SINGAPORE: They were found guilty of misappropriating S$50 million of church funds – a record amount in Singapore’s legal history – but six City Harvest Church leaders saw their sentences reduced on Friday (Apr 7), in a twist to a long-running case that first went before the courts way back in mid-2013.
So why did the three-judge panel rule as it did?
In 2015, the six members – Kong Hee, Tan Ye Peng, Chew Eng Han, John Lam, Serina Wee and Sharon Tan – were convicted of the most aggravated form of Criminal Breach of Trust (CBT) under the Penal Code: CBT by public servant, or by banker, merchant, or agent.
Section 409 of the Penal Code states that:
Whoever, being in any manner entrusted with property, or with any dominion over property, in his capacity of a public servant, or in the way of his business as a banker, a merchant, a factor, a broker, an attorney or an agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 20 years, and shall also be liable to fine.
However the High Court, in a split decision, convicted Kong and his five accomplices of a reduced charge – the least aggravated form of CBT for which the punishment is up to seven years’ jail.
For a conviction under the aggravated CBT charge under section 409 of the Penal Code to stand, the elements of the offence must be made out:
1. The accused (namely, Kong Hee, Tan Ye Peng and John Lam) were entrusted with control over CHC’s funds.
2. This entrustment was in the way of Kong, Ye Peng and Lam’s business as agents.
3. Money from CHC’s funds were misappropriated for various unauthorised purposes as part of a conspiracy to misuse CHC’s funds.
4. The accused abetted each other by engaging in the above conspiracy to misuse CHC’s funds; and
5. The accused acted dishonestly in doing so.
Majority of the panel – Judge of Appeal Chao Hick Tin and Justice Woo Bih Li – decided the prosecution had not proved the second element of the offence.
Their decision largely came down to the wording of section 409, hinging on the definition of the word “agent” and whether Kong and the co-conspirators could be said to be “in the business” of agents.
The decision was also influenced by the judges’ interpretation of the law. They said an agent under section 409 must refer to “professional agents” as opposed to “casual agents”.
The wording of the law “(cannot) conceivably encompass a person (a casual agent) who has been appointed the treasurer of a society and by virtue of that appointment is holding onto the funds of the society”, the judges said.
Section 409 must refer to a “professional agent”, “one who professes to offer his agency services to the community at large and from which he makes his living”, they said. “It refers to a commercial activity done for profit.”
In coming to their decision, JA Chao and Justice Woo abandoned a precedent which has been applied in Singapore for the past 40 years, to draw this distinction: To fall under the scope of section 409, the agent must be “external” to the company or organisation that is entrusting the property to him.
Kong, Tan Ye Peng and Lam were directors of the CHC board, which were “internal” roles, the judges deemed.
“While a director undoubtedly holds an important position in a company or organisation, it cannot be said that a person by becoming a director has offered his services as an agent to the community at large and makes his living as an agent.”
JA Chao and Justice Woo acknowledged their decision would upset the state of affairs, but said: “This does not, however, mean that we can ignore the wording of the section.”
Between the most aggravated form of CBT (section 409) and least aggravated (section 406), there are another two sections covering other aggravated forms of CBT – sections 407 and 408 – for which the punishment is up to 15 years’ jail.
“We agree that it is intuitively unsatisfactory”, the judges said, that “(under sections 407 and 408), a clerk, servant, carrier or warehouse keeper would be liable for an aggravated offence. This does not, however, mean that we can ignore the wording of the section”. “If an interpretation of a statutory provision is erroneous … it must be corrected notwithstanding how entrenched it may have become.”
Justice Chan Seng Onn disagreed with the other judges.
The convictions of Chew, Ye Peng, Serina and Sharon for falsification of accounts were upheld.
