[SINGAPORE] Hin Leong founder Lim Oon Kuin should be granted judicial mercy, like property tycoon Ong Beng Seng, as the heightened risk of the 83-year-old bankrupt falling in prison may lead to his death, Senior Counsel Davinder Singh told the High Court on Friday (Nov 14).
In appealing against Lim’s conviction and sentence of 17 years and six months’ jail on three charges of cheating and forgery, Singh argued that while Ong, 79, had other very serious medical conditions, Lim is older than him, and “to that extent, the link between fall and death is exacerbated”.
Lim’s medical conditions include anxiety, depression, insomnia, a large prostate, asthma, coronary artery disease and cerebral vascular disease with cognitive impairment and sensorineural hearing loss.
In arguing for judicial mercy for his client, Singh disputed the prosecution’s arguments that Lim’s health will naturally deteriorate regardless of imprisonment and that his risk of falling can be mitigated by Singapore Prisons Service’s (SPS) proper management.
Even if judicial mercy is not granted, there are very strong reasons why Lim’s old age and medical conditions should play a mitigating role in reducing his sentence, he added.
Judicial mercy is the discretionary power of Singapore’s courts to give a more lenient sentence because of exceptional mitigating circumstances.
It has a high threshold, and has so far been exercised in only two types of situations. The first is when the offender is suffering from a terminal illness, and the second is when the offender is so ill that jail time would carry a high risk of endangering his life.
Ong, a billionaire property tycoon, was fined S$30,000 on Aug 15 for abetting the obstruction of justice in a case linked to former transport minister S Iswaran. The judge had agreed with the prosecution and defence that judicial mercy should be exercised in this case due to his ill health.
Singh said on Nov 14: “Judicial mercy was granted in (Ong Beng Seng’s) case because there was a risk of falling. There is no assurance or guarantee that the system within SPS will ensure that (Ong) will not die as a result of a fall. That’s exactly our case here.”
But Deputy Chief Prosecutor Christopher Ong disagreed, calling Lim’s plea for judicial mercy an “opportunistic afterthought”.
“Lim is hanging his hat on the fact that his medical report says he has a fall risk and the potential consequence is he may lose his life,” DCP Ong said.
But that is very different from Ong Beng Seng’s case, he noted. While fall risk was one of the things considered, that was in the context of the underlying illness that Ong suffered from, which is a rare complex form of cancer.
“That’s completely absent in Lim’s case,” DCP Ong pointed out.
Ong Beng Seng is diagnosed with advanced multiple myeloma, a cancer that affects white blood cells, which are crucial to the body’s immune response. The cancer had hollowed out Ong’s spinal vertebrae, which means the strength of his spine has been so compromised that any fall or injury could result in permanent disability or life-threatening injury.
What determined the exercise of judicial mercy in his case is not whether there is a risk, but whether there is a significant increase in risk in prison as opposed to outside prison, DCP Ong said.
The defence also argued that the criminal trial judge erred in convicting Lim by relying on a joint statement issued on April 21, 2020 by the Monetary Authority of Singapore (MAS), Enterprise Singapore (ESG) and the Maritime and Port Authority of Singapore (MPA) to “find that Lim’s offences caused harm”.
In the statement, ESG said Singapore’s oil trading sector remains resilient and is diversified with more than 130 companies that trade energy products.
MPA said: “There may be some short-term minor disruptions due to the lapse of contractual obligations by Ocean Bunkering and Hin Leong Marine International.”
MAS stated that it was in close contact with the banks on Hin Leong‘s developments and “reminded the banks not to de-risk indiscriminately from the bunkering and oil trading sectors”. It added that the banks are well capitalised and diversified in their exposures to these sectors.
As such, Singh pointed out: “It’s hard to understand how there’s any link between the joint statement and (Lim’s) offences.”
Lim was found guilty of cheating HSBC, through Hin Leong employees, by claiming that the oil trading firm had entered into two contracts to sell oil to China Aviation Oil (Singapore) and Unipec Singapore, and then applying for discounting of these purported transactions.
The court found that the two transactions were complete fabrications, concocted on Lim’s directions, and the discounting applications were supported by forged or fabricated documentation. As a result, the bank was deceived into disbursing US$111.6 million to Hin Leong, of which US$85 million remains its total outstanding loss.
Singh questioned how Lim’s cheating and forgery offences would impact Singapore’s bunkering and financial services industries.
“HSBC learnt of the two discounting applications because Lim arranged for a call to them and apologised, and the bank then called the police. And suddenly, public confidence in the financial services sector was undermined?” he asked.
DCP Ong said the fact that various agencies saw it necessary to issue a joint statement immediately after Hin Leong filed for bankruptcy protection in 2020 showed how important the bunkering and oil industry is to Singapore’s economy.
Justice Hoo Sheau Peng asked: “But how do you attribute risk to public confidence from (Lim’s cheating and forgery) offences?… Is it right to rely on these factors, when it seems to me that any loss of public confidence was due to the collapse of Hin Leong?”
DCP Ong replied: “That’s the difficult position we find ourselves in… One question that’s bound to occur to the public is whether this is only the tip of the iceberg.”
He added: “Short of taking surveys on whether the public is affected by an event, we should consider whether there’s a gradual erosion (in confidence) when such events take place.”
He also disputed the defence’s argument that Lim came clean and told HSBC of the impending default, citing evidence that Lim did that to “buy time”.
Lim’s explanations for the transactions to the bank were false, do not demonstrate remorse, and are the subject matter of charges against him, DCP Ong said.
But Singh rebutted: “Why would (cheating and forgery) which took place over two working days amount to anything remotely close to an erosion of confidence in our banking system? What happened to the banking system as a result of the three offences? Nothing.” THE STRAITS TIMES
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