Recap Of City Harvest Appeal: Defense Seeks Full Acquittal For the Six; Prosecution Pushes Longer Jail Term
A look back at the key arguments in the City Harvest appeals last week.
The City Harvest case returned to the headlines the last two weeks with the hearing of appeals from both the prosecution and defense. This took place nearly a year after Chief District Judge See Kee Oon found the six parties guilty in November 2015 after a long-drawn trial that lasted over 140 days spread out over three years.
Kong Hee received a sentence of eight years in prison, while the other five, deputy senior pastor Tan Ye Peng, former finance managers Serina Wee and Sharon Tan, former church investment committee member John Lam and former fund manager Chew Eng Han were sentenced to between 21 months and six years of imprisonment.
The prosecution is appealing for longer terms of between five and 12 years, instead of the 21 months to eight years that has been meted out, while the defense is appealing for an overturn of the conviction as well as sentencing.
The appeals were heard over five days from Sep 15 to 21 at the Supreme Court before a three-judge panel comprising Judge of Appeal Chao Hick Tin, Justice Woo Bih Li and Justice Chan Seng Onn.
In supporting its argument for acquittal, the defense team highlighted the “unique features” of the case as found by Judge See Kee Oon:
“…the accused persons did not enjoy personal gain, nor was it at all in contemplation that they would enjoy personal gain,”
“CHC has not in fact ultimately suffered financial loss as the monies have been returned.”
“I would also note that the accused persons believed that they were working towards an objective that had the support of the church.”
This personal belief was one key point raised by Justice Chao, and hotly argued by both sides.
Lawyers for Kong Hee and Sharon Tan, Edwin Tong and Paul Seah, argued that the prosecution had failed to establish, beyond a reasonable doubt, evidence of mens rea, or a dishonest intent for wrongful gain or loss—a necessary element in charge for criminal breach of trust according to Singapore’s Penal Code.
As such, the charges for CBT, and correspondingly, the falsification charges, should be overturned.
The prosecution, on the other hand, reiterated its position that wrongful use equated to the desire to cause wrongful loss, a stance the trial judge had sided with despite noting that the six acted in what they considered to be in the best interest of CHC and that they meant no harm to it.
Justice Chao also questioned the prosecution’s position on the motive of the appellants. “…to constitute a crime honesty is an important element or ingredient…I suppose you have to ask the question: why would a person be doing that, if there is nothing there for him or her?” asked Chao.
The prosecution replied, “On the one hand, you can look at their purpose as having been altruistically trying to advance church objectives. But I would question how much of it is altruism and how much of it has to be ascribed to perhaps a personal sense of achievement or, to put it very simply, gaining brownie points from achieving something.”
This led to the defense rebutting the insinuation of personal gain, contrary to the prosecution’s initial position that there was no personal gain involved.
What the prosecution did maintain, was that the six parties were in a position to unilaterally decide the flow of the building fund monies toward a use for which it was unauthorized, never mind that the “use” in question was one that was supported wholly by the church board and its congregation.
The DPP questioned the basis for the broad support toward the Crossover Project with an analogy: “If I were to offer you a Ferrari and I tell you that it is free of charge, you might well take it because, why not, it’s free. If I tell you that I’m going to give you a Ferrari but use your money to pay for it, you may not be so supportive of the idea of my giving you a Ferrari.”
Another part of the prosecution’s case is that the six had never intended for the church to get its money back, hence its position that the Xtron and Firna bonds were sham investments.
Public criticism was reignited over the “extravagant” manner the six appellants had orchestrated to spend $24M of the church’s building fund on the Crossover Project.
To this, the defense has shown that at the end of the day, all of it was returned to the church, with interest—this could not have happened if the church had resorted to “cheaper” means of evangelizing such as buying TV or print advertisements, as hypothesized by Justice Chan at one point during the hearing.
In appealing for longer sentences, the prosecution cited the failure of the trial judge to consider relevant sentencing precedence and the failure of the judge to consider the necessity for deterrence.
Tan Ye Peng’s lawyer N. Sreenivasan appealed against the prosecution’s submission. “I ask your Honours to consider this. Tan Ye Peng, 11 to 12 years. Serina Wee, 11 to 12 years. Sharon Tan, 5 to 6 years. I can’t see where it comes from.”
Calling it a “very unique situation,” Sreenivasan sought to illustrate his point by referencing from the musical Les Misérables. “Victor Hugo chose to show the extremes: Inspector Javert on one hand and the bishop on the other. One shows extraordinary compassion and mercy which goes beyond what a court can show; the other shows the extreme view of the law that does not take into account the offender at all.”
He appealed to the judges to consider that for crimes without mandatory minimums—as opposed to the likes of extortion, robbery, drug offences and armed robbery—the court needs to go back to the fundamental principle of sentencing: what does the accused person deserve?
- City Harvest Trial: Appeal Begins
- City Harvest Appeal: Sharon Tan’s Lawyer Points Out “Fatal” Findings Of Trial Judgment
- City Harvest Appeal: Investments Genuine As Matter Of Both Fact And Intent, Says Defense
- City Harvest Appeal: Judges Challenge Prosecution’s “Control” Argument; Mens Rea Revisited
- City Harvest Church Trial: 21 Sep 2016 (Video)
by Theresa Tan