SINGAPORE: The Court of Appeal has reserved judgment on the prosecutor's bid to seek clarification on the High Court's ruling in April this year that convicted the six City Harvest Church leaders on reduced charges and cut their sentences.
The apex court on Tuesday (Aug 1) said it would deliver its judgment "in due course" but did not specify when.
On Tuesday morning, the public gallery was full and the anticipation palpable as pastor Kong Hee was led into the Court of Appeal shortly before 10am, dressed in a purple prison uniform and handcuffed. His hair was white and cropped in a short crew cut.
He was closely followed by former deputy senior pastor Tan Ye Peng, former secretary of City Harvest Church’s management board John Lam and former finance managers Sharon Tan Shao Yuen and Serina Wee. The other two men, Lam and Tan, had their heads shaved while both women had their hair cut in short bobs.
All five appeared in good spirits, nodding and smiling at friends in the gallery.
The sixth person involved, former fund manager Chew Eng Han, arrived at about 9.45am. Because he is representing himself, the High Court allowed him to remain on bail to prepare for the hearing, which began at 10am sharp.
Some of their family members were also seen in court. Kong’s wife, singer Ho Yeow Sun, was not present.
Public interest in the case remained high, with all 55 tickets for the public snapped up by 7am.
Members of the public who did not secure a ticket were seen waiting outside the courtroom for the chance to take the spot of anyone leaving the packed public gallery.
Some supporters of the church leaders were seen wiping tears as the convicts arrived.
TWO QUESTIONS OF LAW
The public prosecutor had referred the case to the Court of Appeal – Singapore’s highest court – following a High Court decision to convict Kong and five others of reduced charges and slashing their jail terms.
For misappropriating S$50 million of church funds, a record amount in Singapore’s legal history, the leaders were originally convicted of the most aggravated form of criminal breach of trust (CBT) under section 409 of the Penal Code and were sentenced to jail terms of between eight years and 21 months.
However, after all six appealed against their convictions, the High Court – in a split decision in April - convicted them of a reduced charge under section 406 of the Penal Code, the least aggravated form of criminal breach of trust.
Tuesday's proceedings are being presided over by a five-judge panel composed of Judges of Appeal Andrew Phang and Judith Prakash and Justices Belinda Ang, Quentin Loh and Chua Lee Ming.
Before this panel, Deputy Attorney-General Hri Kumar Nair said the prosecution had referred the case to the apex court to resolve two questions of law of public interest:
- Under section 409, does the expression “in the way of his business as an agent” refer only to a person who is a professional agent?
- Whether directors of companies and the equivalent in societies or charities entrusted with property are entrusted “in the way of his business as an agent”.
The High Court decision had hinged on the wording of section 409, which lays down the law for criminal breach of trust by an “agent”.
In a split decision (2-1), the court found Kong and the others did not act as “professional agents”, defined as “ones who professed to offer their agency services to the community at large … for profit”.
The judges in the majority - Judge of Appeal Chao Hick Tin and Justice Woo Bih Li - acknowledged their decision would upset the state of affairs, but said: “This does not, however, mean that we can ignore the wording of the (law). We agree that it is intuitively unsatisfactory.”
On Tuesday, Mr Kumar argued that the High Court’s “absurd”, “incorrect” interpretation of the law “… leads to absurd results where high-ranking directors who are in a position to misappropriate huge amounts of money are subject to less severe punishment than low-ranking employees - a result which the majority itself conceded as 'intuitively unsatisfactory'".
“This is not quite right,” he said, acknowledging that the High Court’s decision had highlighted “a gap in the law”, and that the decision has caused “conflict of judicial authority in Singapore” in relation to “the proper interpretation of section 409”.
The Court of Appeal could remedy the situation by considering other “possible, reasonable” interpretations of the law, Mr Kumar said.
He urged the court to consider that the intent behind aggravated criminal breach of trust offences was to punish more severe breaches of trust.
“In the circumstances, it is beyond doubt that the intention and purpose behind section 409 was to punish more severely persons who held positions of trust and confidence whose breaches of trust would have serious consequences. It had nothing to do with whether these persons were engaged in profit making, offered their services to the community at large or were external to the persons entrusting them with property.”
However, Judge Phang said the courts may not be the “correct institution” to fill that “gap in the law”.
“Are these policy arguments that the legislature should take account of and amend the law accordingly?” he asked.
A GAP IN THE LAW
Lawyers for Kong and five others jointly argued that any “gap in the law” should be filled by Parliament. “It’s not the court’s place to deal with it,” Mr Andre Maniam, who represented Serina Wee, said.
Pointing to similar “gaps in the law” faced by the UK and Malaysia, Mr Maniam said these jurisdictions solved the problem by amending their laws.
Malaysia, for example, amended the law in 1993 to read: “… in his capacity of a public servant or an agent.” They removed the phrase “in the business of an agent”, Mr Maniam argued, “because that is what stands in the way of a conviction under section 409”.
The High Court took the view that the gap is a policy one, to be filled by legislation, Senior Counsel N Sreenivasan said. “The Public Prosecutor takes the view it has to be filled up by judicial construction, by creating a type of liability that section 409 does not envisage,” he argued.
“They’re (the prosecution) is saying it’s awful, it’s terrible that directors don’t get caught under section 409. The High Court agreed … the difference is they took the view that the gap has to be filled … by legislation,” Mr Sreenivasan said.
The “unease” of the High Court, in coming to its “intuitively unsatisfactory” decision, “is not something that undermines the decision,” Mr Sreenivasan argued. “It validates it.”
“It validates it because they were fully aware … how badly that interpretation (of section 409) would sit with our normal instincts. In spite of knowing this, they took the view that it is better to give a ‘plain’ (or literal) reading to the (law) … (to) avoid ambiguity,” Mr Sreenivasan said. He represented Pastor Tan Ye Peng.
The lawyer cautioned the apex court against “bringing in what you want the statute to mean. We all want a lot of things … doesn’t mean you construct provisions to meet your needs,” he said. “You cannot fill (the gap) by construction. That is not serving the purpose of the (law),” he added.
Mr Sreenivasan also criticised the prosecution’s submissions and joked that their arguments before the court “will make a wonderful Second Reading speech for amendments to section 409”.
Senior Counsel Kenneth Tan, representing John Lam, said prosecutors were “not just trying to put a square peg into a round hole”. They are “trying to put a square peg into a non-existent hole. They’re asking this court to design a square hole.
“It’s for Parliament … because this court doesn’t design square holes,” Mr Tan said, to laughter in the public gallery.
Judge of Appeal Andrew Phang, who led the Court of Appeal on Tuesday, expressed this concern several times throughout the five-hour hearing: “Where is the line to be drawn between interpretation and legislation? That is the key question.”
“The majority (at the High Court) acknowledged there is a limit to how much they can interpret (how far they can ‘stretch’ the law) and they cannot legislate,” JA Phang said.
“We’re looking at the (Penal Code), the vast majority of the Code has not been amended for well over 150 years. So it is entirely conceivable that what was suitable at that historical point in time may not be suitable now,” he added.
At the end of the hearing, JA Phang said the court would reserve judgment, and deliver it “in due course”.