Friday, 2 February 2018

City Harvest Church case: Court of Appeal upholds shorter jail terms for former church leaders; Kong Hee likely out of jail by August 2019

Home Affairs and Law Minister K. Shanmugam to make ministerial statement in Parliament on City Harvest Church ruling
Bid to reinstate longer jail terms for CHC leaders rejected
By Selina Lum, Law Correspondent, The Straits Times, 2 Feb 2018

The final page was turned on Singapore's most expensive criminal trial, involving a powerful church and its charismatic leader, when a five-judge panel dismissed a bid by the prosecution to reinstate the original convictions for founder-pastor Kong Hee and five others.

But the long-running saga over the misuse of millions in church funds is likely to remain in the public eye, with a Cabinet minister set to speak in Parliament about the ruling and the Attorney-General's Chambers (AGC) pledging to work with the Government on revisions to the law.

The decision by the Court of Appeal yesterday hinged on whether the six former City Harvest Church (CHC) leaders should have been convicted of simple criminal breach of trust (CBT) or of the more serious form as agents.

The court yesterday unanimously ruled that the term "agent" in Section 409 of the Penal Code applies only to someone who is a professional agent, and not to company directors and key officers of charities, such as the six CHC leaders.

The judges noted the "strong and urgent impulse" to ensure that persons in positions of responsibility are made to undergo a sentence that reflects the full measure of their harm and culpability. But they added that the courts are ill-suited to undertake a "long overdue" and wide-ranging policy review.

Also, the shaping of the remedy for any gap in law should be left to Parliament, said Judge of Appeal Andrew Phang, in reading the decision reached by him, Judge of Appeal Judith Prakash, and Justices Belinda Ang, Quentin Loh and Chua Lee Ming.

"A hard case should not be allowed to make bad law," said Justice Phang, noting that the accused are "not getting away unpunished" and face substantial jail terms.



The AGC said yesterday it would work with relevant government ministries "on the appropriate revisions to the Penal Code, to ensure that company directors and other persons in similar positions of trust and responsibility are subject to appropriate punishments if they commit criminal breach of trust".

Home Affairs and Law Minister K. Shanmugam said in a Facebook post he would make a ministerial statement on the Government's position. "This is a serious matter," he said.



The decision meant Kong, 53; deputy senior pastor Tan Ye Peng, 45; former finance manager Serina Wee, 41; and former finance committee member John Lam, 50, will continue their current reduced jail terms of between 1½ and 3½ years, which they began serving in April last year.

Former finance manager Sharon Tan, 42, has completed her seven-month jail term while former fund manager Chew Eng Han, 57, has secured a new deferment for his jail term of three years and four months till after Chinese New Year.

Kong received the longest jail term among them, which was reduced from eight years after the High Court cleared the six of CBT as agents and convicted them of plain CBT under Section 406.

In a bid to spread the gospel through Kong's singer-wife Sun Ho's secular music career, the former leaders had misappropriated $24 million in CHC's building funds through sham bond investments. They also misused another $26 million to cover up the initial crime.

The court hearing yesterday, which was held following the rarely invoked criminal reference application by the AGC, ends a legal marathon that will be remembered as the costliest ever here, with estimates of costs reaching $15 million.



Senior Counsel Edwin Tong, Kong's lawyer, said the pastor was relieved at the decision, looking forward to finishing his jail sentence and "getting on with his life".





























Highlights of the decision
By Selina Lum, Law Correspondent, The Straits Times, 2 Feb 2018

AGENT OR NOT?

The Court of Appeal ruled the term "agent" in Section 409 of the Penal Code, which provides for enhanced punishment for criminal breach of trust (CBT) for certain classes of people, applies to someone who is a professional agent.

As such, company directors and key officers of charities, such as the six found guilty in the City Harvest Church case, could not be convicted under Section 409.

The court said its conclusion was supported by the language and structure of the provision itself. There is also a coherent and well-established line of authority, tracing back almost two centuries, that an "agent" under Section 409 must be an individual who is in the business of providing agency services.


RULING'S RAMIFICATIONS

For the past 40 years, company directors who commit CBT have been charged under Section 409, following a High Court ruling in the 1970s.

Now that this position is held to be wrong in law, this means there is a lacuna - or a gap in the law - relating to the punishment to be meted out to company directors and key officers of charities and societies who commit CBT.





PARLIAMENT TO FILL GAP

The court said the gap in the law should be remedied by Parliament.

The court acknowledged there is a strong and urgent impulse to ensure that persons in positions of responsibility are made to undergo a sentence that reflects the full measure of their harm and culpability.

But a "strained application of interpretative principles" by the courts would only represent "a proverbial papering over part of the conceptual cracks and shortcomings" in Section 409.


 



UNANIMOUS DECISION

Judges of Appeal Andrew Phang and Judith Prakash, and Justices Belinda Ang, Quentin Loh and Chua Lee Ming concurred on the interpretation of "agent" under Section 409.

This was unlike the split decision in April last year, in which Justice Chan Seng Onn had a different view from then Judge of Appeal Chao Hick Tin and Justice Woo Bih Li.

That decision saw the former church leaders cleared of their original convictions under Section 409 and found guilty of simple CBT under Section 406.


PRINCIPLES FOR CRIMINAL REFERENCE

The court laid down guiding principles for scenarios when the Public Prosecutor files a criminal reference in cases where the magistrate's appeal has been heard by a specially convened panel of three judges sitting at the High Court.

Though the City Harvest case had been decided by a three-judge High Court, the Court of Appeal found that the circumstances were "sufficiently exceptional" to justify hearing the case to make an authoritative determination.

This was because there were two High Court decisions - the 1970s judgment and the one in April last year - that adopted diametrically opposite positions on the issue.

It was amplified by the fact that the High Court panel was split on its decision last April.










Court ruling a long overdue clarification on CBT offences, say lawyers and legal academics
Review of law is long overdue, experts agree
By Selina Lum, Law Correspondent and Tan Tam Mei, The Straits Times, 2 Feb 2018

Lawyers and legal academics say the Court of Appeal's decision provides a long overdue clarification of whether company directors should be regarded as agents in criminal breach of trust (CBT) offences under Section 409 of the Penal Code.

They also echoed what the Court of Appeal said in its judgment - that a review of the law "was not only essential but also long overdue". The law was first enacted more than a century and a half ago and has remained largely unchanged.

The highest court in the land had said it is now up to Parliament to fix the "dated" piece of legislation that was used to charge City Harvest Church (CHC) founder Kong Hee and five former church leaders for misusing millions in church money.

Section 409 states that a person who commits criminal breach of trust "in the way of his business as a banker, a merchant, a factor, a broker, an attorney or an agent" is subject to heavier punishment. For the past 40 years here, company directors who commit CBT have been charged under this section.



But yesterday, the Court of Appeal affirmed a ruling last year that this was wrong in law as the term "agent" refers to professional agents: people who make a living by offering services as agents.

As such, directors and key officers of charities, such as the six found guilty in the CHC case, cannot be convicted under Section 409. Their original convictions under this section were reduced to plain CBT under Section 406 by the High Court in April last year, which led to shorter jail terms.

The court noted there is a strong impulse to see crime punished in accordance with the perceived culpability of its perpetrators.

And in the modern context, where directors and officers of charities play key roles, there did not appear to be a good policy reason to ignore their heightened culpability and the enhanced potential for harm were they to commit CBT.

But the court said the task of law reform should be left to Parliament.

The court also noted that in Malaysia, the legislature there has reformed its equivalent of Section 409 by specifically enacting a broad provision, tailored for the modern commercial context, which targets, among others, trustees, directors and managers or other officers of any company, club, partnership or association.

"A sweeping reform that is carried out following a careful and comprehensive evaluation of the classes of persons who are deserving of enhanced criminal punishment is an outcome that a court simply cannot achieve through the exercise of statutory interpretation," said the court.

Lawyer Terence Seah, a partner at Virtus Law, welcomed the clarification. He said the ambiguity has made it difficult when advising clients whether or not they will be covered as directors. "Because in some sense, directors can be considered as agents, but it's not a strict legal classification," he added.



On the need for Parliament to fix the law, Mr Shashi Nathan from Withers KhattarWong said: "The court can't make law, the court can only state and interpret law. If there are changes to be made, it can only be made by legislation."

At the time when laws are enacted, lawmakers would not have envisaged what happens in future, said lawyer Philip Fong from Eversheds Harry Elias. "There may be a need for laws to be updated to deal with existing social norms and structures," he added.

Singapore Management University law don Eugene Tan noted that the Penal Code was first drafted in the Victorian England era.

"A Penal Code review is timely and urgent as well as a reminder not to accept conventional wisdom about what each provision means, and to ensure that the law remains relevant," he said.

Professor Tan added that it may be hard for some to understand why, for four decades, the provision was accepted by prosecutors, lawyers and judges.

"It took a case like this, with the legal firepower of several Senior Counsel, to expose the inadequacy of Section 409."









Fears give way to relief for ex-church leaders and supporters
By Selina Lum, Law Correspondent, Tan Tam Mei and Gracia Lee, The Straits Times, 2 Feb 2018

The court's decision comes as a relief to City Harvest Church (CHC) founder Kong Hee, who is looking forward to finishing his jail term. Meanwhile his singer-wife Sun Ho says she is grateful to God and thankful to everyone who has "loved us in spite of everything".

Senior Counsel Edwin Tong, the lawyer for Kong, said he spoke to the megachurch founder shortly before the start of the hearing yesterday. "He (Kong) said he was at peace with himself and prepared to accept whatever happened," Mr Tong told The Straits Times.

After the verdict that dismissed the prosecution's bid to reinstate the original conviction for Kong and five other church leaders, and maintained their reduced jail terms, Kong told Mr Tong he was relieved and now focused on finishing the remainder of his sentence and "getting on with his life".

The five other CHC leaders are Ms Sharon Tan, Chew Eng Han, Serina Wee, John Lam and Tan Ye Peng.

Ms Ho, who goes by her stage name Sun Ho and was not in court, later told The Straits Times over the phone that she was "just grateful to God for the result of the matter".

"I'm very thankful for everyone who has journeyed with us and prayed for us and loved us in spite of everything," she added.



The former CHC leaders had misappropriated $24 million in CHC building funds through sham bond investments in music production firm Xtron and glass maker Firna, and then misused a further $26 million to cover up the initial crime. The bonds were used to fund a church mission, the Crossover Project, to spread the gospel through Ms Ho's secular music career.

Relief replaced fears for church members, the families and friends of the six former CHC leaders after the five-judge Court of Appeal delivered its decision.

Ms Tan was teary-eyed and hugged supporters as she left the courtroom.

Later, her lawyer, Mr Paul Seah, told reporters that she was very grateful that "the journey is over".

Chew said he had no strong feelings over the court's decision as "it came out as we had hoped for". "It never feels good to come to court," he told reporters.

Mr Kenny Low, the husband of Wee, said the family is happy this saga is finally coming to a close. "Now I can tell the kids a date that mummy is coming home," he said.

Lawyer Nicholas Narayanan, who acts for Lam, said his client was "very relieved that there's finally closure to the longstanding case".

Mr Narayanan said he has written to the prison authorities to ask that Lam, who was given a 11/2-year term, be placed on the home detention scheme as soon as possible. If approved, Lam will get to serve the tail end of his sentence outside the prison but will wear an electronic tag and observe a strict curfew.

In a statement on the CHC website yesterday, executive pastors Aries Zulkarnain and Bobby Chaw said the verdict allows the church leaders to continue serving their sentences with more certainty.



Some church members left the courtroom looking teary-eyed, while others embraced one another. A queue to attend the hearing for the final verdict had started forming at 3.30am yesterday at the Supreme Court building.

Business consultant Lester Chee, 29, who has been a church member for 12 years, said he was thankful for the outcome.

"We all miss our leaders dearly and cannot wait to see them again soon," he said, adding that it was "heartbreaking" to see his leaders in the dock.

























 











* Parliament: Government believes sentences in City Harvest case too low, gap in CBT law to be amended soon, says Shanmugam

By Selina Lum, Law Correspondent, The Straits Times, 6 Feb 2018

The law will be changed soon to provide for higher penalties for directors and other senior officers who commit criminal breach of trust (CBT), said Minister for Home Affairs and Law K. Shanmugam yesterday, after a court ruling on the City Harvest Church case resulted in reduced sentences.


He said the Government believes the sentences in that high-profile case were too low, and that it is now up to Parliament to amend the law.


"We hope to make the amendment together with other wide-ranging amendments to the Penal Code," he told the House.


Any changes to the law will apply only to future cases.


Last Thursday, the Court of Appeal upheld a ruling made by the High Court in April last year that Section 409 of the Penal Code, which provides for heavier punishments for certain classes of people who commit CBT, cannot be applied to City Harvest founder Kong Hee and five others who misused millions in church funds.




Yesterday, Mr Shanmugam told the House that the apex court's ruling was "contrary" to the legal position that has been applied by the courts in Singapore for the past 40 years, following a 1976 High Court decision that company directors are liable for aggravated liability under Section 409.


There are at least 16 reported court decisions, and many other unreported decisions, reflecting this principle, said Mr Shanmugam.

The apex court's decision means that there is now a lacuna, or a gap, in the law, he added.

As the law now stands, company directors or key officers of charities can no longer be charged under Section 409, which carries the maximum of life imprisonment.

They can only be charged under Section 406, which is punishable by up to seven years' jail.

However, ordinary employees are covered under Section 408, which provides for up to 15 years' jail.



Mr Shanmugam highlighted that the Court of Appeal acknowledged this gap in the law in its judgment, saying there was no "good policy reason" to ignore the "heightened culpability" of directors and key officers of charities and societies.

"If you're a senior officer, director in the organisation, you're in a position of greater trust, you've considerable authority to make decisions in relation to the organisation's assets. If you abuse that trust, you should be more culpable and you should be liable for more severe punishments compared to an ordinary employee. That's really common sense and there can be no question about that," he said.

He added that the court's decision should be respected and that judges should not be personally attacked.

The minister stressed he was aware that many have expressed their dissatisfaction with the outcome of the case. Netizens have said that the judges let off the rich, or that some judges were lenient because they were Christians.

He said comments should not "sink to the level of abuse, insult and contempt". "That is not right. Judges should not be personally attacked, their integrity impugned, just because people do not agree with their decision."

Mr Shanmugam also emphasised that every defendant - even a child rapist - has a right to choose a lawyer to defend him, and lawyers should not be made to feel that they will be hounded online if they take up cases that "the mob disapproves of".











MPs quiz Shanmugam on Ho Yeow Sun, why law was not changed earlier and other matters
Members of Parliament rose to question Home Affairs and Law Minister K. Shanmugam, after his speech yesterday on amending the law to plug a gap highlighted by the court in the City Harvest Church (CHC) case on penalties for directors who commit criminal breach of trust (CBT). Here are some of the questions he was asked and what he said.
By Selina Lum, Law Correspondent, The Straits Times, 6 Feb 2018

MS CHENG LI HUI (Tampines GRC) asked why the Government had not amended the law earlier, noting that the Court of Appeal had said that a review is long overdue.

Mr Shanmugam replied that since the High Court's decision in a 1976 case, the position has been "settled, clear law", with at least 16 decisions reported in the law books confirming that decision over the years.

The position had been consistently applied by the courts over 40 years, with no doubts or uncertainty expressed.

"Prosecution, defence, everyone proceeded on that basis. And there was no suggestion that the law was in need of any review. There was, therefore, no reason for Parliament to review the position or amend the law. Parliament does not legislate in vain," he said.



MR GAN THIAM POH (Ang Mo Kio GRC) asked about comments questioning why the courts had changed their position, given that the precedent had been in place for so long. Mr Shanmugam quipped that he will send Mr Gan a copy of the court judgment online, as it is more than 150 pages.

He noted that the judges felt that when Section 409 of the Penal Code was drafted, it could not have been the intention of the drafters to deal with directors because company law at the time had not developed to the extent that it has now.

Section 409 provides for harsher penalties for certain classes of people who commit criminal breach of trust, including "agents". For the past 40 years, it has been used to charge directors after the 1976 High Court decision that directors fall under the scope of "agents".

But the court has now ruled that "agents" referred to professional agents in the 19th century, and as such, the provision does not cover directors and key officers in the modern context.

"There are different approaches to interpretation. The other approach is to say, well, you take those words and you apply it as circumstances evolve," said Mr Shanmugam.

He added that the court had also explained why it did not want to do that. In its judgment, the judges concluded that the task of law reform should be left to Parliament as the courts are "ill-suited, and lack the institutional legitimacy, to undertake the kind of wide-ranging policy review of the various classes of persons who deserve more or less punishment for committing CBT in the 21st century".

The court highlighted problems with the definition of "agents" proposed by the prosecution, noting that it would penalise low-level workers while excluding many categories of people deserving of greater punishment, such as trustees.



MR YEE CHIA HSING (Chua Chu Kang GRC) noted that CHC founder Kong Hee's wife Ho Yeow Sun was a "key beneficiary" but had not been charged. He asked if penalties will be introduced such that the beneficiary of proceeds from a CBT case can also be charged.

Mr Shanmugam noted that a beneficiary who receives proceeds without the appropriate knowledge does not automatically become a criminal. "Supposing the person took the money and donated it to a charity, another charity. Does the recipient commit a criminal offence? I think we need to be careful," he said.

He said that the law is currently broad enough to deal with people who act with criminal intention.

MR VIKRAM NAIR (Sembawang GRC) asked if this case will have a big impact on future cases.

Mr Shanmugam said that for cases involving directors or senior officers that are already before the courts, the law as determined by the Court of Appeal will apply to them.

For the cases which are being investigated, the Attorney-General's Chambers will have to take into account the decision in considering the appropriate charges to be brought, he said.





'Everyone has right to choose a lawyer'
By Seow Bei Yi, The Straits Times, 6 Feb 2018

Accused persons have the right to get a lawyer of their choice, and lawyers should not be made to feel that they will be hounded online for taking up certain cases, said Home Affairs and Law Minister K. Shanmugam yesterday.

He stressed that the rule of law depends, among other things, on lawyers being able to act for defendants regardless of the offences they are accused of.

"Even a child rapist is entitled to his day in court and to be defended. It doesn't mean that we or the lawyer defending the person approves of child rape," he said.



Mr Shanmugam was replying in Parliament to a question from Mr Gan Thiam Poh (Ang Mo Kio GRC), who had asked about the minister's stand on people's comments on the City Harvest Church case, which involved the misuse of church funds.

Some claimed that Mr Edwin Tong, a People's Action Party MP who acted as the defence lawyer for church founder Kong Hee, had helped Kong and the other accused get off with light sentences.

Last week, the Court of Appeal dismissed a bid by the prosecution to reinstate the original convictions of Kong and five other City Harvest leaders. They had been given between 21 months and eight years in jail in 2015 for criminal breach of trust and falsification of accounts. But their sentences were cut after the High Court reduced their criminal breach of trust charge to a less serious one last April.

Mr Shanmugam also shared his personal experience yesterday to make the point that defendants have the right to choose a lawyer. He said he had acted both for and against the three prime ministers of Singapore as a practising lawyer.

In 1995, the International Herald Tribune (IHT) was sued for libel by Singapore's top three political leaders at the time - Senior Minister Lee Kuan Yew, Prime Minister Goh Chok Tong and Deputy Prime Minister Lee Hsien Loong.

The newspaper asked Mr Shanmugam to represent it even though he was a PAP MP.

Senior Minister Lee, who pointed out Mr Shanmugam had been close to the three leaders, said then that IHT's choice of lawyer was "the highest tribute to the integrity of the counsel" and "possibly reflected also on the integrity of the Government".

Over the years, Mr Shanmugam said he had acted for people "whose conduct will not be approved of by the general public".

He said the "mob mentality" to hound lawyers and intimidate them into not taking on cases that others disapprove of was "shameful".
















AGC looking into Facebook post with doctored headline of City Harvest news article
By Seow Bei Yi, The Straits Times, 6 Feb 2018

The Attorney-General's Chambers (AGC) is looking into a doctored newspaper report on Facebook that claims a lawyer, who is an MP from the People's Action Party (PAP), saved the people accused in the City Harvest case from harsher sentences.

Home Affairs and Law Minister K. Shanmugam said yesterday that the AGC considers this a case of contempt by scandalising the courts.

The AGC said separately that it had written to Mr Neo Aik Chau about the post he published last Friday on a public Facebook group, whose Chinese name translates to "Policy discussion forum".

It added: "Contempt of court in its various forms harms the proper administration of justice in Singapore. AGC will take firm action against contempt of court, including institution of committal proceedings in appropriate instances."

Mr Shanmugam had brought up the matter when replying to Mr Gan Thiam Poh (Ang Mo Kio GRC). The MP had asked for the Government's response to people's comments on the case, which involved the misuse of millions of dollars of City Harvest Church funds for the pop music career of Sun Ho, or Ms Ho Yeow Sun, wife of senior pastor Kong Hee.

Some claimed the court had let the rich off lightly while others said the lawyer, Mr Edwin Tong, a PAP MP, got them lighter sentences.

Mr Shanmugam said he has asked the police to take a serious view of those who scandalise the court.

He stressed that people who do not agree with a court decision should not make personal attacks on the judges or challenge their integrity. He warned that those who do face the possibility of prosecution.



The newspaper report posted by Mr Neo was taken from Chinese evening daily Lianhe Wanbao. The original headline of the Page 1 article said an outdated law saved the church's founder Kong Hee and five others from harsher penalties, but the false headline said a PAP lawyer saved them from heavier sentences.

The Wanbao report was on the Court of Appeal's decision to uphold a High Court ruling that Section 409 of the Penal Code cannot be applied to the six accused. The section provides for heavier punishments for certain groups of people who commit criminal breach of trust.

Mr Shanmugam said the Facebook post was made to look as if a mass circulation paper had written it, "probably to give more credence to the headline".

When contacted, an administrator of the Chinese-language Facebook group said it had nothing to do with the doctored post and declined to comment. The group, which has more than 4,500 members, carries posts on current affairs, with screengrabs and links to articles from media outlets, including Channel NewsAsia and Lianhe Zaobao.

Comments accompanying the doctored report, which has been posted more than once, include one with a photograph of Prime Minister Lee Hsien Loong with Chinese words slapped on it, which read: "The judges have to give face to our party's lawyer."



Mr Shanmugam said: "AGC takes the view that the suggestion from the fake title is that, the PAP MP was responsible for an unfair, unjust outcome and the courts had let off the defendants lightly because of him."

He also said "the matter is with AGC, and it will be dealt with in accordance with the law". In deciding whether to prosecute, he said, factors considered include who came up with the statement, how seriously people will take it, and how widely it is distributed.

The doctored post has been removed from the Facebook group.











## Facebook user apologises for doctoring City Harvest news article
He uploaded City Harvest article with false headline; apology follows AGC letter to him
By Seow Bei Yi, The Straits Times, 7 Feb 2018

A man who uploaded a doctored newspaper report on Facebook, suggesting a lawyer - who is an MP from the People's Action Party (PAP) - saved the six people accused in the City Harvest Church case from harsher sentences, has apologised on social media.

Mr Neo Aik Chau, 38, a delivery driver, posted the apology on his personal Facebook page yesterday, saying he was wrong to have made the post. He also apologised in at least two other Facebook groups, but not on the public page where he had uploaded the report with a doctored headline.

Mr Neo's social media apologies came a day after the Attorney-General's Chambers (AGC) wrote to him about the false report.

Writing in Chinese on his personal Facebook page, Mr Neo said he "truly made a mistake".

"I spoke frankly without thinking," he wrote. "I swear not to post anything like this again! Please forgive me!" In a separate post in a Facebook group, he said he was not scandalising the court.



On Monday, Home Affairs and Law Minister K. Shanmugam said the AGC considers the Facebook post of the doctored article a case of contempt by scandalising the courts. Later the same day, the AGC said that contempt of court in its various forms harms the proper administration of justice in Singapore, and that it would take firm action against such instances.

Originally posted on a public Facebook group whose name in Chinese translates to "Policy discussion forum", Mr Neo's post was of Chinese-language daily Lianhe Wanbao's Page 1 report but with a false headline.

The original headline said an outdated law saved church founder Kong Hee and five others from harsher penalties, but the false headline said a PAP lawyer saved them, referring to Mr Edwin Tong, an MP for Marine Parade GRC who was Kong's lawyer in the criminal trial.



Shin Min Daily News, a Chinese newspaper, reported yesterday that Mr Neo said he was intrigued by coffee-shop chatter over the City Harvest verdict. "I was feeling inspired. Using a mobile application, I wrote a new headline," he told the newspaper. "I'd only meant to put it on the Facebook group as a talking point, and did not have malicious intent. I didn't think it would be reposted."

Lianhe Wanbao editor Goh Sin Teck said on Monday that the paper handles news in a serious and responsible manner. "However, our news headline was spoofed by others," he added. "This is definitely not creativity and is a type of behaviour with malicious intent, attempting to mislead the public. It should be condemned."





















City Harvest case puts spotlight on procedural justice
By Elgin Toh, Insight Editor, The Straits Times, 6 Feb 2018

Many of us without legal training rely on nothing more than an instinctual sense of justice when reading about cases before the courts. If so, sitting in the parliamentary gallery yesterday may have brought cognitive strain, as the arguments made their way from the judicial branch of government to the legislative one.

The case that triggered debate involved City Harvest Church, whose leaders were convicted of criminal breach of trust (CBT). The question: Should they be sentenced under Section 406 of the Penal Code, which covers any person who commits the crime, or Section 409, which covers "agents"?

The difference matters, because the maximum sentence is seven years under the former, and life imprisonment under the latter.

For 40 years, the courts relied on a 1976 High Court decision defining directors as "agents" - making them liable to the aggravated charge. At least 16 decisions were based on this precedent.

Last year, this was overturned in the City Harvest case. The High Court, which heard appeals from the City Harvest defendants and the prosecution, decided that the law did not in fact say what people thought it had said for 40 years. The initial drafters of the law, the High Court said, did not mean "agents" to include directors.

The matter went to the Court of Appeal when the prosecution applied for a rarely invoked criminal reference, to seek a definitive interpretation of the law. The apex court upheld the High Court's interpretation last week.

As a result, an anomaly arose: Ordinary employees can be jailed for up to 15 years for CBT, but directors only up to seven years.



Explaining the case in a statement to the House yesterday, Law Minister K. Shanmugam called it a lacuna - a gap - in the law. He promised to propose changes in Parliament to remedy the situation.

Two awkward positions came about from last week's court ruling.

First, the appeals court itself agreed that there was no good policy reason to ignore the "heightened culpability" of directors. But the judges felt obliged to apply the law as they understood it. It was Parliament's job to amend the law, they argued.

Second, Mr Shanmugam then defended the court's right to make that ruling, which he did yesterday - even as he declared in no uncertain terms that "the Government believes that the sentences are too low".

But "whether we agree or disagree with (the ruling)", it must be respected. The sentences reflect what the law says, as interpreted by the courts. "The courts decide these matters," he added.

Some members of the public took to attacking the judges online, accusing them of letting off the rich, or of being lenient, perhaps because they were Christians.

Mr Shanmugam yesterday defended the judges against these attacks. He said: "Expressing one's unhappiness with court decisions is fine, but it should not sink to the level of abuse, insult and contempt... Judges should not be personally attacked, their integrity impugned, just because people do not agree with their decision."



To add to the peculiar nature of the case, a separate controversy brewed online over the identity of one of the defence lawyers.

People's Action Party MP Edwin Tong, a lawyer, acted for one of the accused - City Harvest founder-pastor Kong Hee. Mr Tong was harshly criticised by a segment of netizens. Some implied, without basis, that Kong got off lightly because a PAP MP defended him.

Mr Shanmugam also addressed this in the House, reminding that everyone had the right to a defence - "even a child rapist". He recalled how in 1995, he defended International Herald Tribune when it was sued for libel by then Prime Minister Goh Chok Tong , Deputy Prime Minister Lee Hsien Loong and Senior Minister Lee Kuan Yew.

"I thought the IHT had a right to counsel of its choice. They were faced, obviously, with particularly formidable plaintiffs who could get counsel of their choice," he said.

"Lawyers should not be made to feel that they will be hounded online, if they take up cases."

It may not have been easy for some to follow, let alone accept, the legal arguments made yesterday. Despite this (or perhaps because of this), it was important to hear Mr Shanmugam's explanations.

As the debate drew to a close, it was clear what was most curious about the case: Almost everyone thought the church leaders should be judged under heavier sentence limits - but they were not.

Society's intuition about right and wrong felt somewhat violated. Yet, if some in society insisted on getting their way, greater damage would have been done.

For the rule of law to function, the judiciary must interpret in good conscience the law as it stands, not the law that it wishes was there.

The Law Minister must then be prepared to defend the right of the courts to make such a ruling. Or else the country could descend into chaos, with the public taking potshots at the judiciary, and the judiciary possibly being cowed into making populist rulings.

Criminals, however heinous, must also have the right to the counsel they choose, and these counsel must be allowed to defend them without being harassed.

These are not mere technicalities. They are the very foundations of procedural justice, without which there can be no substantive justice.

Such principles may not sit well with all. It is just as well the public does not decide on such matters.

For if a mob had demanded its sense of natural justice in this case, it would have dealt a body blow to the rule of law - and, as a result, natural justice would not be done in many more cases.











 





### Former City Harvest Church leader Chew Eng Han arrested at sea while trying to flee Singapore
By Tan Tam Mei, Selina Lum, Law Correspondent, The Straits Times, 22 Feb 2018

In the latest twist to the City Harvest Church (CHC) saga, its former fund manager Chew Eng Han, 57, was nabbed at sea yesterday morning while trying to leave Singapore illegally by boat.

Chew was due to begin his jail term of three years and four months today for his role in the largest case of misuse of charitable funds in Singapore's history.

But he was arrested along with another man, Tan Poh Teck, at 8.47am on board a motorised sampan, said police. Tan, 53, was piloting the sampan that had picked Chew up from the main jetty on Pulau Ubin, north-east of mainland Singapore.

The duo were caught in Singapore waters after they were intercepted by three Police Coast Guard vessels about 2.4km eastwards of the jetty. Chew was found with about $5,000 in cash and fishing equipment.

The Straits Times understands that when questioned, Chew and Tan claimed they were fishing.

But based on earlier information received, the police established that the duo were trying to leave Singapore illegally for Malaysia. They were arrested for "attempting to leave Singapore unlawfully at unauthorised point of departure" under the Immigration Act.

Those found guilty of this offence can face a jail term of up to six months and a $2,000 fine.



Police also arrested Chew Eng Soon, 61, yesterday for abetting the offence. Both Chews are believed to be brothers. The trio were held in lock-up at the Police Cantonment Complex. Tan and the younger Chew will be charged today.

Five other CHC leaders - including founder-pastor Kong Hee - who were also convicted of misusing church funds, began serving their sentences last April. But Chew, who was out on $1 million bail, had secured multiple deferments.

After his jail term - which was reduced from six years by the High Court in April last year - was upheld by the Court of Appeal on Feb 1, Chew asked to defer his sentence until after Chinese New Year.















Sampan intercepted during a fishing trip that wasn't
No sign that ex-City Harvest leader was fishing, say police
By Tan Tam Mei and Selina Lum, Law Correspondent, The Straits Times, 22 Feb 2018

At about 8.30am yesterday, former City Harvest Church fund manager Chew Eng Han hopped onto a motorised sampan from the Pulau Ubin jetty.

In the boat was fishing equipment. Chew, who was in shorts, appeared dressed for a fishing trip - only he was not going on one, say the police. About 10 minutes into the journey out, when the sampan was about 2.4km from Ubin and still in Singapore waters, three Police Coast Guard boats intercepted it.

Chew, 57, was arrested along with the boat's pilot Tan Poh Teck, 53, for attempting to leave Singapore unlawfully at an unauthorised point of departure.


Chew's arrest came a day before he was due to surrender himself at the State Courts to start a jail term of three years and four months for his role in misusing church funds.

The Straits Times understands that the two men had initially told the police they were there fishing. Preliminary investigations showed that while the duo were dressed casually, there was no indication that they had been fishing.

Police said they had been trying to flee to Malaysia illegally from Pulau Ubin. Chew was also found with about $5,000 in cash, fishing equipment and three mobile phones. The sampan, which was seized, had two kayaks in it.



The Ubin jetty usually sees boats and sampans docking at the island that is north-east of mainland Singapore.

The Straits Times understands that Chew had travelled to the island by boat on his own before meeting the sampan operator, who does not ply the route between mainland Singapore and Ubin regularly.

A man understood to be Chew's brother, Chew Eng Soon, 61, was arrested yesterday afternoon for abetting his attempted escape.

In 2015, Chew Eng Han was convicted for his role in the seven-year City Harvest saga, alongside five other former church leaders, including founder-pastor Kong Hee.

Bail of $1 million was extended to Chew as he sought multiple deferments to fight the conviction.

Following a Court of Appeal hearing on Feb 1, he asked to serve his jail term after the Chinese New Year, which was granted.

Unlike in the United States and Britain, the act of absconding is not a separate criminal offence in Singapore, say lawyers. But when an accused person jumps bail, the bail money will be usually forfeited unless the bailor is able to convince the court otherwise.



At Chew's condominium home in Upper East Coast, his wife said she did not know what had happened and that the police had not contacted her. They have two children aged 27 and 17.

Chew was previously the church board's vice-president and treasurer. He was also a director of music production company Xtron Productions from 2003 to 2004.

The six CHC leaders had channelled $24 million from the church's building fund into Xtron and glass maker Firna in the form of sham bonds to fund the pop career of Kong's wife, Ms Ho Yeow Sun, in a church mission known as the Crossover Project. They then misused a further $26 million to cover up the misdeed.

Chew, a church member since 1995, cut ties with the church in 2013, later telling the court that one reason was that Kong "deceived the people closest to (him)".





 





Former City Harvest Church leader Chew Eng Han had been 'praying hard' to prepare for jail before failed escape bid
Chew had told media and supporter he was preparing for jail
By Melody Zaccheus, Heritage and Community Correspondent, The Straits Times, 22 Feb 2018

With three weeks to go to his prison term, former City Harvest Church (CHC) fund manager Chew Eng Han said he was going to "pray, pray, pray" to prepare himself for jail, adding that he was relieved the legal process was over.

In WhatsApp messages to The Straits Times on Feb 1, shortly after a court hearing that confirmed he would be imprisoned for three years and four months for misusing church funds, Chew, 57, insisted he was innocent and that the truth would prevail one day.

Chew said if he truly felt he was guilty, "it would be easier to serve the sentence". He added his family found it hard to accept the ruling.

"But there is nothing I can do about it, of course. If I did misappropriate money, I would see the sentence as a way of repenting," said Chew, who has two children aged 17 and 27.

The former CHC leader was once a Business Times journalist and later ran his own fund management business, which went belly up. He was first arrested in 2012 along with CHC founder Kong Hee.

The loyal CHC follower rose quickly through the church ranks and, with his wife, donated "hundreds of thousands" of dollars to a trust fund that comprised personal donations or "love gifts" from about 40 of Kong's closest supporters, from 2007 to 2009.

Chew left the church in 2013, partly because he felt Kong and his wife had misled a small group of donors who had been supporting the couple's livelihood.



In April last year, his request to be allowed to travel to Perth, Australia, to be with his wife and daughter was rejected. Chew is the only one of the six former CHC leaders who had not started his jail term.

Last July, his first attempt to refer 58 questions to the apex court was rejected and a second try to reopen his conviction was rejected by the Court of Appeal two months later.

Judge of Appeal Andrew Phang said the application was "plainly abusive", and Chew was essentially rehashing a point he had made in his previous application.

Chew was trying to delay his entry to prison and had been posting on Facebook right up till last Thursday - mainly about the subject of injustice.

Former CHC members and friends were stunned by news of his escape attempt yesterday, a day before he was to start his jail term.

Former church executive member Jean-Jacques Lavigne described Chew's actions as "silly". The businessman had testified as Chew's witness during the trial. Mr Lavigne said he saw Chew in the past few days, and he appeared "okay" and was "mentally preparing himself for jail".

Another former church member, who gave her name as Ms P.L., 53, said: "He probably feels justified doing this, but this doesn't take away from the fact that he is wrong."

Referring to his accomplices, she added: "He has now implicated more people."

Additional reporting by Tan Tam Mei and Selina Lum





Police did exceptionally well in Chew Eng Han's case, bail regime to be tightened: K. Shanmugam
By Aw Cheng Wei and Tan Tam Mei, The Straits Times, 23 Feb 2018

The police did "exceptionally well" in the case of former City Harvest Church leader Chew Eng Han, who allegedly tried to leave Singapore illegally, though it should not be the force's primary role to prevent people from jumping bail, said Law and Home Affairs Minister K. Shanmugam.

It is "too much of a burden" to expect the police to keep track of the "thousands of persons" on bail, monitor their day-to-day activities and ensure that they stay in Singapore, he told reporters yesterday.

"That is not the best use of police resources. Police should be focused on counter-terrorism and solving crimes," Mr Shanmugam said on a visit to the One-Stop Abuse Forensic Examination (OneSafe) Centre at Police Cantonment Complex.



Chew, 57, was arrested on Wednesday morning - a day before he was due to start his jail sentence for the misuse of church funds - for attempting to flee Singapore for Malaysia in a motorised sampan. He was on bail of $1 million when he was caught in waters off Pulau Ubin.

Adding that the matter of people jumping bail had been on his mind even before Chew's case, Mr Shanmugam said the bail regime will be changed to make it an offence to jump bail.

"It will come as a surprise to many that jumping bail is not in itself an offence. Because you have put up bail, and you lose your bail, but we are going to make that an offence," he added.



The proposed amendments to the Criminal Procedure Code and Evidence Act, which were announced last year and will be presented in Parliament next week, include tightening of provisions and criteria relating to bail. Electronic tagging to monitor those on bail is also being considered.

But a balance should be struck between allowing people to lead their lives outside - until their case is disposed of and a verdict is given - and preventing others from taking advantage of the bail system, said Mr Shanmugam.

Citing Chew's case, where he had expressed the desire to spend the Chinese New Year with his family before serving his sentence, the minister said it would seem "exceptionally harsh" for the prosecution to not have granted the request.

"But then there are people who will take advantage of that. I said to my people, the police did exceptionally well in this case.

"Like I said, there are thousands around," said Mr Shanmugam.
















Ex-City Harvest Church leader Chew Eng Han charged over alleged escape bid
Boatman charged with abetting attempted escape; prosecution applies for $1 million bail to be forfeited
By Elena Chong, Court Correspondent, The Straits Times, 23 Feb 2018

The day after he was caught allegedly trying to escape to Malaysia on a motorised boat, former City Harvest Church (CHC) leader Chew Eng Han found himself back in the dock, facing a charge of leaving Singapore unlawfully.

The former church fund manager, who was to have started his jail sentence of three years and four months yesterday for his role in the CHC saga, was arrested at 8.47am on Wednesday at sea off Pulau Ubin by the Police Coast Guard.



Boatman Tan Poh Teck, 53, was also charged yesterday with abetting Chew.

He had conveyed Chew on a motorised boat from Pulau Ubin Jetty - which is a not an authorised place of embarkation, departing point or point of departure - with the intention of taking him to Malaysia.


Deputy Public Prosecutor Tan Zhongshan said Chew and Tan each faced a holding charge under the Immigration Act. He asked that the duo be remanded at Central Police Division for investigation.


DPP Tan also applied for Chew's bail to be revoked, and a mention for the bailor to show cause as to why the bail sum should not be forfeited. He told District Judge Christopher Goh that the prosecution had written to the Court of Appeal for a fresh date for Chew to start his sentence.


Judge Goh did not make any order on the "show cause", but ordered the duo to be remanded with permission to take them out for investigations. He turned down the application of Chew's lawyer Jonathan Phipps for his client's wife to speak to her husband.


Chew, who was wearing glasses and clad in a blue polo shirt and dark shorts, was expressionless in the dock. Tan, in a grey T-shirt and shorts, had no lawyer.


Chew's wife, his two daughters and several others attended the court mention yesterday.


Mr Phipps later told reporters that he was briefed by Mrs Chew on Wednesday evening. He said Chew's family members learnt about his arrest from the media, and were quite upset about that.


The case will be mentioned on March 1.


If convicted, Chew faces a fine of up to $2,000 and/or a jail term of up to six months.


The maximum penalty for abetting in the offence is two years in jail and a $6,000 fine.




The duo were caught in Singapore waters after they were intercepted by three Police Coast Guard vessels about 2.4km east of the jetty. Chew was found with about $5,000 in cash and fishing equipment.

Three mobile phones were also seized.


The Straits Times understands that when questioned, Chew and Tan claimed they were fishing.


But based on earlier information received, the police established that the duo were trying to leave Singapore illegally for Malaysia.


Police also arrested Chew Eng Soon, 61, on Wednesday for abetting the offence. The two Chews are believed to be brothers.


Five other CHC leaders - including founder-pastor Kong Hee - who were also convicted of mis-using church funds, began serving their sentences last April. However, Chew, who was out on $1 million bail, had secured multiple deferments.


After his jail term - which was reduced from six years by the High Court in April last year - was upheld by the Court of Appeal on Feb 1, Chew had asked to defer his sentence until after Chinese New Year.





 







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