Judge gives go-ahead for further seizure of documents from Baker Tilly’s office.
No substantive reason was given for the destruction of the papers in relation to the 2003 Baker Tilly special audit of CHC’s accounts, the court heard this afternoon after lunch.
Defense lawyer for Kong Hee, Edwin Tong, had earlier asked witness Foong Ai Fang if she was on the audit team for the 2003 special audit of CHC’s accounts—the one that her brother Foong Daw Ching had claimed to be the lead partner of.
She said she couldn’t remember.
In order to help “jog her memory,” Tong had requested for the seizure of the special audit records which has not been seized by the CAD when they were conducting their investigations. But the court was informed by the prosecution that the papers regarding the special audit have since been destroyed.
However, the witness had no difficulty providing audit papers dated 2002 and 2003 to Sharon Tan when Tan had requested for those in 2011, an email showed.
Had they not been destroyed, those papers pertaining to that special audit might have been helpful to the court in light of seemingly inconsistent evidence from the four Baker Tilly audit personnel. On one hand, the court has seen evidence that Foong Daw Ching had held himself to be the “consultant partner” to whom the CHC leaders would approach regularly for advice on audit matters.
On the other hand, all the other three Baker Tilly witnesses have claimed that they had no knowledge of Foong Daw Ching advising CHC on its audit matters, that he was not involved in CHC’s audits, and that they knew of no such role as “consultant partner” in Baker Tilly.
Correspondingly, email evidence produced by Andre Maniam, Serina Wee’s lawyer, showed that Foong had copied her brother in numerous emails pertaining to CHC’s audit matters, despite her claims yesterday that she has never consulted him on audit issues concerning CHC.
Upon Maniam’s suggestion that she was doing so because her brother was, in fact, involved in CHC’s audit, she admitted that it was possible.
Another piece of evidence Tong requested to be seized and produced in court was the 2009 Xtron audit working papers. Defense had previously requested for it but was rejected by the prosecution on grounds that there was no legal basis to do so.
Today in court, Tong explained that the document was “clearly relevant” because it would show that a lot of information and documents were given freely and voluntarily by CHC to the auditors, contrary to what the prosecution claims.
Asked why he had not requested for the documents earlier when Sim Guan Seng was on the stand—since he was the engagement partner at the time—Tong answered that it was only after CAD investigation officer Kevin Han’s testimony last week that the defense realized not all relevant documents had been seized.
His request was subsequently approved by chief district judge See Kee Oon, and the court expects to see the documents on Monday.
Earlier in the day, Tong had cited the case of the Muhammed bin Kadar vs Public Prosecutor (2011)* (see box story) and reminded the court of the prosecution’s obligation regarding documents that may be useful to the defense.
Before court adjourned for the day, Maniam also presented a series of emails between Foong Ai Fang and various staff members of CHC, which showed that from as far back as 2003, Foong had full knowledge of the internal workings of CHC and other parties including Xtron and Attributes.
Not only had she been deeply involved in working out issues for her clients such as their concerns about related party transactions, she had found them forthcoming and co-operative with all her audit queries.
Court resumes on Monday at 9.30am.
*Extract from Muhammad bin Kadar v PP  3 SLR 1205 paragraph 113*
Scope of the Prosecution’s duty of disclosure under the common law in Singapore
113 In our view, it is not necessary, for present purposes, for us to attempt a comprehensive statement of what the law of Singapore should be in this area. There is still ample scope for the development of the fine details in subsequent cases or by legislative intervention. It suffices for us to say that we agree with the Prosecution that the duty of disclosure certainly does not cover all unused material or even all evidence inconsistent with the Prosecution’s case. However, the Prosecution must disclose to the Defence material which takes the form of:
(a) any unused material that is likely to be admissible and that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused; and
(b) any unused material that is likely to be inadmissible, but would provide a real (not fanciful) chance of pursuing a line of inquiry that leads to material that is likely to be admissible and that might reasonably be regarded as credible and relevant to the guilt or innocence of the accused.
This will not include material which is neutral or adverse to the accused – it only includes material that tends to undermine the Prosecution’s case or strengthen the Defence’s case. To ensure congruence with the statutory scheme for disclosure this material should initially be disclosed no later than seven days before the date fixed for the committal hearing for High Court trials or two weeks from the CCDC for Subordinate Court trials (corresponding to the timelines in ss 176(3)(b) and 161(2) of the CPC 2010 respectively). Where under s 159 of the CPC 2010 the statutory criminal case disclosure procedures do not apply, the common law disclosure described here should take place at the latest before the trial begins. The obligation of disclosure (as the Prosecution has correctly acknowledged in its further submissions) is a continuing one and only ends when the case has been completely disposed of, including any appeal. Throughout this period, the Prosecution is obliged to continuously evaluate undisclosed material in its possession to see if it ought to be the subject of further disclosure.