CJ: Restitution can weigh in favour of another offender

It also goes into reducing economic harm suffered by victim, Chief Justice says

Restitution made to a victim of financial crime by one offender, can help lower the sentence of another offender, Chief Justice Sundaresh Menon has ruled.

Restitution is generally considered a mitigating factor for the person who made it, as it shows remorse. But restitution also goes into reducing the economic harm suffered by the victim, the Chief Justice said.

This has a bearing on the sentence imposed on the offender who caused the loss, especially if the offender was never meant to benefit personally.

He said this in his written judgment in a case involving a businesswoman who helped a manager at Nike to inflate claims from the sports goods company.

He reduced her jail term from 13 weeks to five weeks.

Anne Gan Chai Bee was the owner of a firm called D3, which was engaged by Nike to design and install store displays. D3 would make reimbursement claims to Nike for the expenses and salaries of the three employees working on Nike projects.

The claims were submitted to Nike product presentation manager Joanne Cheong Sook Yin, who then handed them to Nike's finance department.

Ms Cheong hatched a plan to exploit this arrangement by making illegitimate claims and roped in Gan, who agreed to help in order to maintain their business relationship.

Ms Cheong handed receipts for expenses incurred by her and two colleagues at Nike to Gan, who then inflated her firm's invoices by including these sums in the receipts.

After the funds were disbursed, Gan would transfer the illegitimate gains to Ms Cheong.

Between 2012 and 2014, Ms Cheong submitted 154 inflated invoices from D3 to Nike, which paid out $77,546 more than it should have. She has made full restitution.

In 2016, she was sentenced to 20 weeks' jail after pleading guilty to 22 charges of using false receipts to deceive her employer.

Gan was sentenced to 13 weeks' jail after pleading guilty to 10 charges of giving false receipts to Ms Cheong to mislead Nike. She appealed to the High Court against her sentence, asking for a fine.

In his judgment, released on Thursday, CJ Menon said the district judge's sentencing approach, to decide the total sentence based on his overall impression of Gan's offences, was wrong.

The proper approach, he said, was a two-step analysis to ensure consistency in outcomes and transparency in reasoning.

The first was to determine the sentence for each charge.

The second was to consider whether there are any sentencing factors to justify adjusting the individual sentences or running them consecutively.

In this case, said CJ Menon, each of Gan's charges merited a fine, but taken as a whole, warranted jail time. One aspect that he found to weigh in Gan's favour was that the economic harm sustained by Nike had been significantly reduced by Ms Cheong's restitution.

But Gan's premeditation and the long period over which she committed the offences justified a jail term, he said. CJ Menon imposed one week's jail per charge and ordered five of the terms to run consecutively.

A version of this article appeared in the print edition of The Straits Times on March 02, 2019, with the headline 'CJ: Restitution can weigh in favour of another offender'. Print Edition | Subscribe