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.
“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.