It appears that the trial for Kong Hee and gang may not be entirely over as the Attorney General’s Chambers (AGC) is considering if they should take the case to the Apex Court.
The 6 former church leaders from the City Harvest Church (CHC) were given ‘mega discounts‘ off their original jail sentences on Friday (7 Apr) after the High Court re-convicted them on a lesser CBT charge over their original aggravated CBT charge, which carries a maximum sentence of life imprisonment. [ LINK ]
Their new reduced jail sentences are:
- Kong Hee: From 8 years to 3 years and 6 months.
- Tan Ye Peng: From 5½ years’ to 3 years and 2 months.
- Chew Eng Han: From 6 years to 3 years and 4 months.
- Serina Wee Gek Yin : From 5 years to 2½ years.
- John Lam Leng Hung: From 3 years to 1½ years.
- Sharon Tan Shao Yuen: From 21 months to 7 months.
To take the case to the Apex Court, the AGC has 1 month to apply for leave and satisfy the Court (with certain exceptions) that there is a point of contention in law [ LINK ] and in this case, there appears to be.
Law Minister: The matter is not over yet
In an indication that the AGC is most likely going to take the case to the Apex Court, Law Minister K Shanmugam reportedly said on Saturday (8 Apr) that “The matter is not over yet”.
The AGC is considering whether it is possible to take further steps in the CHC case and once it is decided, AGC will make an announcement next week, said Mr Shanmugam.
According to the Law Minister, the AGC has long believed that the sentences given out earlier at a lower court should have been higher, including the eight-year sentence for church founder Kong Hee and the government agrees.
Now if you look at the background, AGC believed that the original sentence, say for example, 8 years for Pastor Kong Hee and the sentences for the others was too low, which is why they appealed. And they told us they were appealing, they told the government. and they gave their reasons to us, and the government believed that the original sentences….were too low as well.
Mr Shanmugam noted that the latest judgement may have serious implications on future cases.
This may have serious implications for other cases, including corruption cases, against directors. We will have to consider what steps to take, and I have asked AGC for advice.
Acknowledging that there are differing views on the judgement, Law Minister urges the public to refrain from abusing the judges.
I understand the public’s differing views on the judgement, but be careful against abusing the judges personally or suggesting improper or ulterior motives for judgements. The reasoning is there, they’ve set it out. People can agree or disagree and from the Government’s point of view, if we disagree, we can always consider doing something. If necessary, we can always legislate through Parliament.
I have asked Attorney-General Lucien Wong and his deputies, Mr Hri Kumar and Mr Lionel Yee, to look into this. It may take time, but we have good people at the top, and they should be able to deal with it.
An “agent” under Section 409
Judge of Appeal (JA) Chao Hick Tin had, during Friday’s delivery of judgement said that the original aggravated CBT should be substitute as Kong Hee and gang were not “professional agents” entrusted with CHC’s funds and therefore the aggravated CBT charges were inappropriate.
Basically, its all about the wording of Section 409, hinging on the definition of the word “agent” and whether Kong Hee and gang were “professional agents” as opposed to “casual agents”.
The 3-judge panel (1 dissenting) felt that Kong Hee and gang must be “professional agents” as opposed to “casual agents” for Section 409 to apply.
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”, the judges said. “It refers to a commercial activity done for profit.”
Therefore Kong Hee and gang could not be said to be “in the business” of agents, according to the judges.
Additionally, while substituting the original aggravated CBT with a lesser CBT charges, the judges had abandoned a 40-year-old precedent which has been applied for the past 40 years – that Section 409 of the Penal Code applies to directors. (Ref: PP vs Tay Choo Wah, 1976)
To fall under the scope of Section 409, the judges held that the agent must also be “external” to the company or organisation that is entrusting the property to him and Kong Hee and gang were directors of the CHC board, which were “internal” roles.
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.
Additionally, the relationship between a director who is entrusted with the property and the company, which is the one entrusting the property, is an internal one. This stands in stark contrast to the external nature of the relationship that an agent such as a banker, a merchant, a broker or an attorney shares with his customer who entrusts the property with him.
Plainly put, for a person to be liable under Section 409, he or she has to be a “professional agent” making a living by offering services to the community at large (public) and just being a director alone does not qualify the person as an “agent” – an important element to secure a conviction under Section 409.
Kong Hee and Gang out on bail
Meanwhile, Kong Hee and gang are out on bail after their application for deferment of their sentences were allowed by the High Court on Friday (7 Apr).
Disclaimer: TRE has no lawyer on its editorial team and the article is written to the best of the writer’s understanding of applicable laws. Please feel free to correct any factual inaccuracies or legal terms as needed.