Cases

Companies and Corporations | Criminal Law | Evidence | Words and Phrases

Show Theatres Pte Ltd (in liquidation) v Shaw Theatres Pte Ltd & Anor  [2002] 4 SLR 145
Court of Appeal — Civil Appeal No 37 of 2002
Yong Pung How CJ, Chao Hick Tin JA and Judith Prakash J
13 September, 5 October 2002

Winding up — Unfair preference — Repayments made by company in liquidation to another company — Whether payments were made to ‘person connected’ with company in liquidation and hence constituted unfair preference — Interpretation of ‘associate’ — Bankruptcy Act (Cap 20, 2000 Ed) ss 99, 100 & 101 — Companies (Application of Bankruptcy Act Provisions) Regulations (Cap 50, Rg 3, 1996 Ed) regs 2, 3, 4 & 5

Lee Eng Beng and Lynette Lee (Rajah & Tann) for the appellants.
Tan Kok Quan SC, Tang Khin Wai and Dawn Chew (Tan Kok Quan Partnership) for the respondents.

Show Theatres were incorporated by the two respondents, Shaw Theatres Pte Ltd (‘Shaw Pte’) and Eng Wah Pte Ltd (‘Eng Wah Pte’) in 1993, with the former holding 75% of its shares and the latter, 25%. Shaw Pte was represented on the board of directors by Mr Shaw Vee Chung Harold and Mr Shaw Vee King (‘the two Shaws’) and Eng Wah Pte by Mr Goh Keng Beng. The two Shaws and Goh Keng Beng were also directors of Shaw Pte and Eng Wah Pte respectively. Sometime in 1997, Shaw Pte and Eng Wah Pte loaned $375,000 and $125,000 respectively to Show Theatres. Some two years later, on 6 August 1999, these two sums were repaid by Show Theatres to the respondents. It was not disputed that at the time of the repayments, Show Theatres were insolvent. The repayments were made more than six months, but less than two years before the presentation of the winding-up petition on 24 October 2000. The liquidator of Show Theatres, after reviewing the records and accounts of the company, thought that the two repayments constituted unfair preference and thus applied to court to have the two sums restored to the company.

The court below held that the repayments made by Show Theatres to the two respondents were not payments made to ‘persons connected’ with Show Theatres and as those payments were made more than six months before Show Theatres were placed under liquidation, the payments did not constitute unfair preference.

The only issue in this appeal was whether Shaw Pte and Eng Wah Pte were ‘persons connected with’ Show Theatres such that the ‘relevant time’ as defined in s 100 of the Bankruptcy Act (Cap 20, 2000 Ed) would be two years and the repayments would be presumed to constitute unfair preference. The answer to this question in turn, depended on the meaning to be given to the term ‘associate’ in the definition of a ‘person connected with a company’ laid down in the Companies (Application of Bankruptcy Act Provisions) Regulations (Cap 50, Rg 3, 1996 Ed) (‘CABAR’).

The problem in this case was essentially one of construction. A ‘person connected with a company’ is defined in reg 2 of CABAR, for the purposes of this appeal, as ‘an associate of a director of the company’ or ‘an associate of the company’. An ‘associate’ is, in turn, defined in reg 2 to mean ‘an associate of a person or company as determined in accordance with section 101 of the Bankruptcy Act, as modified by regulation 5’. In addition, reg 4 provides that any reference to an associate of a person or an individual who has been adjudged a bankrupt in, inter alia, ss 99 and 100 (with the exception of s 101) of the Bankruptcy Act ‘shall be read as a reference to a person connected with a company ... against which a winding-up order has been made’.

Held, allowing the appeal:

By virtue of s 101(4) of the Bankruptcy Act, as far as the three directors of Show Theatres were concerned, they would, as they were directors of Shaw Pte and Eng Wah Pte, be treated as employed by the latter two companies. Thus, the two Shaws were associates of Shaw Pte and vice versa. The same would be the position as between Eng Wah Pte and Goh Keng Beng. Following from that, taking the case of Eng Wah Pte, the latter would be an associate of Goh Keng Beng, who was a director of Show Theatres. Accordingly, Eng Wah Pte was a person connected with Show Theatres. The same was the position between Shaw Pte and Show Theatres. The effect of this construction is that where two companies have a common director or common directors, one company will be treated as connected with the other.

The expression ‘an individual’ in s 101(4) should not be read to refer only to the company under liquidation. This would not be consistent with the second limb of s 101(4) where it is provided that ‘any director ... of a company shall be treated as employed by that company’ and ‘that company’ must be referring to ‘a company’. It is clear that the provisions of s 101(4) are of general application, otherwise they would not have used the article ‘a’. It must be borne in mind that under the Interpretation Act (Cap 1, 1999 Ed), a ‘person’ is defined to include ‘any company or association or body of persons ...’. In other words, s 101(4) should apply to any situation which calls for a determination of the relationship between two entities. It should not be confined to apply only to the situation of a person being an associate of the company under liquidation. On this construction, Shaw Pte would be an associate of the two Shaws and as the two Shaws were also directors of Show Theatres, Shaw Pte would be a person connected with Show Theatres. This is similarly so for Eng Wah Pte.

There is really no overriding policy or commercial consideration which militates against this construction. Indeed, in the interest of maintaining good business practices and to protect all persons who, in good faith, have dealings with the company, there should be closer scrutiny and stricter rules governing transactions between related companies.

The word ‘individual’ in s 101(6) of the Bankruptcy Act should, likewise, not be read, in the context of the present case, to mean ‘the company in liquidation’ only. Following from this interpretation, Shaw Pte and Eng Wah Pte were therefore, ‘associates’ of Show Theatres, as the former collectively exercised complete control over Show Theatres. Accordingly, this would be a further basis to hold that Shaw Pte and Eng Wah Pte were companies ‘connected with’ Show Theatres.

Thongthot Yordsa-Art & Anor v Public Prosecutor  [2002] 4 SLR 161
Court of Appeal — Criminal Appeal No 3 of 2002
Yong Pung How CJ, Chao Hick Tin JA and Tan Lee Meng J
20 May, 10 July 2002

Unlawful assembly — Common object — Whether common object of assembly was to cause grievous hurt to deceased — Whether appellants knew that it was likely that deceased would be killed in prosecution of common object — Penal Code (Cap 224) ss 141 & 149

Unlawful assembly — Common object — ‘Common object’ distinct from ‘common intention’ — Penal Code (Cap 224) ss 34 & 149

Goh Aik Leng (Goh Aik Leng & Partners) and Rajendran Kumaresan (WT Woon & Co) (both assigned) for the first appellant.
Ram Goswami (Ram Goswami) and Boon Khoon Lim (Dora Boon & Co) (both assigned) for the second appellant.
Bala Reddy and Sia Aik Kor (Deputy Public Prosecutors) for the respondent.

The deceased, Saephan Thawan (‘Yaou’), was in control of gambling, prostitution and the sale of drugs in the area not far from Kian Teck Road where a small community of Thai nationals had set up a small settlement. Ten days before he was killed, he had threatened to have the girlfriend of the first appellant raped and silenced if he caught her soliciting his area. Yaou’s comments angered the first appellant who, a few days later, gathered six other men and went in search of Yaou but did not manage to find him. On 2 June 2001, the first appellant, assembled another group of five men to confront Yaou. The group of six included the second appellant and was armed with a deadly arsenal of weapons. During the confrontation at Kian Teck, Yaou tried to flee from the group but was soon cornered and killed by them.

The appellants were jointly tried and convicted on the charge for being members of an unlawful assembly whose common object was to cause grievous hurt to Yaou, and while they were members of such an assembly, one or more of the members of the assembly killed Yaou, whose death the appellants knew to be likely to be committed in the prosecution of the common object of the assembly. By virtue of s 149 of the Penal Code (Cap 224), the appellants had committed an offence punishable under s 302 of the Penal Code and were sentenced to suffer death. The appellants appealed on the main ground that the trial judge erred in finding that the common object of the group was to cause grievous hurt to Yaou when in fact the members of the group only intended to extract an apology from Yaou. The second appellant further contended that the trial judge had erred in relying on the portions of his police statements which he had retracted and the confessions of his co-accused. He claimed that the retracted portions of the statements in question did not reflect what he actually said and that he did not pay attention when his statements were read to him by the Thai interpreter.

Held, dismissing the appeals:

The meaning of ‘common object’ in s 149 of the Penal Code must not be confused with ‘common intention’ under s 34 of the Code. Section 149 does not require proof of a pre-arranged plan and a common intention which a prosecution involving s 34 of the Code requires. A distinction should be drawn between common object and the intention of the individual members who comprise the unlawful assembly, in that although their object is common, the intentions of the several members may differ and indeed be similar only in respect that they are all unlawful; Chandran v PP [1992] 2 SLR 265 followed.

To this end, there is no dispute that both appellants together with the other members of the gang were, by virtue of s 141 of the Penal Code, members of an unlawful assembly as there was ample evidence at trial that their common object was to cause grievous hurt to Yaou.

It was also evident from the circumstances of the case, their deadly arsenal of weapons, the ferocity of the attack on Yaou as well as the appellants’ admission to taking part in killing Yaou that the appellants knew that it was likely that Yaou would be killed when they acted in pursuit of their common object to cause him grievous hurt. In this connection, the appellants’ claim that the weapons were only intended for self-defence lacked credibility. This is especially in light of the first appellant’s testimony that Yaou was unarmed, outnumbered and was running away when he was savagely attacked.

It is trite law that the retraction by an accused of his confession of guilt does not prevent the confession from being relied on if the judge believes that it is the truth. Both the police officer, who recorded the statements, and the Thai interpreter testified that the recorded statements were made by the second appellant and that he was invited to amend any part of the statements before acknowledging that they were correct. It is also most unlikely that the second appellant, knowing full well that he was facing a capital charge, did not pay attention when his statements were read to him.

A conviction of an accused can be sustained solely on the basis of a confession by his co-accused if the confession establishes beyond reasonable doubt that the accused is guilty. In the present case, there was no incentive for the first appellant to lie about the second appellant’s role in the killing of Yaou as the first appellant had already admitted to being part of the gang that took Yaou’s life. Furthermore, the first appellant’s account of the events at Kian Teck is consistent with the second appellant’s own admission in his statements as well as the eye-witness account of Yaou’s girlfriend; Chin Seow Noi v PP [1994] 1 SLR 135 followed.

Thongthot Yordsa-Art & Anor v Public Prosecutor [2002] 4 SLR 161
Court of Appeal — Criminal Appeal No 3 of 2002
Yong Pung How CJ, Chao Hick Tin JA and Tan Lee Meng J
20 May, 10 July 2002

Confession — Retraction — Whether retracted confession can be relied upon to convict accused

Confession — Confession of co-accused — Whether such confession alone may be sufficient evidence against accused warranting conviction of accused

See CRIMINAL LAW.

Show Theatres Pte Ltd (in liquidation) v Shaw Theatres Pte Ltd & Anor [2002] 4 SLR 145
Court of Appeal — Civil Appeal No 37 of 2002
Yong Pung How CJ, Chao Hick Tin JA and Judith Prakash J
13 September, 5 October 2002

‘Associate’ — Bankruptcy Act (Cap 20, 2000 Ed) s 101(4) — Companies (Application of Bankruptcy Act Provisions) Regulations (Cap 50, Rg 3, 1996 Ed) reg 2

‘Individual’ — Bankruptcy Act (Cap 20, 2000 Ed) s 101(4) & (6)

‘Person connected with a company’ — Companies (Application of Bankruptcy Act Provisions) Regulations (Cap 50, Rg 3, 1996 Ed) reg 2

See COMPANIES AND CORPORATIONS.

Thongthot Yordsa-Art & Anor v Public Prosecutor [2002] 4 SLR 161
Court of Appeal — Criminal Appeal No 3 of 2002
Yong Pung How CJ, Chao Hick Tin JA and Tan Lee Meng J
20 May, 10 July 2002

‘Common object’ — Penal Code (Cap 224) s 149

See CRIMINAL LAW.