SINGAPORE - A five-judge Court of Appeal on Thursday (Feb 1) dismissed a bid by prosecutors to reinstate the original convictions for City Harvest Church (CHC) founder Kong Hee and five others convicted of misusing millions in church funds - ending a marathon case involving the misuse of millions of dollars of CHC funds.
The current sentences will remain.
Here is what you need to know about the case:
1. Who is involved?
The six are CHC founder and senior pastor Kong Hee, 53; deputy senior pastor Tan Ye Peng, 45; former finance managers Serina Wee, 41, and Sharon Tan, 42; former fund manager Chew Eng Han, 57, and former finance committee member John Lam, 50.
2. What are their current jail terms?
City Harvest Church founder Kong Hee (centre) arriving at the State Courts to surrender himself and begin his 3½-year jail term on April 21, 2017. PHOTO: ST FILE
Kong is currently serving 3½ years' jail, the longest sentence of the six. Tan Ye Peng got three years and two months; Wee, 2½ years; and Lam, 1½ years.
They began serving their sentences on April 21 last year.
Chew faces a jail term of three years and four months. His sentence will begin on Feb 22.
Sharon Tan has completed her seven-month jail term.
3. What did the six do?
The Court of Appeal handed down its final verdict on the City Harvest Church case, involving (clockwise, from top left) Kong Hee, Tan Ye Peng, Serina Wee, John Lam, Chew Eng Han and Sharon Tan, on Feb 1, 2018. PHOTOS: ST FILE
They misappropriated $24 million in CHC's building funds through sham bond investments in music production firm Xtron and glass maker Firna.
They then misused a further $26 million to cover up the initial crime.
These bonds were used to fund the Crossover Project, a church mission to spread the Gospel through the secular music career of Kong's wife, pop singer Ho Yeow Sun.
4. What were their original convictions and sentences?
The six were originally charged and convicted 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.
5. Was there an appeal, and what was the outcome?
A queue of about 80 people waiting outside the Supreme Court to attend the hearing on Aug 1, 2017. PHOTO: ST FILE
The six appealed against their convictions and sentences, while the prosecution appealed for harsher sentences.
The prosecution had appealed for sentences ranging from five to 12 years for the six.
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 of the Penal Code.
As a result, their jail terms were cut to between seven months and 3½ years.
6. What happened after the appeal?
From left: Chew Eng Han, Tan Ye Peng, Kong Hee, John Lam and Serina Wee. ST ILLUSTRATION: CEL GULAPA
The prosecution then applied for a rarely invoked criminal reference, to seek a definitive ruling from the Court of Appeal as well as to reinstate the original convictions.
The prosecution was led by Deputy Attorney-General Hri Kumar Nair in the hearing in August last year. The Court of Appeal had reserved judgment.
7. Who is on the five-judge panel for the criminal reference?
Related Story 'Appropriate' revisions to Penal Code to be made following dismissal of appeal in CHC case
The panel includes Judges of Appeal Andrew Phang and Judith Prakash, and Justices Belinda Ang, Quentin Loh and Chua Lee Ming.
8. What is the impact of 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 CBT under Section 409.
This means that the apex court has now ruled that company directors, as well as governing board members or key officers of charities and officers of societies, who commit CBT are only liable to be punished under Section 406.
The offence carries a maximum sentence of seven years' imprisonment.
In contrast, those who commit CBT under Section 409 may face up to 15 years' jail.
In response to the Court of Appeal's decision, 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".
9. Is this the end of the saga?
Former CHC finance manager Sharon Tan walking out of the Supreme Court with her lawyer Paul Seah after the final verdict. ST PHOTO: LIM YAOHUI
Yes. The decision of the court on Thursday is final and brings the long-running case to a close.
Home Affairs and Law Minister K. Shanmugam said on Thursday that the Court of Appeal ruling is a serious matter and will make a ministerial statement on the Government's position in Parliament.
Criminal investigations into the case began in 2010.
The trial stretched over 142 days, from its start in 2013 to sentencing in November 2015. It is one of the longest criminal cases in history, beaten only by a drug trafficking case in the 1990s that went on for 168 days.
The case is also likely to be the costliest criminal trial here, with legal fees for the six church leaders possibly exceeding $10 million, lawyers had said.
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.
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 - City Harvest Church (CHC) founder Kong Hee is relieved at the court's decision and looking forward to finishing his jail sentence while his singer-wife Ho Yeow Sun is grateful to God and thankful to everyone who has "loved us in spite of everything".
Senior Counsel Edwin Tong, Kong's lawyer, said he spoke with the megachurch founder shortly before the start of the hearing on Thursday (Feb 1).
"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 his lawyer that he was relieved and now focused on finishing the remainder of his sentence and "getting on with his life", said Mr Tong.
When contacted later, Ms Ho, who goes by her stage name Sun Ho and was not in court, 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 that has journeyed with us and prayed for us and loved us in spite of everything," she added.
Similarly, relief replaced fears for many church members, families and friends of the six former CHC leaders after a five-judge Court of Appeal dismissed a bid by prosecutors to reinstate their original convictions.
Kong, 53; deputy senior pastor Tan Ye Peng, 45; former finance manager Serina Wee, 41; and former finance committee member John Lam, 50, began serving their existing and reduced jail terms of between 1½ and 3½ years from April last year.
The former leaders had misappropriated $24 million in CHC's 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 - known as the Crossover Project - to spread the Gospel through Ms Ho's secular music career.
Former finance manager Sharon Tan, 42, has completed her seven-month jail term.
Chew has been out on bail pending the court's decision and was allowed his request to start serving his sentence of three years and four months on Feb 22, after the Chinese New Year holiday.
Lawyer Nicholas Narayanan, who acts for Lam, said his client was "very relieved that there's finally closure of the longstanding case".
Mr Narayanan said he has written to prison authorities to ask that Lam, who was given a 1½ 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 will have to observe a strict curfew.
In the dock, Lam and Wee exchanged looks and smiled slightly upon hearing the verdict. Kong and Tan did not display any emotion.
Ms Sharon Tan, who will not need to go back behind bars, was teary-eyed and hugged supporters as she left the courtroom, and was all-smiles as she left the Supreme Court.
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.
In a statement published on the CHC website on Thursday, executive pastors Aries Zulkarnain and Bobby Chaw said the verdict allows the remaining five to continue serving their sentences with more certainty.
"We thank God for His mercy and kindness for sustaining us through these seven years and bringing this to an end. We thank you, Church, for continuing in prayer all these years and for your faithfulness and support," they added.
- Additional reporting by Tan Tam Mei
In a 152-page judgment, the Court of Appeal explains why it ruled in favour of the six former City Harvest Church leaders, upholding their current convictions and reduced jail sentences.
Below are the five highlights of the decision.
1. Agent or not agent?
The Court of Appeal ruled that 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 only 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 to almost two centuries, that an "agent" under Section 409 must be an individual who is in the business of providing agency services.
The court rejected the prosecution's definition based on the law of agency in commercial law, that an agent refers to someone who is authorised to act on behalf of another person.
2. Ruling's ramifications
The ruling has wider implications beyond the City Harvest case.
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.
3. Parliament to fill gap
The court said the gap in the law should be remedied by Parliament.
The court acknowledged that 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.
However, a "strained application of interpretative principles" by the courts would only represent "a proverbial papering over of part of the conceptual cracks and shortcomings in Section 409 that have accrued over the last century and a half, and which continue to widen as socio-economic conditions evolve".
The courts are ill-suited to undertake a "long overdue" and wide-ranging policy review of the various classes of persons who deserve more or less punishment for committing CBT in the 21st century.
4. 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 the more serious form of CBT as agents, under Section 409 of the Penal Code, and instead found guilty of simple CBT under Section 406.
5. 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.
Only questions of law of public interest can be referred to the Court of Appeal in cases where the High Court has already heard an appeal.
Generally, when a legal question has been considered and answered by a three-judge panel, it is considered to have been settled and is therefore no longer of "public interest".
However, the Court of Appeal found that even though the City Harvest case had been decided by a three-judge High Court, the circumstances were "sufficiently exceptional" to justify the Court of Appeal hearing it to make an authoritative determination.
This was on the principal basis that there were two High Court decisions that adopted diametrically opposite positions on the issue - the 1970s judgment and the one in April last year.
The "particularly vexing nature" of the point of law was amplified by the fact that High Court panel hearing the City Harvest case in April last year was split on the result.
