Case Details
- Citation: [2021] SGCA 88
- Title: Raj Kumar s/o Brisa Besnath v Public Prosecutor
- Court: Court of Appeal of the Republic of Singapore
- Decision Date: 14 September 2021
- Case Number: Criminal Motion No 14 of 2021
- Coram: Andrew Phang Boon Leong JCA; Judith Prakash JCA; Chao Hick Tin SJ
- Applicant: Raj Kumar s/o Brisa Besnath
- Respondent: Public Prosecutor
- Counsel for Applicant: Ponnampalam Sivakumar and Phang Shi Ting (BR Law Corporation)
- Counsel for Respondent: Alan Loh, Stacey Anne Fernandez and Ong Xin Jie (Attorney-General’s Chambers)
- Legal Area: Criminal Procedure and Sentencing — Criminal references
- Statute(s) Referenced: Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”); Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) — s 405 and s 406
- Key Provision(s) at Issue: s 397 CPC (criminal reference); s 405 Penal Code (criminal breach of trust — “entrusted with property” element); s 406 Penal Code (punishment)
- Prior Proceedings: Convicted in the District Court; appeal dismissed by the High Court Judge in Raj Kumar s/o Brisa Besnath v Public Prosecutor [2021] SGHC 57
- Sentence Imposed: 13 months’ imprisonment
- Judgment Length: 8 pages, 4,203 words
- Cases Cited (as provided): [1935] MLJ 273; [2021] SGCA 88; [2021] SGHC 57
Summary
In Raj Kumar s/o Brisa Besnath v Public Prosecutor [2021] SGCA 88, the Court of Appeal considered whether the applicant, having been convicted of criminal breach of trust, could obtain a criminal reference to the Court of Appeal under s 397 of the Criminal Procedure Code. The applicant sought to pose seven questions of law to the Court of Appeal, but the court emphasised that such references are constrained by strict cumulative requirements developed in Public Prosecutor v GCK and another matter [2020] 1 SLR 486 (“GCK”).
The court held that only one of the applicant’s questions was “well-settled” by existing authority and therefore failed to satisfy the requirement that the question be one of public interest. The remaining questions failed other cumulative requirements, including whether the question genuinely arose from the High Court’s reasoning and whether its determination would have affected the outcome. The criminal motion was therefore dismissed.
What Were the Facts of This Case?
The applicant, Raj Kumar s/o Brisa Besnath, was convicted after trial in the District Court on one charge of criminal breach of trust under s 406 of the Penal Code, read with s 405. The conviction arose from an arrangement involving an online persona known as “Maria Lloyd” (“Maria”). The factual background was largely uncontested by the time the matter reached the High Court and, later, the Court of Appeal.
In 2012, the applicant became acquainted with Maria through online communications. During their exchanges, the applicant agreed to receive a sum of S$89,000 in Singapore on Maria’s behalf. The plan was that the applicant would then take the money to Maria in Malaysia. Maria informed the applicant that someone would call him and pass him the money, and shortly thereafter, the applicant received a phone call from a person identified as “Melody Choong” (“Melody”). Melody told him she would pass him S$81,000.
On 9 March 2013, the applicant met Melody at NEX Shopping Mall. Melody handed him an envelope which she indicated contained cash. The applicant later claimed that he did not open the envelope to check its contents before leaving. After the handover, however, the applicant did not send or carry any money to Malaysia on Maria’s behalf. When Melody contacted him on 10 March 2013 to check on his progress, the applicant falsely told her that he had a “problem in check point” and that he was “coming on bail soon” after being bailed out by a friend.
At trial, the applicant initially insisted that he did not receive any money from Melody and that Melody had passed him only blank pieces of paper. That defence was rejected by the District Court. By the time of the High Court appeal, the applicant abandoned the “blank papers” position. For the purposes of the criminal motion to the Court of Appeal, the applicant’s position effectively shifted towards an admission that the envelope did contain S$81,000, while still disputing the legal characterisation of the “entrustment” element for criminal breach of trust.
What Were the Key Legal Issues?
The central issue before the Court of Appeal was not the correctness of the conviction on the merits, but whether the applicant could satisfy the threshold requirements for a criminal reference under s 397 of the CPC. The applicant attempted to frame seven questions of law relating to the “entrusted with property” element of criminal breach of trust under s 405 of the Penal Code.
Although the applicant’s questions were numerous, the Court of Appeal treated them as falling into a structured set of legal disputes. The first question concerned the nature of the “right” required of the person who entrusts the property. The second, third, and fourth questions concerned the nature of “possession” required of the entrusting person, including whether it must be actual possession, constructive possession, and what the elements of each would be. The fifth and sixth questions concerned whether entrustment could arise where the entrustment involved deception—either deception about the property being stolen or obtained through fraud/dishonesty, or deception about the existence of a relationship of trust. The seventh question concerned whether there is entrustment where the description of the property given by the entrustor differs from the property received.
Ultimately, the Court of Appeal assessed whether each proposed question met all four cumulative “GCK requirements”: (1) the reference must relate to a criminal matter decided by the High Court in appellate or revisionary jurisdiction; (2) it must be a question of law of public interest; (3) it must arise from the case before the High Court; and (4) the determination must have affected the outcome.
How Did the Court Analyse the Issues?
The Court of Appeal began by restating the framework governing criminal references under s 397 of the CPC. It noted that the prerequisites for granting leave were not in dispute, and then set out the four cumulative conditions from GCK. The court’s approach was pragmatic: it would take each of the seven questions as framed by the applicant and test whether each question satisfied all four requirements. The court also identified that, in substance, the motion turned on whether any of the questions truly met the strict threshold for a reference.
For Question 1, the court concluded that it was “well-settled” by existing authority. The High Court Judge’s answer to Question 1 was that the entrusting party needed only “some right to the property, including a bare possessory right.” This position was traced to Pittis Stavros v Public Prosecutor [2015] 3 SLR 181 (“Pittis Stavros”), where the High Court had observed that legal ownership was not required; the entrusting party needed some right to the property, including a bare possessory right. The Court of Appeal also relied on the longstanding decision in R v Tan Ah Seng [1935] MLJ 273, which supported the proposition that criminal misappropriation of money entrusted to a person can be prosecuted even if the entrustment was for a criminal purpose.
Because Question 1 was already settled, the Court of Appeal held that the second GCK requirement—question of law of public interest—was not satisfied. The court rejected the applicant’s attempt to characterise the issue as novel or contested. It further observed that, unlike cases where there might be conflicting High Court views, there was no divergence at the High Court level on the relevant principle. The court also noted that the applicant had, in his own materials, accepted that Maria possessed at least a bare possessory right to the S$81,000. In that context, the court considered it untenable to argue that Question 1 raised a matter of public interest requiring further appellate clarification.
Questions 2, 3, and 4 were treated together as follow-up questions to Question 2. The Court of Appeal held that these questions failed multiple GCK requirements. First, Question 2 did not disclose a question of law of public interest because the degree or nature of possession required by the entrustor had already been addressed by existing authority. Second, Question 2 failed the third GCK requirement because it misrepresented the position adopted by the High Court Judge. The High Court Judge did not reason by distinguishing “actual possession” from “constructive possession.” Instead, the High Court accepted the Pittis Stavros approach: the entrusting party must have some right to the property, and that right may include a bare possessory right. Therefore, the “nature” of possession as framed by the applicant was not something that genuinely arose from the High Court’s reasoning.
Third, the Court of Appeal found that Question 2 also failed the fourth GCK requirement. Even if the Court of Appeal were to answer Question 2, it would not have affected the outcome because the High Court’s decision did not turn on whether Maria had actual or constructive possession. The High Court’s decision turned on whether Maria had at least a bare possessory right, and the applicant had repeatedly acknowledged that Maria had such a right in his written submissions. In other words, the proposed legal refinement would not have changed the legal basis for the conviction as determined by the High Court.
Although the excerpt provided is truncated after the court’s discussion of the applicant’s acknowledgements, the Court of Appeal’s reasoning pattern is clear: the court was not willing to entertain questions that were either (a) already settled, (b) not genuinely connected to the High Court’s reasoning, or (c) incapable of affecting the outcome. This strict approach reflects the purpose of criminal references: they are not a mechanism for re-litigating issues or obtaining advisory opinions, but a targeted tool for resolving genuine questions of law that matter for the disposition of the case and for the public interest.
What Was the Outcome?
The Court of Appeal dismissed Criminal Motion No 14 of 2021. The court held that none of the applicant’s seven questions satisfied the cumulative requirements for a criminal reference under s 397 of the CPC as articulated in GCK. Question 1 failed because it was already settled and did not raise a question of public interest. Questions 2, 3, and 4 failed because they mischaracterised the High Court’s reasoning and would not have affected the outcome.
As a result, the applicant’s attempt to obtain appellate clarification through a criminal reference did not succeed, and the conviction and sentence imposed by the District Court (as upheld by the High Court) remained undisturbed.
Why Does This Case Matter?
This case is significant for criminal procedure practitioners because it illustrates the Court of Appeal’s disciplined gatekeeping role in criminal references. Even where an applicant frames multiple questions, the court will scrutinise whether each question truly meets all four GCK requirements. The decision reinforces that the “public interest” requirement is not satisfied by merely rephrasing settled law or by presenting issues that do not genuinely arise from the High Court’s reasoning.
Substantively, the case also reaffirms the breadth of the “entrusted with property” element in criminal breach of trust. Through its reliance on Pittis Stavros and R v Tan Ah Seng, the Court of Appeal confirmed that the entrusting party need not be the legal owner; it is sufficient that the entrusting party has some right to the property, including a bare possessory right. For lawyers assessing criminal breach of trust charges, this is a useful reminder that entrustment can exist even where the entrustor’s interest is limited to possession or a possessory right.
For law students and litigators, the case provides a practical template for evaluating whether a proposed question for reference is viable. It is not enough that a question is framed as a “question of law”; it must be of public interest, it must arise from the High Court’s reasoning, and it must be outcome-determinative. The decision therefore serves as a procedural checklist and a substantive guide to how courts interpret and apply the entrustment element in s 405.
Legislation Referenced
- Criminal Procedure Code (Cap 68, 2012 Rev Ed), s 397
- Penal Code (Cap 224, 2008 Rev Ed), s 405
- Penal Code (Cap 224, 2008 Rev Ed), s 406
Cases Cited
- Public Prosecutor v GCK and another matter [2020] 1 SLR 486
- Raj Kumar s/o Brisa Besnath v Public Prosecutor [2021] SGHC 57
- Pittis Stavros v Public Prosecutor [2015] 3 SLR 181
- R v Tan Ah Seng [1935] MLJ 273
- Wong Sin Yee v Public Prosecutor [2001] 2 SLR(R) 63
- [2021] SGCA 88
Source Documents
This article analyses [2021] SGCA 88 for legal research and educational purposes. It does not constitute legal advice. Readers should consult the full judgment for the Court's complete reasoning.