City Harvest
case: Court of Appeal reserves judgment on April
ruling
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 full (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”.
Source: CNA/mz
