by Vincent Low
Speaking in Parliament on Monday (5 Feb), Home Affairs and Law Minister Shanmugam said that the City Harvest Church (CHC) sentences are too low, and will move to ensure legislation provides for higher penalties for senior officers who commit criminal breaches of trust (CBT).
The reason to change the law is because last week, the Court of Appeal has upheld a ruling made by the High Court last year that Section 409 of the Penal Code, which provides for heavier punishments for certain classes of people who commit CBT, cannot be applied to Kong Hee and the five other CHC leaders, who misused millions of church funds.
There are actually different categories of CBT defined in the Penal Code:
Section 409: Committed by a public servant, banker, merchant, broker, factor, attorney or agent – life imprisonment, or imprisonment of up to 20 years, and a fine.
Section 408: Committed by a clerk or servant – imprisonment of up to 15 years, and a fine.
Section 407: Committed by carrier, wharfinger or warehouse-keeper – imprisonment of up to 15 years, and a fine.
Section 406: Committed by a person who does not fall under any of the above – imprisonment of up to 7 years, or a fine, or both.
Court of Appeal says gap in law should be remedied by Parliament
Kong Hee and the 5 were charged under section 409 originally like all other senior officers or directors of companies in the past 40 years, following a 1976 High Court decision that company directors are liable for aggravated liability under this section.
Then last year, the lawyers for Kong Hee and his compatriots appealed to High Court arguing that the CHC leaders cannot be considered as “professional agents” defined under section 409. The High Court agreed. Prosecution later appealed but the 5 judges in the Court of Appeal upheld the High Court’s decision.
In pronouncing its judgment, the Court of Appeal stated that a “wide-ranging policy review” of the legislative provisions on CBT was “essential” and “long overdue”, and that this was a matter for Parliament to decide. Judge of Appeal Andrew Phang, in reading the decision, had also said that if there is any gap in the law, the shaping of the remedy should be left to Parliament.
Because of this new ruling from the country’s highest court, the Court of Appeal, all company directors, as well as governing board members or senior officers of organizations, who commit CBT are now only liable to be punished under Section 406, which provides for a lighter imprisonment of only up to 7 years. In contrast, employees of a company who commit CBT are still liable for up to 15 years’ imprisonment under section 408.
Hence, Kong Hee and the 5 were convicted under “less severe” section 406 and not 409, with the latest ruling from Court of Appeal.
Law to be changed
As such, the law will be changed and updated, said the Law Minister.
“The Government’s policy is clear: If you are a senior officer, director in the organisation, you are in a position of greater trust. You have considerable authority to make decisions in relation to the organisation’s assets. If you abuse that trust, you should be more culpable, and you should be liable for more severe punishments, compared with an ordinary employee,” said Mr Shanmugam.
“That’s really common sense and there can be no question about that.”
He added, “It is now up to Parliament to amend the law,” he added.
“And that we should do, soon. We hope to make the amendment together with the other wide-ranging amendments to the Penal Code.”
Why didn’t MP as well as Kong’s lawyer Edwin Tong tell Parliament about gap in law?
MP Edwin Tong is one of the part-time MPs representing Marine Parade GRC. He is a Senior Counsel and works as a partner in law firm Allen & Gledhill LLP. He represented Kong Hee as Kong’s lawyer during the marathon CHC trial, which lasted for many years.
More importantly, Mr Tong is also the Deputy Chairman of the Government Parliamentary Committee (GPC) for Law and Home Affairs since 2011. Mooted by then PM Goh Chok Tong in 1987, GPCs are set up to scrutinise the legislation and programmes of the various Ministries. They also serve as an additional channel of feedback on government policies.
Hence, for matters pertaining to the law, given his expertise as a Senior Counsel, he is supposed to feedback to Parliament as well as the Law Ministry if any of our laws are antiquated.
Since Mr Tong appealed on behalf of Kong Hee and argued in High Court that Kong should not be charged under the “more severe” section 409 of Penal Code as Kong is not considered a “professional agent” working in CHC, Mr Tong would have known then that there is a gap in the law governing CBT.
So, the million dollar question is, why didn’t Mr Tong make known to Parliament that section 409 of Penal Code needs to be updated so that it can specifically be used to severely charge any company directors or senior officers in any organizations who have committed CBT?
This way, errant directors and senior officers will be guaranteed to receive a much higher sentence than ordinary staff who commit CBT in the company or organization.
Is there a conflict of interest for Mr Tong to wear two hats – that of GPC Deputy Chairman for Law and Home Affairs and lawyer defending a suspect?
What do you think?