(c) Was the fuel stolen property?
16 The District Judge held that “in the definition of stolen property in section 410 of the Penal Code, the emphasis is on possession of property” (Chua at [21]). Section 410, which defines stolen property, reads:
(1) Property the possession whereof has been transferred by theft, or by extortion, or by robbery, and property which has been criminally misappropriated, or in respect of which criminal breach of trust or cheating has been committed, is designated as “stolen property”, whether the transfer has been made or the misappropriation or breach of trust or cheating has been committed within or without Singapore. But if such property subsequently comes into the possession of a person legally entitled to the possession thereof, it then ceases to be stolen property.
(2) The expression “stolen property” includes any property into or for which stolen property has been converted or exchanged and anything acquired by such conversion or exchange, whether immediately or otherwise.
The District Judge found that Chevron was in possession of the excess fuel at the Terminal, and that Shanker controlled the movement of the fuel. The District Judge also noted that Shanker “had pleaded guilty to criminal breach of trust charges and the charge which involves the MV Milos was taken into consideration for the purpose of sentencing” (Chua at [21]).
17 The appellant argued that the District Judge erred in law in his interpretation of s 410. He argued the District Judge “failed to take into account [his] contention that the definition of stolen property in s 410 has to be interpreted in its plain sense… consistent with the approach taken by the court in Lim Hong Siang v Public Prosecutor [2009] 3 MLJ 280”. Lim Hong Siang was a Malaysian High Court decision. The appellant in that case had pleaded guilty to a charge of retaining stolen property, namely, five units of handphones which allegedly belonged to an individual named Fong Chew Phein. According to the statement of facts, an armed robbery occurred at a shop. The owner of the shop, Poh Ken Hua, informed the complainant (a police officer on duty) of this. There was no mention in the statement of facts of Poh Ken Hua reporting 5 missing handphones from his shop. As such, it was not clear where the 5 handphones came from. After having been convicted and sentenced, the appellant appealed to the High Court (against sentence). The High Court set aside the plea of guilt. Its reason was that “[n]o evidence was led during the proceedings to show that the [handphones] belonged to Poh Ken Hua” (at [12]). Neither was there any mention of how Fong Chew Phein, the alleged “owner” of the handphones according to the charge, was related to the case. As such, it was apparent that Lim Hong Siang dealt with a different situation. The court in that case held that the prosecution needed to prove that the property (the 5 handphones) was stolen property (Lim Hong Siang at [11]). The case did not stand for the proposition that ownership was a prerequisite to the definition of stolen property in s 410, as the appellant seemed to have alluded to.
18 The prosecution’s position was that it was under no obligation to prove the ownership of the fuel in question. It argued that, in this case, the fuel was stolen property as it had been transferred to the appellant by Shanker’s act of criminal breach of trust, which Shanker had pleaded guilty to. As proof of ownership of the property was not an element of the offence of criminal breach of trust, it was immaterial in this case as well. The appellant faulted the prosecution’s (and the District Judge’s) reliance on Shanker’s conviction, as the conviction did not prove that fuel belonged to (presumably in the sense of being owned by) Chevron. In my view, the District Judge correctly applied the law.
(d) Was the appellant dishonest, and did he have reason to believe that the fuel was stolen property?
19 The District Judge cited Ow Yew Beng v PP [2003] 1 SLR(R) 536 (“Ow”) for the proposition that “the two mental elements of dishonesty and knowing or having reason to believe that the property was stolen [can] go together”. Dishonesty refers to acting with the intention of causing gain or loss which the accused has reason to believe was wrongful (Ow at [11]). “Dishonesty” and “reason to believe” can go together because “[a] person who retains property knowing it to be stolen, would naturally possess an intention to cause gain or loss which he knows or has reason to believe is wrongful though there may be situations when these mental elements are not co-extensive” (Chua at [40], citing Ow at [12]).
20 The District Judge found that the appellant had reason to believe the fuel was stolen. He relied on the appellant’s statement, in which the appellant stated that he understood that the fuel was “cheap black market marine fuel” given its relatively low price (Chua at [40] and [42]). The appellant argued that the District Judge had erred in law in conflating the two elements of dishonesty and having reason to believe that the fuel was stolen property. He argued that the District Judge should have applied a subjective test to ascertain if the appellant had, at the material time, intended to cause wrongful gain or loss. I find that the District Judge was correct in his analysis to look at the two mental elements together in this case. The appellant received the fuel, knowing it to be stolen, and hence naturally possessed an intention to cause gain to his business partners (or “Greek bosses”, according to his statement) or loss to the rightful owner of the fuel. In fact, the appellant mentioned in his statement, “I promise not to buy such dishonest stock again”.
21 The appellant also argued that the District Judge was wrong to find that he had reason to believe that the fuel was stolen. The District Judge came to that finding based on the lack of documentation for the purchase, the appellant’s statement, and the low price of the fuel. Before me, the appellant first attempted to justify the lack of documentation by arguing that he was only a conduit, and that “it was not for him to follow up in terms of documentation”. Second, he argued that the District Judge should have placed little weight on his statement, and that he did not state that the fuel was “off-spec” because Bay wanted to “truncate the recording” of the statement. Third, he argued that it was not established that the price of the fuel was (relatively) “low”, as the grade of the fuel was not proven to have been 380CST.
22 I dismiss the last contention as I found that the District Judge was correct in determining the grade of the fuel (see above at [15]). I also dismiss the second contention that the District Judge should not have relied on his statement (see below at [25]–[27]). Even if the fuel were “off-spec”, this did not negate the appellant’s “reason to believe” that it was stolen. His remark in his statement that the fuel was “way cheaper” was not adequately explained. At no point did the appellant raise a plausible theory to explain those portions of his statement. As the prosecution had pointed out, “the fact that the fuel is off-spec may or may not result in a discount in price” (see also above at [8]). The appellant seemed to have conflated the two issues of “what the grade of the fuel was” and “what the appellant believed the grade of the fuel was”. The latter – his belief that the fuel was 380CST (and priced significantly below the market price) – was sufficient to establish the mental element of “reason to believe” in s 411. This was apparent from the evidence. With regard to the appellant’s first contention, even if it were not the appellant’s duty to document the transaction, he must have known that the fuel was stolen property based on the following