Only S$15,710 out of the lawsuit claims made by the Pasir Ris-Punggol Town Council (PRPTC) and an independent panel acting on behalf of Aljunied-Hougang Town Council (AHTC) are recoverable out of the total S$33.7 mil, argued the defence team of Workers’ Party (WP) Members of Parliament (MPs) Sylvia Lim, Low Thia Khiang and Pritam Singh.
The defence team, led by Senior Counsel Chelva Retnam Rajah, also said in their final submissions on Tue (9 Apr) that contrary to claims made by the plaintiffs, which the latter had argued were for monies that were “misappropriated” or “unaccounted for” by the defendants, the plaintiffs’ claims only called into question the manner” in which the defendants managed the monies as AHTC’s town councillors.
The town councillors’ lawyers also noted that the plaintiffs had relied “solely on 2 reports from their respective accountants, KPMG and PwC”.
The lawyers also noted from the plaintiffs’ arguments that PRPTC had called KPMG an “expert witness”, while AHTC had called PwC its “factual witness”, which the defence had argued is an indication that the latter was “less certain of its position”.
Additionally, the defence lawyers highlighted that while a report by KPMG found that “the ‘detectable’ improper payments by AHTC to its then-managing agent FM Solutions and Services (FMSS) or solutions provider FM Solutions and Integrated Services (FMSI) amounts to not more than S$1,518,286”, the auditing firm’s report also concluded that “only $624,621 is recoverable”.
“The KPMG Report”, the defence team submitted, “does not define what ‘determinable’ means”, and added that KPMG’s executive director Owen Hawkes stated that “not determinable” refers to payments in which it is “not possible to determine what part of them could be labelled improper and ought to be recovered”.
“This suggests that for these payments, KPMG could not ascertain whether AHTC had suffered any loss,” the submission read.
Much of the “recoverable” amount of S$608,911 entailed project management fees paid to FMSS, which KPMG claimed to be improper, given that the fees were meant for “serious cyclical repairs and redecorations”.
The WP MPs’ lawyers, however, highlighted that KPMG did not conduct any on-site investigation to determine whether such a claim is substantiated “and failed to take into account the past practice of Aljunied Town Council”.
Mr Owen Hawkes also testified during the cross-examination that no checks were made by him and he relied solely on advice given to him to classify the projects as ones that should have been covered under the TC management fees instead.
“When it was still controlled by People’s Action Party (PAP) MPs, the town council had classified similar services rendered as project management fees”, added the lawyers.
The plaintiffs, alleged the defence team, were not aware of the losses or potential losses stemming from “control failures” in the remaining S$33.7mil in the former’s claim.
Only S$1,965 out of more than S$5.4mil flagged as improper use of TC monies was “determinable”.
This is in spite of the plaintiffs’ claim of S$2.79mil, which was paid to LST Architects as a result of AHTC’s decision to choose LST, the costlier option between two choices of architect firms.
Burden of proof still lies with the Plaintiffs to demonstrate that Town Councillors’ appointments and payments of FMSS/FMSI and third-party contractors have resulted in “loss and damages” to AHTC/AHPETC: Defence lawyers
Mr Rajah told the court on behalf of his clients that they had “acted in what we believe is in the best interest of AHTC”.
“We have to put FMSS on because we were going to be left without a willing managing agent. We wanted LST to be the architect because we believe they were the better and most appropriate architect,” he added.
The defence team argued: “Unless the Plaintiffs prove that the Town Councillors had caused the TC to act outside of its proper purposes in exercising its statutory powers and duties, the Court should not second guess the Town Councillors’ decisions and actions, even if the Plaintiffs may disagree with certain decisions or actions that were taken.
“Otherwise, the Court would inadvertently be enabling the Plaintiffs to circumvent the trite position in public law by commencing civil claims to seek private remedies against the Town Councillors instead of seeking public law remedies against the TC,” the team added.
Mr Rajah pointed out before Justice Kannan Ramesh that he has not observed “a single instance of people taking money wrongly and putting into their pockets” in his clients’ case.
Citing Section 52 of the Town Councils Act, which stipulates that no suit or legal proceedings shall be instituted against any member, officer or employee of a TC in a personal capacity for anything done “in good faith” as a part of the TC, Mr Rajah highlighted that acting in “good faith” is what his clients had been doing in their situation, which was attempting “to do their best out of a difficult situation”.
Mr Rajah’s legal team also pointed out in its submissions that “general immunity” ought to be granted to town councillors as a part of the s.52 “Good Faith” defence, as “[i]ndividuals would be unwilling to undertake the responsibility of being a town councillor if they can be held personally liable even where they acted honestly, reasonably, and with no knowledge that the acts in question were not authorised by law”.
Several other legal issues were raised in the defence team’s submissions, namely:
- That the Town Councillors’ liability falls under the scope of the Town Council Act or Town Council Financial Rules in addition to the Penal Code and other criminal statutory law, and not the common law;
- That the Town Councillors “are not fiduciaries and have not breached any fiduciary duties”;
- That the Plaintiffs’ claims have exceeded the six-year time bar under s.6 and s.22(2) of the Limitation Act;
- That the Plaintiffs’ are not entitled to equitable compensation;
- That the Plaintiffs’ are not entitled to an account and inquiry as they “are already in possession of all relevant accounts”; and
- That the Plaintiffs are not entitled to damages for alleged breaches of duties of care as the defendants, the Town Councillors in particular, have acted “in good faith”, and even if it is assumed that the Town Councillors have breached their duties of care, the onus is on the Plaintiffs to “prove that, subject to the doctrines of foreseeability, causation and remoteness” that AHTC/AHPETC has incurred losses and damages from the appointments and payments of FMSS/FMSI and third-party contractors.
Justice Ramesh announced his intention to deliver the verdict at an unspecified date once it is ready, one day after the hearing for the lawyers’ closing submissions was held.