 I therefore rejected the submission that it was impossible for the court to identify the lease agreement that Chua was referring to in his affidavit.

155 I then moved on to consider whether Chua could have prepared Version 5 sometime in February 2012, or whether he could have seen a signed version thereof sometime in March 2012. Given my findings above (at [49]), it was clear that Version 5 could not have existed before 22 June 2012, and Chua therefore could not have seen it sometime in March 2012.

156 As for whether he could have prepared the unsigned draft sometime in February 2012, the defence noted that because Version 1 clearly existed in Chua’s computer on or about 20 June 2012 such that he could email it to Ong Han Boon, there must have been a pre-existing draft of the document. This presumably gave rise to the possibility that there could have been a version existing as at February 2012, which Chua had prepared for signature. While I accepted that this was a possibility, I found that the evidence pointed to this being of extremely low probability. My reasons were as follows.

(a) First, there was no email trail of any draft lease agreement between GREIH and ERC Institute having been prepared in February 2012, despite searches having been done for months in 2013/2014 when Chua, Ong Han Boon and others were assisting Andy Ong in the preparations for Suit 1098. ¹⁵⁰

(b) Second, if a genuine lease agreement between GREIH and ERC Institute for the renting of levels 3 to 6 of NBCC had indeed been prepared in February 2012 and signed in early March 2012, then given its significance, it was extremely unlikely that it would not have been stamped and that the one-month deposit would not have been paid. It was also unbelievable that Ong Han Boon (as the Chief Executive Officer of ERC Institute) would not have known what happened to that lease agreement or what it looked like such that he needed Chua to send him a soft copy of it so that he would know which lease agreement Chua was talking about when Chua supposedly asked him about the stamping of that document.

(c) Third, assuming there had been a version of the lease agreement in March 2012 that had been signed by Ho for GREIH and by Ong Han Boon for ERC Institute, then if Ong Han Boon needed to see it in June 2012, he would simply have told his staff to find the version that had been signed in March, instead of going through the trouble of generating a further soft copy, printing it, and signing it or about 22 July 2012. Even if there had been a version of the lease agreement prepared in February 2012 and executed in March 2012 which got lost, and Version 3 was executed to replace that lost lease agreement, then there was no need to back-date cheque payment for the one-month deposit.

(d) Fourth, I agreed with the prosecution that given the significance of this lease agreement for GREIH, it was absurd that Chua would have deleted the soft copy by June 2012 such that he was unable to send it to Ong Han Boon on 20 June 2012 at the first time of asking.

157 In the absence of any evidence to support Chua’s bare assertion that he prepared any lease agreement concerning GREIH and ERC Institute in February 2012, coupled with the objective evidence showing that attempts to create such a lease only began in June 2012 in a manner which was inconsistent with there having been a pre-existing version prepared and signed, I could not but conclude that such an assertion was against the weight of the evidence, and objectively false. I therefore found that it was objectively false for Chua to have said that he prepared Version 5 sometime in February 2012.

158 On Chua’s subjective knowledge of the falsity of his assertions in his affidavit, I accepted that this needed to be determined as at the time he made the affidavit in February 2016. I also accepted that it would have been reasonable for him to accept the lawyers’ suggestion to try to date his actions relative to other events, and that he might have forgotten certain events by that time. That said, although it was not disputed that Chua was not a party to the lawsuit and was called upon to attest to this affidavit very late, he was not coming in completely “cold” to this series of events. As noted in [156(a)] above, in 2013/2014, he had been assisting with the search for documents in Andy Ong’s defence to Suit 1098, and he knew that there was no email trail showing that any draft lease agreement between GREIH and ERC Institute had been prepared in February 2012. By February 2016, he had also given at least two statements to the CAD, on 11 June 2015 and 30 September 2015, and the latter referred to his email of 20 June 2012 to Ong Han Boon. ¹⁵¹ It was therefore not the case that when he made his affidavit, he was guessing at dates or suddenly being asked to speak of events which he had not thought about for many years.

159 To be clear, I rejected the defence’s submission that Chua was not attesting to the accuracy of the information in his affidavit or that he had stated unequivocally that he did not know when the ERC Lease Agreement was created. The effect of the statements in his affidavit was more nuanced than that:

(a) Although Chua stated in his affidavit that he was “unable to recall when exactly” he prepared he prepared the draft ERC Lease Agreement, he pointed to certain events in paragraph 34(a) and stated that based on those, he believed that he prepared the document sometime in February 2012. This was therefore an assertion that he believed that latter fact. Thus, even if a reference event such as the careers fair did happen in early March 2012, if it could be shown that it was not possible for Chua to reasonably believe that assertion of when he prepared the document, or that he must have known it to be false, then his assertion would be false.

(b) Similarly, with the assertion of his belief that he saw the signed ERC Lease Agreement sometime in March 2012, this was with reference to certain events in paragraph 35, which he stated happened to “the best of [his] recollection”, after he prepared the ERC Lease Agreement. Notwithstanding that a reference event such as the engagement of a surveyor for the strata title sale did happen in late March 2012, if it could be shown that it was not possible for him to reasonably believe that he had seen the signed document in March 2012, or if he must have known it to be false, then his assertion would be false.

Thus, my view was that the fact that certain reference events occurred did not necessarily mean that Chua was telling the truth as to his belief that his preparation of the ERC Lease Agreement or sighting of a signed copy of it happened in a specific sequence relative to those events.

160 Bearing this in mind, I considered the undisputed and objective events that had occurred in 2012 and early 2013, in particular the series of emails referred to at [143] above. On the face of these emails and Ong Han Boon’s explanation of them, they showed that there was no signed version of any lease agreement between GREIH and ERC Institute as at 20 June 2012, much less as at March 2012. Chua’s explanations of his emails of 20 and 21 June 2012 (as set out in [146]) also left much to be desired, which led me to the conclusion that he had no good explanation for them, and was lying. I elaborate.

(a) As noted above at [156(b)] and [156(c)], given the significance of a lease agreement between GREIH and ERC Institute for the rent of levels 3 to 6 of NBCC, it was difficult to believe that Ong Han Boon would not have known what it looked like such that he needed Chua to send him a copy. If a signed lease agreement existed, Ong Han Boon would also surely have known about this and would have asked Chua or a staff member of ERC Institute to retrieve it for his viewing, instead of asking for an unsigned soft copy. It was therefore difficult to believe Chua’s reason for why Ong Han Boon asked for a soft copy of the lease agreement. This account was also not put to Ong Han Boon, which suggested that it was an afterthought by Chua.

(b) This was then exacerbated by Chua changing his explanations of why he sent Ong Han Boon Version 1 (containing only level 6) in his email of 20 June 2012:

(i) He first said that he accidentally sent Version 1 when he knew that Ong Han Boon wanted the version containing levels 3 to 6, and thus sent the “correct” version the next day;

(ii) He then said that he deliberately sent Version 1 because he thought that was that Ong Han Boon wanted the version with only level 6; and

(iii) He finally said that he deliberately sent Version 1 because he no longer had the version containing levels 3 to 6.

It was clear that the final version of Chua’s explanation did not make sense given that he stated in his email “as requested”: if he was knowingly sending Ong Han Boon the “wrong” document because that was the only soft copy he had, he would clearly have stated so in his email, instead of “as requested”. Chua’s vacillating evidence on this key point was indicative of his untruthfulness, and lent weight to Ong Han Boon’s evidence that there was no honest reason for asking for the draft lease agreement, since it was to create a forged document. It was also highly suggestive of Chua’s knowledge of this purpose of the soft copy, hence his changing attempts to explain himself.

(c) Apart from the changing explanations, as noted at [156(d)] above, I found it absurd that if Chua had prepared the soft copy of the lease agreement containing levels 3 to 6 in February 2012, he would have deleted it by June 2012, such that he could only send Version 1 to Ong Han Boon in June 2012. This was especially so given the significance of this lease agreement to both GREIH and ERC Institute. This inclined me to the finding that he was lying that it had been prepared in February 2012.

(d) Further, Chua stated in his email of 20 June 2012 that a penalty for late stamping was needed. I considered the possibility that there was in existence a version of the lease agreement signed in March 2012 that had not yet been stamped and needed to be stamped late in June 2012 (see also [45] above). However, this possibility was negated with Ong Han Boon’s email of 22 June 2012, stating that he would sign the lease agreement sent to him and return it with the one-month deposit. Clearly, if he had to sign the lease agreement as at 22 June 2012, then no signed version was in existence then. Also, as noted in [156(c)], if the signed lease agreement had been in existence since March 2012, there would also have been no need to backdate the cheque payment. In all, this affirmed the position that there was no signed version of the lease agreement in existence before 22 June 2012, that a fresh lease agreement was being created in June 2012, and that Chua must have known this, so any assertion to the contrary was a lie. It was in this regard that I agreed with the prosecution’s position that Chua was “party” to Andy Ong’s plan to create a false paper trail, insofar as he knowingly played a role in the creation of false lease agreements. Whether this amounted to an offence on Chua’s part was not in issue in this trial, and I did not consider this point further.

161 There was also Chua’s email of 25 October 2012 telling Ong Han Boon that level 3 had been “put in” as well. This did not sit well with Chua’s account, since the strata title sale plan had already proceeded by then and there was clearly no reason for GREIH and ERC Institute to execute any lease agreement. Chua was unable to explain in cross-examination why he was circulating a lease agreement which he knew was “dead” and could no longer be performed, apart from saying that he was just doing what he was told. ¹⁵² My view was that even if Chua was following Ong Han Boon’s instructions, he must have realised that the circulation of this draft was at odds with there having been a signed lease agreement in March 2012.

162 The final piece of undisputed and objective evidence was Chua’s email of 30 January 2013 stating that Andy Ong had amended the date of the termination letter for the lease agreement between GREIH and ERC Institute. While this was not directly related to the preparation of the lease agreement, it would have added to his knowledge of the oddities surrounding this lease agreement, and lent some (though not critical) weight to the prosecution’s submission that Chua must have known of the lease agreement having been a belated creation, and its alleged termination, a charade.

163 To round up this point, given that I found that Chua was lying about his June 2012 emails, I considered why he did so. When looked at within the frame of his 25 October 2012 email and the 30 January 2013 email, as well as Ong Han Boon’s evidence, I was left with little option but to conclude that Chua must have known that there was no signed lease agreement in the form of Version 5 in existence as at March or June 2012, and he was lying either to minimise his role, or to support Andy Ong’s version of events. As for whether Chua had prepared a version of the lease agreement in February 2012, there was no objective evidence to this effect. Given Chua’s lies about the June 2012 emails and his inability to explain why they were necessary if he had prepared a version of the lease agreement in February 2012 and it had been signed, it was difficult for me to give any weight to his bare assertion that he had prepared such a lease agreement, and I was thus unable to accept that he had any genuine belief that he had done so. I was also unable to accept that Chua had forgotten the key details of what transpired, given his involvement in these events in 2012/2013, and his role in the search for documents in 2013/2014 to support Andy Ong’s defence of Suit 1098. With this state of mind and knowledge that Chua brought into the making of his affidavit, I then considered the manner in which it was drafted.

164 Concerning the changes that Chua made to the 13 February draft of his affidavit, the issue was whether they reflected a genuine attempt to craft an affidavit that he could honestly believe in, or whether, as the prosecution submitted, Chua was “deliberately trying to obfuscate”, by supporting the false narrative that Version 5 was signed in March 2012, yet toning down the lawyer’s draft, because he knew that it was untrue. ¹⁵³

165 As noted above at [141], the 13 February draft stated (at paragraphs 33(a) and 45) that Chua prepared the ERC Lease Agreement sometime in late February or early March 2012, and that he recalled having sight of the signed document sometime in March 2012. Chua’s case was that he amended this because he was uncomfortable with it as he could not exactly recall the dates he prepared and sighted the ERC Lease Agreement. The prosecution submitted that Chua’s discomfort with this came from the fact he knew that the facts in that draft were false, because he was directly involved in preparing multiple drafts of the lease agreement from June 2012, stamping Version 3 and paying the late fees to IRAS in July 2012, and preparing other false documents, including the termination letter which had its date changed in January 2013, to 31 July 2012. Chua therefore attempted to protect himself by softening the language in the 13 February draft, by stating that the facts were “to the best of [his] recollection” and couched his assertions as statements of mere belief. It was submitted that these were not corrections towards the truth, but equivocal words chosen so that he did not have to commit to a specific date or time period that could be proved false, while still corroborating Andy Ong’s false narrative. ¹⁵⁴

166 Given my findings in [163] above that Chua must have known that there was no signed lease agreement (or Version 5) in March 2012, any assertion that he saw it, or that he believed that he saw it, must have been knowingly false. Given my rejection of Chua’s bare assertion that he had prepared a draft of the lease agreement in February 2012, he would have had no reasonable grounds for such a belief, and any assertion of such a belief must also have been false. If so, I agreed with the prosecution’s submission that the amendments that Chua made to his affidavit were not a demonstration of his honesty or caution in avoiding making assertions when he was unable to remember events, but that they were amendments to make his statements vague while still supporting Andy Ong’s narrative. In this regard, I did not think that placing his beliefs or assertions relative to certain undisputed reference events assisted Chua, since it was clear that these events were selected to situate his acts around February/March 2012.

167 Ultimately, as in Ho’s case, although Chua’s charge did not exactly mirror the wording of his affidavit, in that it did not specify that his statements were of mere “belief”, I did not regard this as impediment to my convicting him of the charge. This was because I was in any event satisfied that he knew his statements to be false, or had no reasonable grounds to believe that they were true. I was therefore satisfied that the charge against Chua was proven beyond a reasonable doubt, and I convicted him accordingly.

168 I then moved to consider the appropriate sentences to impose on the accused persons. The parties’ sentencing positions on the respective charges were as follows.

169 On Andy Ong’s charge for CBT as a servant under s 408 of the PC (DAC 926686/2018), the prescribed maximum punishment was 15 years’ imprisonment, with the offender also being liable to a fine. However, as this matter was tried in the District Court, the maximum permissible imprisonment term was 10 years and the maximum fine, $30,000.

170 I began by considering the four aggravating factors relied on by the prosecution, and the defence’s response on each. I also considered the chief mitigating factor and the weight to be given to it.

171 First, the prosecution noted the amount of money misappropriated, which was $15,800,000. The prosecution submitted that all things being equal, the larger the amount misappropriated, the greater the offender’s culpability and the more severe the sentence. ¹⁵⁵ The defence accepted that quantum was a relevant sentencing consideration, but contended that the prosecution’s reliance on the figure of $15,800,000 was an “over-simplification”, and was “not a substitute for a careful assessment of [Andy Ong’s] actual culpability, the nature of the entrustment, and the circumstances in which the transfers were made”. ¹⁵⁶

172 Second, the prosecution submitted that Andy Ong abused the high level of trust reposed in him, since he was the CIO of GCM and the top executive running it, he was the head of the ERC group of companies, and he was one of the most senior executives overseeing the functions of GREIH. He was also a signatory of GREIH’s UOB account (ending 7153), and the other signatory, Ong Han Boon, took instructions from him. His sentence should thus reflect his “elevated position of trust and special level of responsibility”. ¹⁵⁷

173 In response, the defence contended that Andy Ong’s seniority within GCM and the ERC group of companies did not, without more, establish an elevated trust that warranted a separate sentencing uplift. Three main points were made in this regard:

(a) That the “relevant trust must be assessed by reference to [GREIH,] the entity whose property was allegedly entrusted”, and that GREIH’s appointment of GCM as its asset manager “d[id] not make every senior officer of GCM a direct servant, employee or fiduciary of GREIH for sentencing purposes”.

(b) That Andy Ong being a mere signatory to the relevant bank account did not in itself mean a heightened abuse of trust, since it did not mean that “he personally determined the accounting basis, payment allocation or inter-company treatment of each transfer”.

(c) That Andy Ong being the top executive in charge of running GCM merely described his authority within the company, while the fact that Ong Han Boon took instructions from him merely described their working relationship. ¹⁵⁸

174 The third aggravating factor raised by the prosecution was that Andy Ong “took elaborate steps to avoid detection”, since he procured at least three other persons to “manufacture a ‘paper trail’ to falsely represent the misappropriated $15,800,000 as a legitimate compensation for lease termination”. The documents in this paper trail included draft backdated letters of demand (ie, the compensation requests), a backdated notice of termination, and the backdated Colliers report. In this regard, the prosecution stressed that they were not relying on the creation of the forged lease agreement (or Version 5) as a specific aggravating factor for this charge, since that would be the subject of sentencing for that separate charge. It was also submitted that this cover-up took place over an extended period, from as early as June 2012 to January 2013. ¹⁵⁹

175 The defence contended that the “alleged forged lease” was already the subject of a separate charge, and the prosecution should not be allowed to “double-count” that by characterising “the same factual substratum more broadly as a ‘full false paper trail’”. ¹⁶⁰

176 The fourth aggravating factor relied on by the prosecution was Andy Ong’s lack of remorse throughout these proceedings. This was on the basis that once he realised that his initial narrative of there being a genuine lease termination compensation payable had collapsed, he performed a “complete about-turn” and changed his story midway through trial, claiming that the transfers were for GCM’s management fees and for loan drawdowns, which accounts the prosecution had shown to be incredible. ¹⁶¹

177 The defence’s response was that the prosecution’s characterisation of Andy Ong’s evidence as a “complete about-turn” was “hyperbolic” and distracted from the fact that the circumstances involved a “complex corporate context involving multiple group entities and incomplete information” available to Andy Ong before the trial, such that it was reasonable for “different explanations to be explored at trial”, and this should not be equated with a lack of remorse. ¹⁶²

178 The prosecution acknowledged that the chief mitigating factor in Andy Ong’s favour was that full restitution had been made, as he had repaid the misappropriated sum of $15,800,000 to GREIH. However, as this was pursuant to the judgment issued against him in Suit 1098, the prosecution submitted that this “was not voluntary restitution indicating genuine remorse”. Its main mitigating value was thus that it served to reduce the economic harm suffered by the victim. ¹⁶³

179 My views on these sentencing factors were as follows.

180 First, the amount misappropriated was a relevant sentencing factor, as it was the starting consideration for sentencing – see Public Prosecutor v Lam Leng Hung [2017] 4 SLR 474 at [367]. As stated in Wong Kai Chuen Philip v PP [1990] 2 SLR(R) 361 at [18], all other things being equal, the larger the amount dishonestly misappropriated, the greater the culpability of the offender and the more severe the sentence of the court. At $15,800,000, the amount misappropriated was objectively high and was clearly an aggravating factor. I stress that this did not mean that this court placed weight on this without also considering other factors such as the accused’s actual culpability, the nature of the entrustment, the circumstances in which the transfers were made, and whether restitution was made. Nevertheless, this remained a relevant and important factor. Balanced against this was the fact that full restitution had been made. Insofar as it was not “voluntary” as it was pursuant to a judgment, I accepted the prosecution’s submission that the restitution did not reflect remorse on Andy Ong’s part. That said, it could not be denied that the restitution meant that no loss was thus suffered, and mitigating weight therefore had to be given to this.

182 Third, I agreed with the prosecution that many steps had been taken to create a paper trail to support the fiction that the transfers were justified because a lease termination compensation was owed to ERC Institute. While I agreed with parties that Version 5 should not be included in the reckoning for the sentence for this offence, I disagreed with the defence that it would be double-counting to have regard to the other documents that had been created to support the said fiction. It was obvious that the backdated documents such as the draft letters of demand/compensation requests, notice of termination and Colliers report were created or dated to lend weight and realism to the claim that Version 5 was genuine, that it had been terminated early, that compensation was due, that the amount of compensation was justifiable, and that the transfers were therefore legitimate. While they could be said to be part of the “factual substratum” supporting the supposed authenticity of Version 5, they were different documents from Version 5, and my view was that considering them in the broad scheme of Andy Ong’s actions in sentencing him for the CBT could not be said to be “double-counting”.

183 Fourth, on the matter of Andy Ong’s lack of remorse, I did not accept the defence’s characterisation of the variation in his defence as a legitimate “exploration” of “different explanations” for the transfers. In convicting Andy Ong, I had accepted the prosecution’s submission that the new narrative he gave in court – that the transfers were investment fees owed by GREIH to GCM and a loan from GREIH to ERC Unicampus – was incredible. That said, while this shift in his defence reduced his overall credibility, I would be slow to conclude that this translated to a lack of remorse that warranted an uplift in this sentence.

184 Moving on to the case precedents, each party contended that the opposing party’s precedents were distinguishable. I noted that none of the cases cited by either party was a close match to the facts of the present case in terms of the amount involved in the charge and the specific role played by the offender. Nevertheless, guidance could be had from these precedent cases to ensure that the sentence imposed in the present case was broadly consistent, after considering the differences in amounts involved, the roles of the offenders, the number of charges they faced, the length of time over which the misappropriation occurred, and whether there was a guilty plea.

185 The prosecution cited three case precedents: ¹⁶⁴

(a) The first was Public Prosecutor v Juandi bin Pungot [2022] 5 SLR 257 (“Juandi”). The offender was a shore loading officer with Shell Eastern Petroleum Pte Ltd, from which he dishonestly misappropriated gas oil. This scheme lasted from 2007 to 2018. The other key points were as follows:

(i) He pleaded guilty in the High Court to 36 charges, of which 20 were for abetment by conspiracy to commit CBT as a servant. Forty-nine other charges were taken into consideration for sentencing (“TIC”), of which 20 were similarly for CBT. The total value of the gas oil involved in the proceeded charges for CBT was in excess of $93.8 million, while the value of gas oil involved in the TIC charges for CBT was in excess of $33.9 million. No restitution was made.

(ii) He was sentenced to a total of 25 years’ imprisonment for his CBT charges, with three sentences running consecutively (a seven-year term for a charge involving about $2.79 million, an eight-year term for a charge involving about $4.12 million, and a ten-year term for a charge involving about $8.83 million).

(iii) The Court noted that although he was not entrusted with any special level of responsibility that enabled the misappropriation, he was one of the masterminds in the offences which were premeditated and sophisticated, part of a criminal syndicate, involved a transnational element and concerned a strategic industry. ¹⁶⁵

(b) The second precedent was Public Prosecutor v Teo Cheng Kiat [2000] SGHC 129 (“Teo Cheng Kiat”). The offender was a cabin crew supervisor with Singapore Airlines Ltd (“SIA”), and he made allowance payments to SIA’s cabin crew. He dishonestly misappropriated numerous amounts from SIA by creating fictitious adjustments for extra payments of allowances and paying these amounts into bank accounts in his name or controlled by him. His offences spanned from 1987 to 2000. Other key facts were as follows:

(i) He pleaded guilty in the High Court to ten charges for CBT as a servant, with a further 16 charges TIC (of which 15 were for CBT as a servant). The total amount involved in the proceeded charges was approximately $31.02 million, with the amounts in the individual charges ranging from $988,000 to $6 million. The total amount involved in the TIC charges was approximately $3.94 million. About $15 million in cash was recovered, and seven properties plus luxury items which were expected to yield about $6 million.

(ii) He was sentenced to a total of 24 years’ imprisonment (six years’ imprisonment per proceeded charge, with four to run consecutively).

(iii) The Court noted the high degree of trust placed in the offender, his systematic, sophisticated and sustained siphoning of the funds, and that he was motivated by greed to maintain his extravagant lifestyle. ¹⁶⁶

(c) The third precedent was Public Prosecutor v Luciana Lim Ying Ying [2015] SGDC 257 (“Luciana Lim”). The offender was a relationship manager at a wine and spirits company, who created fake documents to cheat the company into delivering products to her, which she then sold to customers. Her dishonest conversion of wines and spirits took place from July 2012 to January 2013, but her total offending took place over 1½ years. Other key facts included the following:

(i) She pleaded guilty in a District Court to four charges, of which one was for CBT as a servant involving a sum of just over $6.37 million. Seven charges were TIC, of which one was for CBT as a servant involving about $650,000. About 1,100 bottles of wine were recovered.

(ii) She was sentenced to six years’ imprisonment for the CBT charge (after a one-third discount was given from the indicative starting point of nine years’ imprisonment), and to one year’s imprisonment for a cheating charge. Her total sentence was seven years’ imprisonment.

(iii) The court noted the large amount of money involved, and the systematic dishonesty repeated over the 1½ years, but found that there was no sophistication in the commission of the offence, and that the offender was not in any special position of trust. The most significant mitigating factor for the court was that the offender derived no pecuniary benefit and that her motive was not greed – she had been the guarantor of someone’s loans taken from unlicensed moneylenders and was seeking to repay them. ¹⁶⁷

186 The prosecution submitted that based on the amounts misappropriated and sentences imposed in these cases, Andy Ong would have received a sentence of about 11 to 15 years’ imprisonment had he been tried in the High Court. On account of the restitution that had been made, it was submitted that the upper limit of the sentence would have been reduced to 13 years’ imprisonment. As Andy Ong had been tried in the District Court, it was thus submitted that the maximum ten years’ imprisonment that could be imposed by this court was appropriate. ¹⁶⁸

187 The defence cited the case of Public Prosecutor v Li Yong De [2021] SGDC 115 (“Li Yong De”), in which the offender was the managing director of a pawnshop. He had created fake pawn tickets and at least 1,052 false entries to conceal his misappropriation of funds from the pawnshop’s bank account. The other key points were as follows:

(a) He pleaded guilty in a District Court to eight charges, of which one was an amalgamated charge for CBT as a servant, involving approximately $5.43 million and covering the period 2013 to 2018. There was also a charge for cheating the bank into disbursing over $1.07 million. A further 15 charges were TIC, of which one was for CBT as a servant. About $34,500 worth of items were seized which were the offender’s proceeds of criminal conduct, but he otherwise made no restitution.

(b) He was sentenced to eight years’ imprisonment for the CBT charge, and to six years’ imprisonment for the cheating charge. His total imprisonment term was 18 years.

(c) The court noted the offender’s blatant abuse of trust, the significant degree of criminality in his acts, the length of time over which his crimes took place, and the significant financial harm that he had caused. His offence against the bank as a financial institution was also regarded as an aggravating factor. The court also noted that the offender was motivated by greed, since he was a compulsive gambler and bought luxury items with the misappropriated funds.

188 The defence submitted that Li Yong De had numerous aggravating factors including a sustained course of offending over five years and exposure of the bank to “significant risk”, as he had cheated the bank in relation to the pawnshop’s credit facility. Yet, the court imposed “only” an eight-year term on that offender. It was also submitted that since Andy Ong was a “step removed in the chain of command from GREIH, being a signatory and representative of GCM”, and full restitution had been made, he deserved only a five-year imprisonment term. ¹⁶⁹

189 Based on these four precedents, the general sentencing reference points based on the amounts involved in the offences were:

(a) Eight years’ imprisonment for an amalgamated offence involving about $5.43 million spanning five years (in Li Yong De);

(b) A starting point of nine years’ imprisonment for an offence involving about $6.37 spanning six months (in Luciana Lim);

(c) Ten years’ imprisonment for a charge involving about $8.83 million (in Juandi); and

(d) A global term of 24 years’ imprisonment for offences involving about $35 million and which spanned more than ten years (in Teo Cheng Kiat).

190 The main difficulty I had with Juandi and Teo Cheng Kiat as directly relevant precedents was that the total amounts involved therein were far higher than in the present case. The facts were also more aggravated, particularly in terms of the length of time over which the misappropriations took place. That said, as pointed out by the prosecution, these offenders were not in senior management positions, unlike Andy Ong. ¹⁷⁰ As for Teo Cheng Kiat, I also noted that the sentences for each charge were not strictly calibrated to the amount in each charge; they were imposed taking a broad view and ordered to run consecutively to give an appropriate aggregate term. At best, it could be said that broadly, misappropriation of about $35 million yielded a global 24-year imprisonment term where the offending took place over many years and where limited restitution was made. On this basis, the starting point sentence for the present case should be no higher than 12 years’ imprisonment.

191 Concerning the defence’s submissions on the aggravating factors in Li Yong De, while I accepted that the period of offending was far longer than the present case, I noted that there was a separate charge for cheating the bank, so the matter of the financial risk posed to the bank would not necessarily have been factored into the sentence for the CBT offence. As for the submission that Andy Ong was a “step removed” from the chain of command in GREIH as he was a signatory for GCM but not GREIH, I agreed with the prosecution that this was essentially repeating the argument about the lack of a master-servant relationship between GREIH and Andy Ong. As I have already found that this was not an impediment to Andy Ong’s liability for the offence under s 408 of the PC, I rejected the contention that his not being a signatory for GREIH meant lower culpability for this offence. In any case, given Andy Ong’s indirect interest in GREIH (see [4(b)]) and the fact that it was managed by GCM which in turn was run by persons who took instructions from him, I was unable agree that he was in any genuine way removed from that chain of command.

192 The case of Luciana Lim had perhaps the least aggravating facts overall, in terms of the timespan of the offences combined with the amount involved and the offender’s position in the company. Yet, in that case, I noted that the court’s starting point sentence was nine years’ imprisonment, which was reduced to six years after considering the mitigating factors.

193 In the round, having considered the precedent cases and the parties’ respective positions, my view was that a starting point sentence of 10 to 11 years’ imprisonment was appropriate, given the amount involved in the present charge, Andy Ong’s high position of trust, and the steps taken to support the fiction of the transfers being legitimate. I then adjusted this downwards bearing in mind that this offence did not involve a very lengthy series of acts, that Andy Ong faced only one charge (which was not an amalgamated charge), and that full restitution had been made.

194 All things considered, I declined to impose the maximum sentence permissible by this court, since such a sentence should ordinarily be reserved for the worst kind of case in its class. I did not think that the present case could be described as such, despite the various aggravating factors I noted above. On DAC 926686/2018, I therefore sentenced Andy Ong to nine years’ imprisonment.

195 For Andy Ong’s charge under s 467 read with s 109 of the PC (DAC 928867/2018), the prescribed maximum punishment was 15 years’ imprisonment, with the offender also being liable to a fine. However, the sentence I could impose was subject to the District Court limits of 10 years’ imprisonment and a fine of $30,000.

196 For this offence, the parties did not dispute that this court should be guided by the case of Gan Chai Bee Anne v Public Prosecutor [2019] 4 SLR 838. It was held therein (at [42] and [43]) that the well-established general principle in sentencing for financial and property offences was that the greater the economic value involved in the offence, the heavier the sentence. The rationale for this was that economic value was a proxy for the degree of criminal benefit received by the offender and the degree of harm caused to the victim. That said, two qualifications to this principle were that where one of the offenders involved in the commission of the offences was not intended to benefit from what the victim had been caused to part with, the value of the victim’s economic loss would not be an accurate proxy for that offender’s culpability, and that economic value is an accurate proxy for only economic harm suffered by the victim.

197 The prosecution submitted that the rental value represented by the forged lease agreement, Version 5, was as high as $27,600,000, being the rent of $255,658 per month for a potential nine years. ¹⁷¹ The defence countered that this was overstating matters, and was an artificial measure of culpability. ¹⁷² My view was that in the present case, it was inappropriate to place much reliance on the potential value of Version 5 as measure of culpability, since it was not the prosecution’s case that Version 5 had been forged so that ERC Institute could benefit from a potential nine-year lease in terms of stability of business premises or so that GREIH could benefit from the rental income from a long-term anchor tenant. Instead, it was the prosecution’s case (which I accepted) that Version 5 was created to support the false narrative of there being lease termination compensation payable. Thus, my view was that if any figure was to be ascribed to the economic value involved in the offence, it should be $15,800,000, which was the amount misappropriated, or at most $16,000,000, which was the alleged compensation payable.

198 In this regard, the defence’s submission was that since full restitution has been made, any economic harm caused to GREIH had been substantially addressed. ¹⁷³ I agreed with this, but I also bore in mind that the transfers out of GREIH’s UOB account (ending 7153) allowed ERC International to complete its purchase of the House of Tan Yeok Nee and allowed ERCU to repay a loan that it owed to UOB. Since these were companies that Andy Ong had interests in, he clearly benefitted indirectly from the transfers, and the creation of Version 5 to support the legitimacy of the transfers clearly benefitted him indirectly as well. That said, I acknowledged that it was difficult to place a dollar value on that benefit.

199 Concerning the case precedents, each party once again contended that the opposing party’s precedents were distinguishable. As was the case with the precedents for the CBT offences, none of the cases cited by either party was a close match to the facts of the present case in terms of the nature of the document forged and the specific role played by the offender. I nevertheless remained of the view that reference could be had to some of the precedents involving offences under s 467 of the PC, to ensure that the sentence imposed in the present case was broadly consistent, after considering the differences between those cases and the present one.

200 The prosecution cited three case precedents: ¹⁷⁴

(a) The first was Public Prosecutor v Soh Yuan-Yi [2026] SGDC 133 (“Soh Yuan-Yi”). The offender was a relationship manager in a bank, who used 112 forged bank instruction letters to perform unauthorised transactions on 15 clients’ bank accounts over seven years. The other key points were as follows:

(i) She pleaded guilty in a District Court to 30 charges, of which 20 were under s 471 read with s 467 of the PC. A further 123 charges were TIC. The total amount involved in the 112 unauthorised transactions was over $14.16 million. There was about $1.65 million made in restitution, post-conviction.

(ii) The sentences ranged from two years and six months’ imprisonment for a charge involving $180,000, to seven years and six months’ imprisonment for a charge involving over $1.51 million. The offender was sentenced to a total of 11 years and 24 months’ imprisonment. The decision is pending appeal.

(iii) The court noted the offender’s “egregious abuse of trust”, that the transfers were made partly to cover up her previous wrongdoings, and that her use of her clients’ accounts and monies were “audacious”. ¹⁷⁵

(b) The second precedent was Public Prosecutor v Tan Keat Siang [2020] SGDC 220 (“Tan Keat Siang”). The offender was also a relationship manager in a bank, and got customers interested in time deposits with the bank. When they issued cheques for the investments, he altered the payees’ names and transferred the funds to his creditors or to himself. These acts lasted from 2014 to 2019. Further key points were as follows:

(i) He pleaded guilty in a District Court to 13 charges, of which seven were under s 467 of the PC. A further 22 charges under s 467 and s 420 of the PC were TIC. The total amount involved in all the charges was $2.09 million, while the amount involved in the seven proceeded charges under s 467 of the PC was $700,000. Restitution of $500,000 was made, although the funds used were from other victims.

(ii) The imprisonment terms imposed on the offender ranged from 16 months for a charge involving $50,000, to 26 months for a charge involving $100,000, and 36 months’ imprisonment for a charge involving $150,000. His global sentence was 84 months’ imprisonment.

(iii) The court noted the significant amount involved in total, the offender’s abuse of trust of the bank’s customers, his premeditation and the public interest element insofar as the offences “carried the potential of affecting the integrity of Singapore’s financial institutions”. ¹⁷⁶

(c) The third precedent was Public Prosecutor v Chia Teck Leng [2004] SGDC 68. The offender was the Finance Manager of Asia Pacific Breweries (Singapore) Pte Ltd (“APB”) and was responsible for its financial, accounting and book-keeping matters. He forged numerous documents including certified extracts of directors’ resolutions, purportedly authorising him to receive credit and loan facilities from four banks as well as to sign all transactions and operate the bank accounts on APB’s behalf. The offences occurred between 1999 and 2003. The other key points were as follows:

(i) He pleaded guilty to 14 charges, of which six were under s 467 of the PC. Another 32 charges were TIC. He had cheated the banks of some $117.1 million. About $34.8 million was recovered, while the rest had been squandered by the offender at casinos.

(ii) He was sentenced to six years’ imprisonment for each of his proceeded charges, with seven of these running consecutively. His total sentence was 42 years’ imprisonment.

(iii) The court noted that the offender was “no mere corporate sentry; he was the commander of the guards”. His acts were also described as “the work of a criminal genius” and his crimes as striking “at the heart of banking and commerce.” ¹⁷⁷

201 The prosecution submitted that the purported rental value of Version 5, at $27,600,000, was significantly higher than in Soh Yuan-Yi where the court imposed an imprisonment term of seven years and six months for an offence involving $1,500,000, and Tan Keat Seng where the court imposed a 36-month imprisonment term for an offence involving $150,000. The sentence of three to four years’ imprisonment sought was also lower than the six years in Chia Teck Leng. It was also pointed out that the forged directors’ resolutions did not have any value on their face, but were used to cheat the banks into disbursing loans to the offender. The offenders in the precedents had also pleaded guilty. ¹⁷⁸

202 The defence sought to distinguish the prosecution’s precedents, pointing out that apart from the multiple charges and victims therein, the forged documents were also the “operative instruments” by which the unauthorised transactions were carried out or the victims’ monies misdirected. Instead, it submitted that Public Prosecutor v Noriza binte Aziz [2015] SGDC 157 (“Noriza”) was a better precedent. ¹⁷⁹ In that case, the offender was the secretary of a law firm who forged cheques enabling her to misappropriate monies from the law firm’s bank account. She also falsified payment vouchers and invoices to make the misappropriations appear legitimate and cover her tracks. Her offences were committed over six and a half years. The other key points in Noriza were as follows:

(a) The offender pleaded guilty in the District Court to 39 charges, of which 30 were under s 467 of the PC for forging the cheques, and nine were under s 477A of the PC for falsification of accounts (through the falsified payment vouchers and invoices). A further 172 charges were TIC. The total amount involved in the offences was $489,200, and restitution of $379,800 had been made.

(b) She was sentenced to eight months’ imprisonment for the charges under s 467 of the PC, and to four months’ imprisonment for the charges under s 477A of the PC. Her total sentence was 40 months’ imprisonment.

(c) The court noted the “staggering” number of charges in all, the protracted period over which they occurred, and the sophisticated planning and premeditation that went into the offender’s crimes. She was also motivated by greed and had derived significant personal gains from her offences. ¹⁸⁰

203 The defence likened the nature of Version 5 to the falsified payment vouchers and invoices, and thus submitted that a sentence of four to six months’ imprisonment, close to what the offender in Noriza received for her offences under s 477A of the PC, would be more appropriate in the present case for the charge under s 467 of the PC.  

204 I accepted the defence’s submission that a distinction should be drawn between a forged document that was the operative instrument giving rise to the misappropriation, and a forged document that was merely meant to make the misappropriation appear legitimate and to cover the offender’s tracks. This was because a document in the former category would have played a key role in effecting or triggering the misappropriation, while a document in the latter category would only serve to “ratify” the misappropriation after the fact. Version 5 fell into the latter category. In general, I also accepted the proposition that, all other things being equal, where a forged document had a direct effect on a subsequent deception or misappropriation, then the punishment for creating that document should be higher than if the document only had an indirect effect or supporting role in that regard. However, the case of Noriza was only of limited assistance, since the offender therein was charged under a different offence for the falsified vouchers and fictitious invoices, which offence carried a lower maximum punishment than the one that Andy Ong faced. I therefore rejected it as a relevant precedent and accordingly rejected the defence’s submission that a sentence similar to what was imposed therein for the offences under s 477A of the PC was appropriate for Andy Ong.

205 As noted above at [197], my view was that if any figure was to be ascribed to the economic value involved in the offence, it should be $15,800,000 (or at most $16,000,000), rather than the $27,600,000 contended by the prosecution. Thus, in terms of the total amount involved in the offences, the only case that was comparable to the present one was Soh Yuan-Yi. However, the offender therein faced over 150 charges, and his offences spanned seven years. Thus, although he received seven years and six months’ imprisonment for an offence involving $1.51 million, my view was that the imprisonment term imposed on Andy Ong for the offence under s 467 of the PC needed to be well below that level. As for the case of Chia Teck Leng, it had limited utility given that the amounts involved therein far outstripped that in the present case.

206 Ultimately, I noted that in Tan Keat Siang, even with charges involving amounts of $150,000 and below, the court saw fit to impose sentences of up to 36 months’ (or three years’) imprisonment on the offender. I noted that the case was distinguishable from the present one insofar as it involved multiple offences committed over many years, multiple victims, documents which were the operative instruments causing the unauthorised payment of funds, and only partial restitution. Nevertheless, given that the forged document in the present case (Version 5) was created to support a misappropriation of a far higher amount ($15,800,000), my view was that this served to balance off those aggravating factors such that a sentence of two to three years’ imprisonment would be appropriate.

207 On balance, my view was that the appropriate sentence to impose on Andy Ong for his offence in DAC 926687/2018 was two years’ imprisonment, and I so sentenced him.

208 Finally, I considered the offences under s 193 of the PC (DAC 926688/2018 for Andy Ong, DAC 926488/2018 for Ho and DAC 926534/2018 for Chua), for which the accused persons were to be punished with up to seven years’ imprisonment, and were also liable to a fine.

209 It was not disputed that the High Court had affirmed that the “normal tariff” in sentencing for an offence under this section was six months’ imprisonment – see Tan Mui Teck v Public Prosecutor [2003] 3 SLR(R) 139 (“Tan Mui Teck”) at [24]. The prosecution nevertheless noted that the courts had frequently departed from this tariff in the precedent cases, while the defence sought to distinguish those cases, and urged this court to impose sentences close to the tariff.

210 In support of their position that the accused persons deserved a sentence of two to three years’ imprisonment which was well above the normal tariff, the prosecution made the following arguments ¹⁸¹ :

(a) That the amount at stake in Suit 1098 included the $15,800,000 which had been misappropriated, and if the offenders’ false evidence had prevailed, GREIH would have been wrongfully denied that said sum.

(b) That the imprisonment terms imposed on the three accused persons should be much higher than the six months imposed on Ong Han Boon for his guilty plea for a similar offence. This was because not only were they not entitled to any sentencing discount that Ong Han Boon would have received for his guilty plea, but they also had not shown any remorse due to the manner in which they conducted their defence. In this regard, the prosecution pointed out that the High Court, in Suit 1098, expressly found that Version 5 was a sham document, rejecting the accounts put forward by the accused persons. This finding was not disturbed on appeal. Yet, the accused persons persisted in relitigating that very same falsehood in the present trial. They thus effectively tried to hoodwink the justice system twice.

211 The defence countered that to regard this as evidencing a lack of remorse and treating it as an aggravating factor in sentencing was tantamount to penalising the accused persons for claiming trial. In summary:

(a) It was submitted for Andy Ong that any uplift in sentencing should be reserved for offenders who pursued collateral false allegations or irrelevant issues – which was not done in the present case. ¹⁸²

(b) For Ho, following points were also made: ¹⁸³

(i) He had not been responsible for forging Version 5, and was not even aware that it was forged.

(ii) The $15,800,000 was placed at risk by Andy Ong’s narrative, rather than by Ho’s statement.

(iii) His culpability was lower than Ong Han Boon’s, since Ong Han Boon instructed Chua to prepare the lease agreement, while Ho only signed it.

(c) As for Chua, it was submitted that unlike Andy Ong or Ho, he was not a defendant in Suit 1098, and had no financial interest in the outcome of the civil proceedings. He also had no role in deciding whether and how the $15.8 million was to be paid out of GREIH’s UOB account. He was merely a salaried employee with no vested interest in the lease agreement other than in the course of his work. Chua also faced only a single charge, whereas Andy Ong was convicted for three in the present trial, while Ong Han Boon had pleaded guilty to 17 charges, with 37 taken into consideration for sentencing. Chua’s culpability should thus be regarded as substantially lower than Ong Han Boon’s, not least because it was also Ong Han Boon who instructed Chua to prepare the lease agreement. ¹⁸⁴

212 Before analysing the parties’ positions, I considered the case precedents cited by them. I also noted that the offence under s 193 of the PC could be either for giving false evidence in a judicial proceeding, or for fabricating false evidence for use in a judicial proceeding, though the High Court did not seem to distinguish between these two limbs in terms of sentencing.

213 The prosecution cited four precedents:

(a) The first was Tan Mui Teck. The offender was the managing director of a company that had launched a civil suit against its former employees, who counterclaimed against the company. In response, the offender adduced consultancy agreements and payment vouchers that the former employees purportedly signed. He was changed for giving false evidence that the former employees had signed and entered into the consultancy agreements and initialled the vouchers. (The civil suit was settled before the criminal trial.) He was convicted by a District Court after trial on six charges and was sentenced to eight months’ imprisonment per charge, with three to run consecutively. This was reduced on appeal to six months’ imprisonment per charge, making a total imprisonment term of 18 months. In response to this precedent:

(i) Ho submitted that this offender’s conduct was more serious than that in the present case, but yet the High Court did not see fit to depart from the “normal tariff” of six months imprisonment. ¹⁸⁵

(ii) Chua submitted that his situation was similar to this offender’s, insofar as he gave false evidence that he witnessed the signing of agreements. However, Chua did not have a direct personal or corporate stake in the outcome, and was not the mastermind. ¹⁸⁶

(b) The second precedent cited by the prosecution was Choo Pheng Soon v Public Prosecutor [2001] 1 SLR(R) 115 (“Choo Pheng Soon”). The offender, in defending a $22,000 claim by one Susanna Lim, had affirmed an affidavit that he entered into an agreement with Lim that he would repay her in weekly instalments, and that three instalments (amounting to $18,000) had been repaid. To this end, he exhibited a forged copy of the agreement and acknowledgements of receipt in his affidavit. (A consent judgment for $18,000 was eventually entered in the civil suit.) This offender was charged for fabricating false evidence. He was convicted after trial in the District Court and sentenced to two years’ imprisonment. In enhancing this sentence to three and a half years’ imprisonment upon appeal, the High Court noted (at [41] and [42]) there had been careful planning, deliberate effort and skilled craftsmanship in the offender’s acts, that he had cast aspersions on Lim, the police and his lawyer, and also remained unrepentant as he led the court on a wild goose chase as time had to be spent deliberating on (among other things) whether Lim was illegal moneylender. In response to this precedent:

(i) Andy Ong submitted that this case had cumulative aggravating factors which were absent in the present case, and that unlike this offender, he had not advanced collateral or irrelevant allegations. ¹⁸⁷

(ii) Ho submitted that unlike this offender, he had not deliberately fabricated any false evidence, as he had not created, forged or fabricated the lease agreement. ¹⁸⁸

(iii) Chua submitted that the aggravating factors in Choo Pheng Soon were absent from the present case and there was thus no reason to impose a comparable sentence. ¹⁸⁹

(c) The prosecution’s third precedent was Rahman Pachan Pillai Prasana v Public Prosecutor [2003] SGHC 52 (“Prasana Rahman”). The offender was the secretary to one Mukunnan, then the Honorary Consul of the Republic of Malta to Singapore. Mukunnan had borrowed money from one Fernando for an investment. A “letter of surety” with the Malta Consulate as the guarantor for a loan of $354,000 was issued to Fernando. The investment turned out to be a scam. When Fernando sued to recover the loan, Mukunnan’s defence was that the money from Fernando was an investment and not a loan, and thus nothing was owed. The offender falsely swore an affidavit that Fernando had signed a letter stating that he would not use the letter of surety against the Consulate and that she saw him signing it. (The civil suit was eventually settled by a consent judgment.) The offender was charged for fabricating false evidence and was convicted after trial by a District Court. She was sentenced to two years’ imprisonment. In upholding her conviction and sentence on appeal, the High Court noted (at [24]) that the offender had set out to deceive the Court with her fabricated evidence, and had spun a “web of deceit” in the trial court instead of expressing remorse, “hence wasting precious court time”. In response to this precedent:

(i) Andy Ong submitted that the offending was aggravated, and that there was a material difference between swearing to a specific eyewitness account and giving evidence as to when a commercial agreement was executed. ¹⁹⁰ The prosecution countered that there was no material difference in the manner of offending, as Andy Ong was essentially falsely attesting that a document existed at the material time. ¹⁹¹ I agreed with the prosecution on this point.

(ii) Ho submitted that unlike the offender who fabricated evidence, he did not forge Version 5, nor was he aware that it was forged. In this regard, it was pointed out that this court had found it extremely unlikely that he even knew which version of the document he was signing. ¹⁹² I paused to note that while this was my finding (see [137] above), it was in the context of Ho not being able to realistically or honestly peg the signing event to a specific conversation he had with Andy Ong, and that his assertions in his affidavit were therefore false. In any case, since Ho was charged herein for giving false evidence rather than fabricating the false evidence, the fact that he did not fabricate Version 5 was of lower relevance in his sentencing.

(iii) As for Chua, he submitted that the trial court had found (in [2003] SGDC 5 at [38]) that there had been “careful planning, deliberate effort and skilled craftsmanship” in the offender’s fabrication of evidence, whereas Chua’s criminal liability was limited to “mistaken belief”. ¹⁹³ On this point, as with Ho, I noted that Chua was charged for giving false evidence, so the fact that there might not have been “careful planning” or “skilled craftsmanship” in Chua’s preparation of the documents was of lower relevance in his sentencing than if he had been charged for fabricating the false evidence.

(d) The prosecution’s fourth precedent was Tan Hui Meng v Public Prosecutor [2025] SGHC 2 (“Tan Hui Meng”), in which the offender claimed trial in a District Court to charges for making false declarations and providing false evidence in judicial proceedings. He had commenced a Suit against one Guan Aimei for $2.3 million, being proceeds of conveyance of the property at 10J East Coast Road, contending that Guan held the proceeds on trust for him. In doing so, he relied on a document (an assertion of trust) that he knew to be false. (As noted by the trial court in [2024] SGDC 146 at [191], the Suit was dismissed by Judicial Commissioner Edmund Leow, who also directed that the matter be referred to the authorities.) The offender was sentenced to two years’ imprisonment by the trial court, but this was enhanced to four years on appeal. The High Court noted (at [67], [71] and [73]) that in this case, the true victim was the course of justice itself, that the offender had actively commenced the Suit in pursuit of an entirely fabricated claim, and not only testified to a “fictious” account of events, but also adduced fabricated documents in support thereof. Further, although the false documents had not been created for the Suit, the offender’s reliance on the false documents still formed part of his wrongful conduct. All three accused persons submitted that the present case was distinguishable from this precedent since none of them used the false evidence to initiate a lawsuit. Instead, Andy Ong and Ho were merely defendants, while Chua was only a witness, in Suit 1098.

214 Andy Ong cited three cases ¹⁹⁴ to support his submission that he should receive a sentence of only six to nine months’ imprisonment:

(a) The first was Public Prosecutor v Phang Chwee Seng Anthony [2007] SGDC 284 in which the offender pleaded guilty to lying in court to give his friend an alibi for a trial for theft-in-dwelling, and was sentenced to eight months’ imprisonment. In response, the prosecution noted that the subject-matter of the theft was just a handbag. ¹⁹⁵ I agreed that the scope and extent of the falsehood in this precedent was of a completely different order from the present case.

(b) The second precedent cited was Public Prosecutor v Ong Geok Chye [2006] SGDC 120, in which the offender pleaded guilty to falsely declaring utility bills in an affidavit for the ancillary matters in his divorce proceedings. He had done so to show that the matrimonial flat had not been rented out, although it had. This was to gain an advantage in the division of the matrimonial assets. He was sentenced to nine months’ imprisonment. In response, the prosecution pointed out that the false evidence concerned monthly rent of $1,400 over three years, that is, about $50,400. ¹⁹⁶ I noted that the falsehood in this precedent concerned far lower monetary stakes than in the present case, and the offender had pleaded guilty – even so, the court departed from the “normal tariff” and sentenced him to nine months’ imprisonment.

(c) The third precedent cited was Public Prosecutor v Vickreman Harvey Chettiar [2025] SGDC 81, in which the offender pleaded guilty (among other charges) to providing a false report to his lawyer for use in an application to resist bail. He was sentenced to ten weeks’ imprisonment for that offence. The prosecution submitted that the false information was not given under oath, and the matter was less aggravated since a bail review is an interlocutory mention. ¹⁹⁷ I agreed that this precedent was distinguishable insofar as the falsehood was not a statement given under oath. However, I did not agree that the fact that the false information was to be given at a bail review or an interlocutory mention was necessarily less aggravating, since that was still a judicial proceeding.

215 I noted that each of the accused persons faced only one charge under s 193 of the PC. While they did not use the falsehood to commence and pursue a lawsuit, Andy Ong and Ho did use the falsehood in their defence in Suit 1098. The false narrative of there being a lease agreement that was prematurely terminated and that compensation thus needed to be paid had also been created by Andy Ong, and it resulted in Suit 1098 having to be commenced to, among other things, recover the monies wrongly paid. In this regard, I found that Andy Ong, like the offender in Prasana Rahman, had not only sought to deceive the High Court in Suit 1098, but continued spinning that “web of deceit” in the trial before me. Like the offender in Tan Hui Meng, all three accused persons also put forward a fictitious account of events in the High Court in Suit 1098, and adduced fabricated documents in support thereof.

216 As noted above, I also found that Ho’s and Chua’s false evidence was given to bolster the false narrative put up by Andy Ong. I thus rejected the contention that Ho’s false statement did not serve to place the $15,800,000 at risk. That said, I accepted that Ho’s and Chua’s overall culpabilities were lower than Andy Ong’s and Ong Han Boon’s, insofar as Ho merely signed the lease agreements, while Chua created the various versions of the lease agreement on instructions, rather than on his own initiative or to further his personal interest. My view therefore was that the sentences to be imposed on Ho and Chua should be lower than that to be imposed on Andy Ong. Nevertheless, I did not regard Chua’s overall culpability level as significantly different from Ho’s, because although he did not make his false evidence in Suit 1098 as a defendant, he had been involved in preparing the lease agreements and the late stamping, and knew of the backdated letter of termination. As noted at [166] above, my finding was that he must have known that there was no signed lease agreement in the form of Version 5 as at March 2012, and any assertion that he saw it, or believed that he saw it, must have been knowingly false.

217 I also accepted that the accused persons did not pursue collateral false allegations or have the court pursue irrelevant matters. In this regard, I noted that Andy Ong called only one other witness apart from himself, while Ho and Chua offered only themselves as witnesses in their defence.

218 I then considered whether it was an aggravating factor that the accused persons claimed trial before me and maintained that Version 5 was genuine although the High Court in Suit 1098 had made an express finding that Version 5 was a sham document, ¹⁹⁸ which finding was not disturbed by the Court of Appeal. I bore in mind that the High Court’s finding was on a balance of probabilities as it was a civil case, while the criminal court’s finding had to be beyond a reasonable doubt. Thus, it could be argued that the accused persons were entitled to test the evidence to see if it would meet the higher standard of proof. However, arguing for whether certain evidence or findings met a higher standard of proof was different from what the accused persons did in the present case: they re-asserted, as the truth, the same version of events ¹⁹⁹ that a previous court had already considered and rejected. Insofar as this showed their unwillingness to accept the previous findings, it did show an unwillingness to accept responsibility for their actions, and this was therefore a relevant factor in sentencing. This point was also a key distinguishing factor in the accused persons’ cases from that of Ong Han Boon, who pleaded guilty. Thus, in terms of parity of sentencing, my view was that their sentences should be higher than his.

219 Ultimately, having considered the case precedents, I accepted that the culpabilities of Andy Ong, Ho and Chua were lower than that in the cases such as Choo Pheng Soon, Prasana Rahman and Tan Hui Meng, insofar as the false document (Version 5) that was at the centre of the false evidence given in Suit 1098 had pre-dated the suit, and was not created for that judicial proceeding. I therefore rejected the prosecution’s submission that the sentences for the charges under s 193 of the PC should be in the range of two to three years’ imprisonment. However, I also rejected the defence’s contention that the sentences for any of the accused persons should fall so low as to be at or close to the “normal tariff” of six months’ imprisonment. For Andy Ong, this was because he had created the false narrative concerning Version 5 and the alleged compensation owed, which resulted in Suit 1098 having to be brought. It was also not a simple factual falsehood such as giving a friend an alibi, but an entire web of falsehoods. For Ho and Chua, as noted above, their false evidence concerned when Version 5 had been created and signed, and included specific reference events to lend their accounts more credibility – these were clearly carefully crafted to support Andy Ong’s false narrative and bolster the defence to Suit 1098. I noted that in Tan Mui Teck, the High Court had reduced the sentences imposed on the offender to six months’ imprisonment on each of the three charges for giving false evidence, although there were aggravating factors insofar as that offender had created false evidence to defend a counterclaim. Nevertheless, the falsehoods were made in a single judicial proceeding, and the total sentence was 18 months’ imprisonment. Considering the outcome of Tan Mui Teck in its totality and the factors set out above, my view was that a starting point sentence of 18 months’ imprisonment sentence for the present case was appropriate.

220 As noted above, my view was that Andy Ong’s sentence should be higher than that of Ho’s and Chua’s, and that the sentences of all three accused persons should be higher than that of Ong Han Boon’s. Having considered all the above factors, my view was that the appropriate sentence for Andy Ong on DAC 926688/2018 was 18 months’ imprisonment, while the appropriate sentences for Ho Yew Kong on DAC 926588/2018 and Chua Wei Tat on DAC 926534/2018 were 12 months’ imprisonment each. They were so sentenced.

221 In respect of Andy Ong, I ordered the imprisonment terms for DAC 926686/2018 and DAC 926688/2018 to run consecutively, with the remaining term to run concurrently. This meant that his total sentence was nine years and 18 months’ imprisonment, or effectively, ten years and six months’ imprisonment.

222 In summary, the imprisonment terms I imposed on the accused persons were as follows:

223 All three accused persons were granted a stay of execution of their respective imprisonment terms, and are on bail pending their appeals.

224 In closing, I express my gratitude to the prosecutors and counsel for their professionalism and patience in what was a long and evidentially complex trial.