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Danson Cheong and Selina Lum
The Straits Times
11 April 2017
The dust is far from settled for the six City Harvest Church (CHC) leaders convicted of multimillion-dollar fraud, as the prosecution gears up for another battle in court.
The Attorney-General's Chambers (AGC) has now filed a criminal reference with the Court of Appeal, raising "questions of law of public interest" that had arisen with a High Court three-judge panel's ruling on the case.
The six involved and their lawyers appeared to be studying the latest development, with senior pastor Kong Hee, 52, saying through his lawyer Edwin Tong that he would look at the filing carefully before considering the next move.
Lawyers for former finance manager Serina Wee, 40, also said they were still reviewing documents submitted by the AGC.
Senior Counsel N. Sreenivasan, who represents deputy senior pastor Tan Ye Peng, 44, said last night that he had just received the AGC's documents and had not discussed them with his client, while lawyers for former finance committee member John Lam, 49, and former finance manager Sharon Tan, 41, had no comment.
Former CHC fund manager Chew Eng Han, 56, who is representing himself, told The Straits Times that the move by the AGC was predictable. "I don't think they will succeed," said Chew, who said he would raise a criminal reference of his own soon, without specifying what or when. Chew added that he agreed with the High Court's interpretation of the law in its ruling.
When contacted, CHC executive pastor Aries Zulkanain said: "We put all our trust in God, and we will do what we have been doing these seven years - we will pray."
Lawyers told The Straits Times it was appropriate that the AGC had filed a criminal reference.
Mr Eugene Thuraisingam said there is a question of law of public interest because of the conflicting decisions, not only in the Singapore High Court but also in the interpretation of the Indian equivalent, which is considered an authority.
In the 1976 case of Tay Choo Wah, which set the legal position in Singapore till now, the High Court considered two conflicting authorities, one related to India's penal code and the other to Ceylon's.
"My opinion is that the majority got it correct," he said.
Mr Shashi Nathan, a partner at Withers KhattarWong, said the question of which section of the law directors should be charged under for criminal breach of trust (CBT) is one that has to be resolved as it affects future prosecutions.
At the heart of the AGC's filing is the High Court's decision to reduce the charges of CBT which the six had been convicted of.
They had all been found guilty of CBT as agents under Section 409 of the Penal Code.
But the High Court ruled that the six church leaders are not considered agents under the provision - with two of the three judges ruling that "agent" connoted someone in a professional capacity - and reduced their offences to basic CBT, under Section 406, which carries lighter sentences.
The AGC is asking the Court of Appeal to decide on this point of law: whether a director or a member of the governing body of a company or organisation who is entrusted with or has dominion over property, can be construed as an agent.
The six CHC leaders were initially sentenced to jail terms of between eight years (for Kong) and 21 months (for Sharon Tan).
This was dramatically reduced by the High Court last Friday, to 3½ years for Kong and seven months for Tan.
Key questions in the case
Q What is a criminal reference?
A When questions of law of public interest have arisen in a criminal matter, after the High Court has decided on the appeal, either party can file a motion to refer these questions to the Court of Appeal. The procedure, known as a criminal reference, is provided for under Section 397 of the Criminal Procedure Code.
Q Who can file it?
A Both the prosecution as well as the accused person can file a criminal reference.
The public prosecutor does not need the permission of the Court of Appeal to do so, but accused persons need to seek permission. An application for permission must be made within one month of the High Court's decision.
Q What are questions of law of public interest?
A The question of law must be one that is of public interest and not just personally important to the parties alone.
Q What are the possible scenarios in the City Harvest case now that a criminal reference has been filed by the prosecution?
A If the Court of Appeal agrees with the High Court's interpretation of the law, then the High Court's decision last Friday will prevail.
If the Court of Appeal disagrees with the High Court's interpretation, there is a wide range of possibilities. It can give a definitive ruling on the questions of law without disturbing the convictions and sentences of the six City Harvest Church leaders.
The prosecution has, however, requested that the Court of Appeal reinstate the original convictions of the six church leaders. If the court agrees to the request, the six will find themselves back to the 2015 convictions on the more serious criminal breach of trust charge. However, the court has the discretion to sentence them.
Q Will a different set of judges be hearing the criminal reference?
A Yes. A different panel, from the other judges on the Supreme Court bench, will be convened to hear the criminal reference, and the decision will be binding.
Q What sort of timeframe are we looking at?
A Lawyer Shashi Nathan said it could be "months" before the Court of Appeal hears the case. He said the court may appoint an amicus curiae (Latin for friend of the court) to give an independent view as a third party.
Q Is there any recourse for the accused persons after the Court of Appeal rules on the criminal reference?
A The decision of the Court of Appeal in a criminal reference is final.
Q Can the accused persons wait for the Court of Appeal hearing to be over before they start serving their sentences?
A The accused persons can apply to the High Court for a stay on their sentences pending the outcome of the Court of Appeal decision, said lawyers.
Q How common are criminal reference cases in Singapore?
A Applications are "not uncommon" but it is rare for the court to grant permission to accused persons, said lawyer Eugene Thuraisingam.
Lawyer Tan Hee Joek said only rare cases can satisfy the criteria to refer to the Court of Appeal as they are meant to restrict such reference unless questions of law of public interest are involved.
In 2010, lawyer Bachoo Mohan Singh, who was convicted of helping a client dishonestly make a false claim before a court, succeeded in his criminal reference.
He was sentenced to three months' jail. At an appeal in the High Court, his conviction was upheld but his sentence was reduced to one month's jail and a $10,000 fine.
But he took his case all the way to the Court of Appeal, on the legal question of what exactly is a false claim, and how far a lawyer has to go to make sure that what his client tells him is true. Mr Singh was eventually acquitted.
In 2014, the prosecution filed criminal references in two unrelated cases of private-sector corruption. Former Ikea food and beverage manager Leng Kah Poh and former Seagate senior director of logistics Henry Teo Chu Ha were acquitted on appeal to the same High Court judge after he ruled that their actions did not amount to corruption.
After the Court of Appeal agreed with the prosecution that the High Court's interpretation of the law was wrong, it reinstated their original convictions.