City Harvest case: Judgment reserved for criminal reference hearing
A combination photo shows City Harvest Church's members (top L-R to bottom L-R), founder Kong Hee, deputy senior pastor Tan Ye Peng, former fund manager Chew Eng Han, former finance manager Sharon Tan, former finance manager Serina Wee and former treasurer John Lam. TODAY file photo
SINGAPORE — The High Court’s recent decision to cut the jail terms of six former City Harvest Church (CHC) leaders has upended a long-held principle of having heads of organisations who commit criminal breach of trust (CBT) face the harshest penalties available, argued prosecutors on Tuesday (Aug 1).
It means directors now get off with a “slap on the wrist, whereas their subordinates would suffer significantly harsher punishment”, said prosecutors.
The five-member Court of Appeal reserved judgment at the end of the hearing, which lasted more than five hours.
The prosecution, led by Deputy Attorney-General Hri Kumar Nair, argued that the High Court’s split 2-1 decision in April was wrong.
It convicted the six CHC leaders of CBT under Section 406 of the Penal Code, which carries a maximum jail term of seven years — instead of Section 409 of CBT by an agent, which carries a higher maximum jail sentence of 20 years.
Two of the three judges on the panel found that an “agent” under Section 409 must refer to “professional agents”, who offer their agency services as a “commercial activity” — which the CHC leaders did not.
As a result, the offenders — including charismatic founder Kong Hee — had their jail terms significantly slashed. The new sentences ranged from seven months to three-and-a-half years, down from the jail terms of 21 months to eight years earlier imposed by the State Courts.
With 16 reported cases of directors convicted under Section 409 in the past 40 years, the High Court’s decision on the CHC leaders “gives rise to a conflict of judicial authority in Singapore”, argued the prosecution in its a criminal reference seeking clarity on questions of law of public interest.
The church leaders were convicted of misappropriating about S$50 million of church funds through sham bond investments and other transactions.
Five of the six former leaders have begun serving their jail terms, while CHC’s former fund manager Chew Eng Han, 56, has yet to begin serving his sentence.
Kong, 52; his former second-in-command Tan Ye Peng, 44; former CHC finance committee member John Lam, 49; and former finance managers Serina Wee, 40, and Sharon Tan, 41, appeared in court in purple prison garb.
The men had had their hair reduced to a buzz cut, but it was Kong, who had not previously appeared in public with white hair, who stood out.
His wife, pop singer Ho Yeow Sun, was not present, but other church supporters filled the public gallery after queuing for tickets from as early as 7am. They waved at the five when they appeared in the courtroom and gave them a thumbs-up of encouragement.
Several times during the hearing, Judge of Appeal Andrew Phang asked Mr Nair as well as the defence lawyers if they agreed there was a “lacuna”, or gap, in CBT laws.
Justice Phang agreed with Mr Nair’s argument that the court should always avoid absurd results — except to avoid violating the language of statutory provisions.
But the courts cannot “work backwards” and the “ends do not justify the means”, he said.
“Directors” were not among the groups of people specified in Section 409, noted Justice Phang, who was flanked by Judge of Appeal Judith Prakash and Justices Belinda Ang, Quentin Loh and Chua Lee Ming.
Mr Nair argued that the High Court had not defined “agent” based on previous decisions, in Singapore or elsewhere.
The High Court had also erred in its interpretation of Section 409’s description of an agent committing CBT “in the way of his business”.
A commercial activity done for profit is not the only meaning of the phrase, which Mr Nair argued should also encompass actions “in the course of one’s regular duties or functions”.
The intent behind aggravated CBT offences was to punish more severely, breaches of trust by “persons of higher station in whom great trust and confidence is reposed”, he argued.
“For the past four decades, Section 409 has been an important deterrent against directors betraying the trust reposed in them by committing CBT. The gravest and deepest betrayals of trust were visited by the harshest punishments available under the law on CBT,” the prosecution said in its written submissions. “However, the majority’s decision has turned things on its head. No longer would directors, standing at the apex of their organisations, be subject to the most serious punishment ... As interpreted by the majority, Section 409 makes a mockery of the law.”
Lawyers representing the former church leaders readily agreed there was a gap in CBT laws.
Mr Nair’s arguments constituted “lawmaking” — which is beyond the courts’ purview — instead of interpretations of the law, argued Tan Ye Peng’s lawyer N Sreenivasan.
Lam’s lawyer Kenneth Tan said the prosecution was “asking the court to design a square hole and put a round peg” into it.
In joint-written submissions, the defence also claimed the prosecution was seeking to use the criminal reference to “appeal the High Court’s decision”.
“It is furthermore an abuse to ask the Court of Appeal to consider fresh issues relating to the merits of the case,” said the lawyers.
What is a criminal reference?
A Criminal Reference is a type of legal hearing before the apex court, which is limited to criminal cases in which a question of law of public interest arises in a High Court decision on an appeal.
When the question is before the Court of Appeal, the judges hearing the case can decide whether to answer it, based on the merits of the question.
The court may also revise the High Court’s decision after the Criminal Reference hearing.
Criminal References are held in open court, and the decision of the Court of Appeal in the matter is final.
Recent high-profile examples included the Brompton bikes case, where the Public Prosecutor had sought clarification from the Court of Appeal in 2015, on whether a jail term should be the default starting position for convicted public servants who provided false information during investigations into improper procurement or the abuse of power.
It filed the Criminal Reference after a High Court dismissed its appeal against a S$5,000 fine for former National Parks Board (NParks) assistant director Bernard Lim Yong Soon.
The judges hearing the Criminal Reference felt that it was not a question of law of public interest and did not disturb the High Court’s ruling.
