City Harvest case: AGC seeks clarity on High Court ruling
SINGAPORE — With an eye on seeking heavier punishments for six former City Harvest Church (CHC) leaders, the Public Prosecutor is asking the highest court of the land to address “questions of law of public interest” in the High Court’s landmark decision last Friday (April 7), which saw their jail sentences for criminal breach of trust slashed significantly.
Specifically, the Public Prosecutor wants to know through this process, called a Criminal Reference, whether a director or member of an organisation’s governing body who has been entrusted with property should not be considered as “an agent” under Section 409 of the Penal Code, as the High Court had found.
“If the Court of Appeal answers the questions referred in accordance with the Prosecution’s submissions, the Prosecution intends to request that the Court of Appeal ... reinstate the appellants’ original convictions under section 409 of the Penal Code and make necessary and consequential orders in relation to the sentences given,” the Attorney-General’s Chambers (AGC) said in a press release on Monday (April 10).
The AGC’s move came after Law and Home Affairs Minister K Shanmugam told reporters over the weekend that “the matter is not over yet”, and the Government was considering taking further steps following the High Court ruling. Stressing the need to uphold its “zero-tolerance approach” towards corruption, he added that the decision would have “serious implications” on future graft cases.
The High Court had ruled, in a split decision, that the church leaders should have been charged with plain criminal breach of trust (Section 406 of the Penal Code), which carries a lower maximum punishment.
Two of the three judges presiding over the case found that an “agent” under Section 409 must refer to “professional agents” — who offer their agency services as a “commercial activity” — which church founder Kong Hee and his five accomplices were not.
The third judge, however, felt that directors are subject to onerous fiduciary duties, and are in a position of trust “as much as or even more so than” agents like bankers, brokers and attorneys.
Under Section 406, the maximum penalty is imprisonment of seven years, or a fine, or both. Section 409 carries a harsher maximum sentence of 20 years and/or a fine.
After the sentencing, the court granted requests from Kong, his former second-in-command Tan Ye Peng, former church board member John Lam, former church investment manager Chew Eng Han, and former church finance manager Serina Wee to defer their sentences for two weeks so that they can celebrate Easter with their families. Ms Sharon Tan, who was also formerly the church’s finance manager, was granted two months deferment as her family is moving to the United States.
When contacted on Monday, Chew said he would request a stay of the sentence, pending the criminal reference. Lawyers representing Tan Ye Peng and Wee said they are still studying the options available to their clients. The other parties declined to comment.
FILING 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.