In a long interview with Channel News Asia, which was published today (‘Politics, the City Harvest Church saga and regaining the public’s trust: Senior Minister of State Edwin Tong goes On the Record‘, 1 Jul), City Harvest lawyer Edwin Tong, now Senior Minister of State for Law and Health, denied there was any conflict of interest on his part when he was the deputy chair of the Government Parliamentary Committee (GPC) for Home Affairs and Law while defending Kong Hee.
Earlier at the City Harvest trial, the Court of Appeal upheld the High Court’s verdict and ruled that Section 409 of the Penal Code, which provides for heavier punishments for certain classes of people who commit criminal breaches of trust (CBT), cannot be applied to Kong Hee and the 5 other CHC leaders. They have been convicted for misusing millions of dollars of church funds under a different section, resulting in getting lighter punishments.
It was Tong and his compatriots who successfully argued in High Court that the CHC leaders cannot be considered as “professional agents”, and as such cannot be charged under section 409, which allows for life imprisonment. Prosecution later appealed but the 5 judges in the Court of Appeal upheld the High Court’s decision. The Court of Appeal said such a gap in law should be remedied by Parliament.
On 5 Feb, Home Affairs and Law Minister Shanmugam told Parliament that the City Harvest Church (CHC) sentences are too low, and would move to ensure legislation provides for higher penalties for senior officers who commit CBT.
“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.”
The question then arose why didn’t Tong inform Parliament about such gap in law, since at the time of CHC trial, he was also the deputy chair of the GPC for Home Affairs and Law. GPCs are set up to scrutinise the legislation and programmes of the various Ministries.
Hence, for matters pertaining to the law, given his expertise as a Senior Counsel as well as partner in premier law firm Allen & Gledhill LLP, Tong is supposed to feedback to Parliament as well as the Law Ministry if any of our laws are antiquated. Since Tong successfully appealed on behalf of Kong 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 under CHC, Tong would have known then that there is a gap in the law governing CBT.
Netizens then start to question if there exists a conflict of interest for Tong, who was then wearing two hats – one as GPC Deputy Chair for Law and Home Affairs and the other a lawyer defending Kong.
No conflict of interest
In this regard, Tong told CNA, “Firstly, there’s a flaw in the law because the law was not changed from many years ago.”
“I was focused on what the legal provisions were. The legal provisions would require that the level of sentencing could not exceed a certain level. The charges had already been made by then. You can’t change legislation and apply it ex post facto. Whatever one might point out or not point out, the law as it stood at the time of the offenses were crystallised, would apply. So it would not have made a difference to my case.”
In other words, there was no conflict of interest in his case. But would he have been more likely to point out the gap in the law himself if he hadn’t been a defence lawyer handling the CHC case?
“I and all my colleagues saw the gap and we argued it early on. We pointed out that the provision the prosecution sought to use was inappropriate, that in fact, the right provision should have been the one several notches lower and that would necessarily mean that even if there was a conviction, the penalty could not exceed a certain level,” he said.
“That argument was premised on showing that there was a gap. It was an argument that was dismissed (by Subordinate Court), partly because there was a High Court judgment that the Subordinate Court felt that they were bound by and so we accepted it.”
Tong continued, “I am fortunate in being able to separate moral dilemma from professional responsibility quite well. The fact that I seldom taken on criminal cases probably makes that easier.”
Still, he decided to take on Kong’s criminal case, which together with the other CHC leaders, their trials went on for close to 8 years starting in 2010, enabling their lawyers to earn millions of dollars.
“As a lawyer, I present the facts as they are instructed to me. I make the best of those facts using legal authority and arguments, and it is for the court to assess if there has been wrongdoing. I don’t start off knowing or presuming there is wrongdoing, but if I am being asked by the client to take a false position or suppress material, then I will not carry on,” Tong further explained himself.
“Are you suggesting a PAP MP who is also a doctor should not be treating a criminal?” – Edwin Tong
When asked if he thought his political standing might have dropped due to his role in defending Kong, he said, “I can’t discount it. I hope it will not but if it has, I just have to live with it, get on with it.”
“Beyond doing what I do as a lawyer with all the right safeguards, checks and balances in place and as long as you don’t compromise on your ethics as a lawyer, what are those higher standards? Are you suggesting that a PAP MP who is also a lawyer should not act for criminals? Or are you suggesting a PAP MP who is also a doctor should not be treating a criminal? What are those standards? Why do we draw that line artificially?” he countered.
But of course, he forgot to mention that in other countries like the UK, most of the MPs work full-time serving their constituents and would not have the luxury of working somewhere else as lawyers or doctors.
Tong has been a lawyer since 1995 and his areas of practice include corporate and commercial disputes, and international arbitration. It’s something he will miss as he steps down from his position as Senior Counsel at law firm Allen & Gledhill to take on the role of Senior Minister of State, he said.
“I’ve been used to being on my feet in court. I enjoy the cut and thrust of being in court and dealing with my clients. But at some stage there will always be some transition to be made and I’m looking forward to the challenge (to serve as Senior Minister of State).”