SINGAPORE - In the final legal chapter of the City Harvest Church (CHC) saga, a five-judge Court of Appeal on Thursday (Feb 1) dismissed a bid by prosecutors to reinstate the original convictions for church founder Kong Hee and five others convicted of misusing millions in church funds, which would have meant longer jail terms for them.
The decision meant that 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 serving out their existing and reduced jail terms of between 1½ and 3½ years which began in April last year.
Former finance manager Sharon Tan, 42, has completed her seven-month jail term.
Former fund manager Chew Eng Han, 57, facing a jail term of three years and four months, has been out on bail pending the court's decision.
He was allowed his request to start serving his sentence on Feb 22, after the Chinese New Year holiday.
The decision, which hinged on the interpretation of provisions in the Penal Code governing criminal breach of trust offences, has wider implications for future misappropriation cases.
Judge of Appeal Andrew Phang, in reading the decision, said that if there is any gap in the law, the shaping of the remedy should be left to Parliament.
"A hard case should not be allowed to make bad law," he said, noting that the accused are still serving substantial jail terms. The other judges included Judge of Appeal Judith Prakash, and Justices Belinda Ang, Quentin Loh and Chua Lee Ming.
The court said a review of the law was “not only essential” but also “long overdue”.
In a statement on Thursday afternoon, the Attorney-General’s Chambers said that 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".
(From left) Chew Eng Han, Tan Ye Peng, Kong Hee, John Lam and Serina Wee. ST ILLUSTRATION: CEL GULAPA
The prosecution had raised the point of law to the apex court in August last year, in a rarely invoked procedure known as a criminal reference.
The prosecution argued that the City Harvest six ought to have been convicted of the more aggravated charge of CBT as agents, which provides for heavier punishment, rather than plain CBT.
CoA upholds High Court's decision that the 6 leaders of CHC charged for having conspired to commit the aggravated offence of CBT as agent cannot be convicted of that offence. Read case summary https://t.co/yOUPj7u4Od — Supreme Court Singapore (@SupremeCourtSG) February 1, 2018
The six were originally charged and convicted - after a marathon 142-day trial that started in 2013 - of CBT as agents, under Section 409 of the Penal Code.
They were handed jail terms ranging from 21 months to eight years in November 2015.
The six appealed against their convictions and sentences, while the prosecution appealed for harsher sentences.
Related Story City Harvest case: Recap of a saga that dragged on for 7 years
Deciding on the appeals last April, the High Court, in a split 2-1 decision, cleared the six of CBT as agents and found them guilty of plain CBT under Section 406.
Two of the three judges on the panel ruled that Section 409 applies only to "professional agents"; and directors such as the CHC six cannot be considered "agents" under Section 409. This resulted in their sentences being reduced.
On Thursday, the five judges sitting on the Court of Appeal unanimously affirmed the High Court majority’s view.
In a 152-page written judgment, the Court of Appeal said there was a “coherent and well-established line of authority” going back almost two centuries that an “agent” under this provision must be someone who is in the business of providing agency services.
The court acknowledged that, in the modern context, where directors of companies and officers of charities and societies play key roles, “there does not appear to be a good policy reason to ignore their heightened culpability and the enhanced potential for harm were they to commit CBT”.
In the dock, Kong and Tan Ye Peng did not display any emotion on hearing the verdict. Lam and Wee exchanged looks, smiling slightly.
Ms Sharon 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".
"She is looking forward to being reunited with her family," he added.
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, husband of Serina Wee, said the family is happy that this saga is finally coming to a closure".
"Now I can tell the kids a date that mummy is coming home," he said.
Some church members came out teary-eyed while others embraced one another.
A 40-year-old female church member, who declined to be named, said: "We are really relieved and happy."
Earlier on Thursday, a queue to attend the final verdict of the City Harvest Church case in the apex court had started at 3.30am. By 7am, close to 60 people had joined the queue, despite many being told that all entry passes had been given out.
Ms Shirley Yeo, 76, a staff member at the church, joined the queue at 4.30am and was the 25th person in line.
"We are praying that this verdict will be favourable. The jail term is too harsh. God-willing, it should not be lengthened and they should be set free," she said.
She added that service in the church has been going on as usual and members have been praying consistently for their pastors.
Queue outside Supreme Court for the City Harvest Church case
Housewife Shirley Tan, 65, was visibly upset when she arrived at 6.15am and could not obtain a pass to enter as they had all already been given out.
She had turned up at the State Courts at 5.30am only to realise she was at the wrong location.
"I want to see Pastor Kong. I love him so much. City Harvest Church is my second home," she said.
SINGAPORE: The Court of Appeal has on Thursday (Feb 1) found in favour of City Harvest Church’s Kong Hee and five others, rejecting the prosecution’s bid to reinstate the original convictions and sentences of the six church leaders.
This means Kong, his former deputy Tan Ye Peng and senior members Chew Eng Han, John Lam, Serina Wee and Sharon Tan will continue to serve reduced jail terms of seven months to three and a half years, slashed from between 21 months and eight years.
Former finance manager Sharon Tan, 41, has completed her seven-month sentence and is now a free woman. Former fund manager Chew, 57, will begin serving his sentence of three years and four months on Feb 22.
“A HARD CASE SHOULD NOT BE ALLOWED TO MAKE BAD LAW”: APEX COURT
On Thursday, the Court of Appeal moved to uphold the High Court’s decision to convict the City Harvest six of less serious criminal breach of trust (CBT) charges.
Though Judge of Appeal Andrew Phang acknowledged the “lacuna,” or gap, in the law brought to light in this case, he said the five-judge Court of Appeal would not “paper over” it.
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“A hard case should not be allowed to make bad law,” Judge Phang said. “The shaping of a remedy should be left to Parliament,” he added, noting that “the separation of powers … is the bedrock of our Constitution”.
In a procedure known as a Criminal Reference, the prosecution had argued at a hearing last year that the original convictions of the City Harvest six ought to have been upheld.
The six were found guilty in 2015 of taking S$50 million from the church’s coffers to secretly bankroll the music career of Kong’s wife, singer Sun Ho.
They were convicted of the most serious form of CBT under section 409 of the Penal Code, reserved for public servants, bankers, merchants or agents and carrying a jail term of up to 20 years or life.
All six appealed. In a shock split decision in April last year, the High Court overturned the convictions, and opted instead to convict the six of the least serious form of CBT, which carries up to seven years’ jail.
The High Court’s split 2-1 decision hinged on the definition of the word “agent”. Kong and the others did not act as “professional agents,” so do not fall under the ambit of section 409, the court had said.
Though the High Court conceded their judgement was “intuitively unsatisfactory,” “we cannot ignore the wording of the law,” it said.
The apex court affirmed this decision on Thursday, ruling that the text of section 409 only encompasses “professional agents” engaged in commercial activities. Directors and societies and charities do not fall under the scope of section 409, Judge Phang said.
These are the consequences of “dated legislation,” the court said, urging Parliament to conduct a “wide-ranging policy review” that he said is long-overdue.
Still, it should be remembered that the six are not going away unpunished, Judge Phang added.
In August last year, Deputy Attorney-General Hri Kumar Nair had argued that if allowed to stand, the High Court’s “absurd” decision would mean that “high-ranking directors … are subject to less severe punishment than low-ranking employees”.
The Senior Counsel urged the apex court to come to other “possible, reasonable” interpretations of the law to remedy the situation.
Lawyers for the six had argued this gap in the law should be filled by legislation, as it is the job of Parliament – not the Court of Appeal – to construct laws.
In a statement on Thursday, lawyers for City Harvest Church said they were "very thankful for the outcome and relieved that this episode is finally over".
"This sense of certainty helps us as we continue to wait for the respective releases,” they said in a statement.
Additional reporting by Kamini Devadass.
SINGAPORE: The Attorney-General's Chambers (AGC) said it will work with the relevant ministries on "the appropriate revisions to the Penal Code" following the Apex court's decision on Thursday (Feb 1) to uphold the convictions and sentences of the City Harvest Church's six leaders.
This is 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, the AGC said in its response to the Court of Appeal's decision.
"In coming to this decision, the Court of Appeal overruled a 1976 High Court decision, which had held that company directors could be convicted for criminal breach of trust under section 409 of the Penal Code.
"That was the position consistently taken by the courts since 1976, until the High Court which heard the Magistrate’s Appeal for the present case departed (by a 2-1 majority) from the position in the 1976 High Court decision," the statement from the AGC said.
The AGC added that the Court of Appeal's ruling on the City Harvest case means that that "company directors, as well as governing board members or key officers of charities and officers of societies, who commit criminal breach of trust of company property are only liable to be punished under section 406 of the Penal Code (Criminal Breach of Trust simpliciter), which provides for a maximum sentence of 7 years’ imprisonment."
The AGC said: "In contrast, employees of a company who commit criminal breach of trust are liable for up to 15 years’ imprisonment."
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In Thursday morning's hearing, the Court of Appeal found in favour of City Harvest Church’s Kong Hee and five others, rejecting the prosecution’s bid to reinstate the original convictions and sentences of the six church leaders.
This means Kong, his former deputy Tan Ye Peng and senior members Chew Eng Han, John Lam, Serina Wee and Sharon Tan will continue to serve reduced jail terms of seven months to three and a half years, slashed from between 21 months and eight years.
During the hearing, Judge of Appeal Andrew Phang acknowledged the “lacuna,” or gap, in the law brought to light in this case, but he said the five-judge Court of Appeal would not “paper over” it.
“A hard case should not be allowed to make bad law,” Judge Phang said. “The shaping of a remedy should be left to Parliament,” he added.
