The 3-judge panel's decision on CHC appeal was not unanimous

It was 2-1 for the three-judge panel.

Martino Tan| April 07, 05:24 PM

We have all heard the news about the City Harvest Church appeal: The six City Harvest Church leaders are convicted but the High Court has reduced their jail sentences.

More about the details of their reduced jail sentences here:

[embed]http://mothership.sg/2017/04/all-6-city-harvest-church-leaders-get-reduced-sentences/[/embed]

What was perhaps overlooked in the online disillusionment and outrage about the reduced sentences for the CHC leaders is that the ruling was not unanimous.

The three-judge panel -- Judge of Appeal Chao Hick Tin and Justices Woo Bih Li and Chan Seng Onn -- voted 2-1 for parts of the judgement.

Two Justices allowed CHC leaders' appeals against the conviction and found them guilty of a less serious charge of criminal breach of trust (CBT).

This was revealed in Justice Chao's oral statement on this issue:

"Upon considering the arguments of the parties, this court has, by majority, decided to allow the appellants’ appeals against their conviction only to the limited extent that we reduce the respective CBT Charges against the appellants from those of CBT by a person in the way of his business as an agent under s 409 of the Penal Code to a charge of CBT simpliciter unders 406 of the Penal Code.

The other findings made by the Judge are upheld."

In fact, Justice Chao elaborated that Justice Chan would have upheld the previous decision of the more severe sentences for the CHC leaders:

"Justice Chan holds different views from Justice Woo and I on certain aspects of the appeal.

In the main, Justice Chan holds that the elements of s 409 of the Penal Code are satisfied on the facts of this case. On that basis, Justice Chan would dismiss the appeals against conviction and sentence and uphold the decision of the Judge".

For context:

This is s 406 of the Penal Code.

Screenshot from statutes.agc.gov.sg

This is s 409 of the Penal Code.

Screenshot from statutes.agc.gov.sg

However, Justice Chao, in the conclusion of his oral judgement, did mention that "Justice Chan would, on the whole, not be minded to disagree with the majority on the total sentence that should be imposed on each of the appellants on the basis of the reduced charges".

Justice Chan has expressed certain reservations about the mitigating factors to be taken into account. But he has also indicated that if he were wrong on the applicability of s 409 of the Penal Code to the facts of this case, he would, on the whole, not be minded to disagree with the majority on the total sentence that should be imposed on each of the appellants on the basis of the reduced charges.

This was what Justice Chan said in his concluding remarks under (dissenting) in the full judgement report:

"I note that the majority has more or less halved the overall sentences imposed by the Judge on Kong Hee, John Lam, Ye Peng, Eng Han and Serina.

In the case of Sharon, the majority has reduced her overall sentence to one-third of the original sentence.

Although I may not entirely share the views of the majority on the various mitigating factors and the weight to be placed on them, nevertheless on the whole, I do not think that the total sentence imposed by the majority on each of the appellants can be regarded as manifestly inadequate when the proper charges are under s 406 and not s 409.

Thus, if I were wrong that the CBT Charges should be framed under s 409 of the Penal Code, I would not be minded to disagree with the majority on the total sentence that they have imposed on each of the appellants on the basis of the reduced charges".

In his dissenting submission, Justice Chan had some sharp words on the intentions of the CHC leaders though:

"On appeal, the appellants (CHC leaders) strenuously advance the argument that they had never intended to cause CHC to suffer any financial loss and thus they were never dishonest. Instead, they submit that they had at all times acted in CHC’s best interests...

I reject the appellants’ argument on two levels.

In the first place, I agree with the Judge and the majority that the appropriate question is not whether the appellants intended to cause CHC financial loss, but whether the appellants knew that they were not legally authorised to use CHC’s funds in the manner which they did, even when there was in fact no intention to cause CHC financial loss, which I do not accept on the evidence.

On a more fundamental level, even if I do accept the appellants’ legal argument that a finding that they had never intended to cause CHC financial loss would lead to their acquittal on the CBT Charges, I wholly reject the appellants’ characterisation of their intention on the facts...

[I]n my view, it cannot be doubted that the appellants had intended to enter into transactions that were not to CHC’s financial advantage. In fact, those transactions were to CHC’s financial detriment and the appellants had intended to and did cause financial loss to CHC at the time the transactions were entered into by them on behalf of CHC".

 

Related articles:

Kong Hee issues statement post-appeal: ‘I am grateful that the sentence has been reduced’

Kong Hee could be out of jail in 2 years 4 months due to S’pore’s two-third remission system

3 High Court judges’ explanation for City Harvest leaders’ reduced jail terms, explained

Internet reacts with outrage & disillusionment to reduced sentences for 6 CHC Kongvicts

One of the City Harvest leaders saddened by sentencing, because “ultimately we did it for the church”

All 6 City Harvest Church leaders get reduced sentences

 

Top photo by Chiew Teng

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