Chew Eng Han v Public Prosecutor

• Jurisdiction: Singapore
• Judge: Andrew Phang Boon Leong JA
• Judgment Date: 11 October 2017
• Neutral Citation: [2017] SGCA 60
• Plaintiff Counsel: The applicant in person
• Date: 11 October 2017
• Docket Number: Criminal Motion No 10 of 2017
• Hearing Date: 03 July 2017
• Subject Matter: Criminal Procedure and Sentencing -Criminal References -Leave to refer question of law of public interest
• Year: 2017
• Defendant Counsel: Hri Kumar Nair SC, Christopher Ong, Joel Chen and Eugene Sng (Attorney-General's Chambers)
• Court: Court of Appeal (Singapore)
• Citation: [2017] SGCA 60
• Published date: 17 October 2017

Andrew Phang Boon Leong JA (delivering the grounds of decision of the court): Introduction

This was an application for leave to refer questions of law of public interest to the Court of Appeal for its determination, pursuant to s 397 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“the CPC”). The application arose from the prosecution of six leaders of City Harvest Church (“CHC”), the trial of which was concluded in 2015. The accused persons’ appeal was heard in 2016 and decided earlier this year. This application was filed following the High Court’s decision on the appeal. We heard and dismissed it on 3 July 2017, giving brief reasons at the hearing. We now provide the full grounds of our decision.

The criteria for the granting of leave to refer questions to the Court of Appeal is strict, and for good reason. The criminal reference mechanism cannot be used as a means by which a dissatisfied litigant institutes a further (and backdoor) appeal against a decision of the High Court which, in the exercise of its appellate jurisdiction, has reviewed the findings of the District Court and reached a decision on the arguments advanced by the parties at the appeal. The schema of the CPC establishes only one tier of appeal – in this case, from the District Court to the High Court – and it is not for the litigant to manufacture a second tier of appeal through the abuse of court processes intended for other purposes. The CPC allows the litigant to have his proverbial day in court, and that day comes to a close when the trial has run its course, the trial judge has rendered his decision and the appellate court has reached its determination as to whether there is any merit in the grounds of appeal.

What is also at stake here is the principle of finality in the judicial process. If the court is not careful to guard against applications that amount to nothing more than backdoor appeals, a disingenuous litigant could conceivably keep spinning out applications ad infinitum through the criminal reference mechanism in order to prolong the criminal proceedings indefinitely, thereby delaying the commencement of the sentence lawfully imposed on him. Indeed, even one such application would – in and of itself – constitute an abuse of process if it raises no question of law of public interest and is filed for no other reason than as a delaying tactic, aimed at frustrating the efficient and expeditious conduct of criminal proceedings.

In the context of the present application, we also note that the questions which the Applicant sought to refer to the Court of Appeal were closely scrutinised not only in the District Court but also by a specially constituted three-Judge coram of the High Court on appeal. The judgments of both courts, in fact, span a total of approximately 570 pages. In our view, the decision of a three-Judge coram of the High Court should generally represent a final and authoritative determination of the issues arising from the case. Therefore, as a general matter, no leave will – absent exceptional circumstances that we will elaborate upon below – be given for a further reference to be made to the Court of Appeal. We were satisfied that no such exceptional circumstances existed in this case. All the questions raised by the Applicant pertained to elements of the offences of criminal breach of trust (“CBT”) and falsification of accounts, which the High Court unanimously found were satisfied on the facts of this case. In the circumstances, we found that this application should be rejected on this ground alone.

In any event, we were satisfied that the questions sought to be referred by the Applicant were either questions of fact, settled questions of law, questions involving the application of settled law to the facts of the case, or questions that simply did not arise from the case before the High Court. These were plainly not proper subjects for a criminal reference as they did not satisfy the requirements under s 397(1) of the CPC.

Background

The background to this application is set out in detail in the first instance judgment of the Presiding Judge of the State Courts (“the Judge”), Public Prosecutor v Lam Leng Hung and others [2015] SGDC 326 (“the Conviction GD”), and the appellate judgment of the High Court, Public Prosecutor v Lam Leng Hung and other appeals [2017] 4 SLR 474 (“the MA Judgment”). We briefly recount the facts which are material to the present application, including the relevant findings of fact made by the courts below. It is worth noting from the outset that due to the nature of this application, the findings of fact made by the High Court could not be subjected to challenge and therefore had to be taken as full and accurate, because the criminal reference mechanism does not provide a means for the reopening of factual findings.

CHC is a Singapore “mega-church” which was rapidly expanding at the turn of the century. In 2002, it officially embarked on “the Crossover” – a project that involved Ms Ho Yeow Sun (“Sun Ho”), a co-founder of CHC, recording secular pop music albums as a means of evangelical outreach. This was part of CHC’s vision of using popular culture to spread its religious creed. At the same time, the church was actively looking for suitable premises to accommodate its growing congregation and raised large amounts of funds for this purpose through a pledge campaign. These donations were segregated in a Building Fund (“the BF”) and the pledge cards given to the church members explicitly stated that these monies were to be used “for the purchase of land, construction costs, rentals, furniture and fittings”.

The six accused persons were leaders of CHC. They are as follows (in order of their position in the church hierarchy): Kong Hee, the founder and senior pastor of CHC. He was the president of the CHC management board (ie, its board of directors). He is also Sun Ho’s husband. Tan Ye Peng (“Ye Peng”), a deputy senior pastor of CHC. He was a senior member of the CHC board at all material times. Lam Leng Hung (“John Lam”), who was either the secretary or treasurer on the CHC board at various times and the chairman of the CHC investment committee in 2007 and 2008. Chew Eng Han, the Applicant. He was a senior member of the CHC board who held various positions including vice-president from 2006 to July 2007. In July 2007, he resigned from the board so that a company of which he was sole director, AMAC Capital Partners (Pte) Ltd (“AMAC”), could be appointed as CHC’s fund manager. Serina Wee Gek Yin (“Serina”), who was a member of the CHC board from 2005 to 2007 and the finance manager of the church until 2008. She was the administrator of the Crossover. Tan Shao Yuen Sharon (“Sharon”), a member of CHC’s accounts department who took over from Serina as finance manager in 2008. She is the only accused person who has never been a member of the CHC board.

Use of the BF to fund the Crossover through Xtron and Firna

When the Crossover was launched in 2002, it was focused on the Asian market with Sun Ho releasing Mandarin pop albums. The project had the support of the CHC board and the initial two albums were directly funded by CHC. This arrangement, however, ceased after Roland Poon, an ordinary member of the church, made public allegations that CHC was giving excessive attention to Sun Ho and misusing its funds to promote her career. These allegations generated negative publicity and the CHC board issued a written response, published in The Straits Times, that church funds had not been used to purchase Sun Ho’s albums or to promote her career. The executive members of CHC (“the EMs”) were also told by Kong Hee at an annual general meeting (“AGM”) on 27 April 2003 that no church funds had been used for the Crossover. This was not true. The version of events relayed to the EMs was that the monies used to promote Sun Ho’s albums had in fact come from the family of a church member, Wahju Hanafi (“Wahju”), a wealthy Indonesian businessman who was a member of CHC.

After this incident, the accused persons decided that greater distance should be placed between CHC and Sun Ho’s music career to avoid further negative publicity. In particular, they agreed that they had to be “discreet” about the source of the funds used to finance Sun Ho’s music production, including publicity and promotional expenses.

Incorporation of Xtron and the Xtron bonds

To this end, Xtron Productions Pte Ltd (“Xtron”) was incorporated in June 2003 with three shareholders: John Lam, the Applicant and the Applicant’s wife. All three were also its directors. Xtron was, in appearance, an independent firm providing artiste management services to Sun Ho. But the Judge, with whom the High Court agreed, found that Xtron was in substance no more than an extension of CHC and was controlled entirely by the church, and in particular by Kong Hee and Ye Peng, with the directors no more than figureheads.

From 2003, Xtron financed Sun Ho’s music career using monies from various sources, including donations and revenue from CHC, for various event management and audio-visual and lighting services which Xtron provided to the church. These funds, however, proved insufficient after Kong Hee resolved that the Crossover, and therefore Sun Ho’s music career, should to be extended to the USA. Specifically, in May 2006, a famous American executive producer, Wyclef Jean, was brought into the project. This significantly increased the amount of money needed to fund the Crossover.

Kong Hee, Ye Peng and the Applicant considered ways to raise more funds for Xtron to meet the Crossover’s increased financial needs. Initially, they contemplated Xtron taking a bank loan, but abandoned this option after the interest rates offered by the banks were judged to be too high. The Hong Kong bank Citic Ka Wah, for instance, offered a loan of $9m at an interest rate of 16% per annum.

Eventually, upon...