In appealing for a full acquittal, Sharon Tan’s lawyer argued that her behavior was simply incongruent with that of one intending to cause harm to the church.
Yesterday afternoon (Sep 16), defense lawyer for City Harvest Church’s former finance manager Sharon Tan, Paul Seah, pointed out two findings from the trial judge’s conviction that were “fatal” to the prosecution’s case.
Tan has been found guilty of three charges of criminal breach of trust and four charges of falsifying accounts.
Seah told the court that the trial judge had made two findings that were “fatal” to the prosecution’s case. One, he echoed the argument made yesterday by senior counsel Edwin Tong, lawyer for Kong Hee, that in order for a criminal charge to stick, the prosecution has to present evidence of dishonesty, that is, an intention to cause wrongful loss.
Two, Seah showed, the trial judge himself had said of the six in his judgment that he had no doubt that the appellants loved CHC and had no wish to cause any harm to it. In addition, the judge noted that they had acted in what they considered to be in the best interest of CHC.
This must thus lead to an acquittal of the charges of criminal breach of trust, said Seah.
One key difference between Tan and the other five appellants was that she had never been a board member nor held any key leadership role in the church, Seah pointed out.
Stating that her mindset was that of a church staffer who was acting on instructions from the board, handling matters that had been approved by the church’s lawyers and auditors, Seah revisited evidence that supported his point.
This sort of behavior simply did not gel with the inference that she had a criminal intent, he said.
He also said that the trial judge had “missed the forest for the trees” by finding Tan guilty because then, she would have been in the know about CHC’s control over Xtron and yet did not tell the auditors.
Seah put forth several points: firstly, in the commercial world, full control of one entity by another does not automatically render a transaction void.
Secondly, his client did not know the full extent of CHC’s control over Xtron.
Third, he questioned, why would the members of a criminal conspiracy go to the policemen and auditors and tell them almost the whole plan to commit a crime?
“It must be some sort of criminal mastermind or play-game theory to say if we tell them 99 percent and we leave out 1 percent, if and when we get caught, we have a paper trail. But your Honours have seen the documents. That was not the case. These were not people going around to set up a paper trail,” Seah said.
Besides the issue of dishonesty, Seah also addressed the bond redemption charges against his client by highlighting the element of dominion over payment of funds out of CHC.
In the church’s policy book, any payment by CHC required three authorized signatories—none of whom were charged.
“I say the trial judge did not make a finding there was de facto control, because there wasn’t. On this count alone, and I know it is difficult sometimes if a court seizes itself of the fact and thinks that there might be guilt, to let people go off on a technical ground. It is difficult.”
“But on the law—and I only can stand here as an officer of the court, having brought your Honours through the historical documents, having gone through the authorities and the facts— there is no dominion. The charge is defective,” argued Seah.
He also took the court through audit paperwork that showed his client acting according to the auditors’ recommendations.
Earlier in the day, the church’s former fund manager Chew Eng Han made his own appeal against the trial judge’s ruling of misappropriation of funds.
The trial judge had cited preceding cases and equated misappropriation with dishonesty in his ruling. Chew told the judges that as a layman, he could not see how what he had done was criminal when he read the statute. Going to lengths to explain what he understands to be dishonesty, he equaled it to theft which he said happens when a person intends to keep a property which lawfully belongs to someone else.
Chew said that even if the six had used the building fund for an unauthorized purpose, it was for the mission of the church and not for their personal enjoyment. His understanding as a lay person is that this type of wrongful use should not be a crime.
Chew also told the court that the element of faith is very important to the church and his faith in the Crossover Project was not “extravagant” and “wilful” as the trial judge had said. He explained that his mindset had always been that Sun Ho’s music career was not for the benefit of herself or her husband Kong Hee, but for the purpose of the church.
At this point, Chew was asked what would have happened if Ho succeeded and decided to keep the profit. Chew defended his belief by stating that Ho had donated all her royalties to humanitarian work.
With regards to the “round-tripping” charges, Chew said the transactions were done to solve unforeseen issues that arised and not, as the trial judge had said, to cover tracks.
He argued that the advance rental given to Xtron to offset the Xtron bonds were also from the Building Fund, and the auditors could see that in the books therefore “no tracks were covered”. Chew told the court that he had asked former accountant Sharon Tan to check with the auditor Sim Guan Seng if using advance rentals to offset the Xtron bonds was acceptable, and Sim had agreed.
The court asked if he was saying there was no track to be covered and Chew said yes.
Court resumes Monday, Sep 19.