Public Prosecutor v Lam Leng Hung and other appeals

• Court: High Court (Singapore)
• Judge: Chao Hick Tin JA
• Judgment Date: 07 April 2017
• Neutral Citation: [2017] SGHC 71
• Citation: [2017] SGHC 71
• Published date: 07 February 2018
• Plaintiff Counsel: Mavis Chionh SC, Tan Kiat Pheng, Christopher Ong, Grace Goh, Joel Chen, Jeremy Yeo, Tan Zhongshan and Eugene Sng (Attorney-General's Chambers)
• Defendant Counsel: Andre Maniam SC and Russell Pereira (WongPartnership LLP),Kenneth Tan SC (Kenneth Tan Partnership) (instructed) and Nicholas Narayanan (Nicholas & Tan Partnership LLP),N Sreenivasan SC and S Balamurugan (Straits Law Practice LLC), Chelva Rajah SC, Burton Chen, Chen Chee Yen, Megan Chia and Lee Ping (Tan Rajah & Cheah),Edwin Tong SC, Jason Chan, Lee Bik Wei, Peh Aik Hin, Kelvin Kek, Aaron Lee and Jasmine Tham (Allen & Gledhill LLP),Ng Hian Pheng Evans (TSMP Law Corporation) as amicus curiae.,Chew Eng Han in-person,Paul Seah, Calvin Liang, Cheryl Nah and Sean Lee (Tan Kok Quan Partnership)
• Date: 07 April 2017
• Hearing Date: 16 September 2016,20 September 2016,19 September 2016,21 September 2016,15 September 2016
• Docket Number: Magistrate’s Appeals No 147 to 152 of 2015
• Subject Matter: Penal Code,Falsification of accounts,Statutory offences,Property,Sentencing,Offences,Criminal Procedure and Sentencing,Criminal Law,Appeals,Criminal breach of trust,Criminal conspiracy

Chao Hick Tin JA (delivering the judgment of the majority consisting of Woo Bih Li J and himself): Introduction and overview

Sometime in September 2001, the City Harvest Church (“CHC”) decided to embark on a project that used popular music for evangelism. In 2002, after a series of concerts in Taiwan and Hong Kong, this project came to be known as “the Crossover”. The Crossover, which was first launched in Asia, involved Ms Ho Yeow Sun, also known by her performing name “Sun Ho”, recording and launching secular music albums in order to reach out to people who might otherwise never step foot into a church to listen to a preacher, and to encourage Christians in the popular music industry to share their conversion stories and testimonies. The theological legitimacy of the Crossover as a means of evangelism is not an issue in this case.

Around 2004, a decision was taken within the CHC leadership to expand the Crossover into the market in the United States of America (“the US”). Within a few years after the Crossover’s launch in the US, an award-winning producer, Wyclef Jean (“Wyclef”), was brought on board. Wyclef commanded substantial fees, and his participation, together with the expansion of the Crossover, led to a significant increase in the amount of funding that was necessary. This led to CHC entering into a series of transactions between 2007 and 2009 with a number of entities, namely Xtron Productions Pte Ltd (“Xtron”), PT The First National Glassware (“Firna”) and AMAC Capital Partners (Pte) Ltd (“AMAC”). We will explain the details of these transactions later in this judgment. Pursuant to these transactions, funds were transferred from CHC’s Building Fund (“the BF”) and General Fund (“the GF”) to these entities.

In May 2010, the Commercial Affairs Department (“the CAD”) commenced investigations into the affairs of CHC. As a result of the investigations, six persons, Kong Hee, Lam Leng Hung (“John Lam”), Tan Ye Peng (“Ye Peng”), Chew Eng Han (“Eng Han”), Serina Wee Gek Yin (“Serina”) and Tan Shao Yuen Sharon (“Sharon”), were charged with offences of criminal breach of trust (“CBT”) relating to the above-mentioned transactions that occurred between 2007 and 2009. The latter four were also charged with falsifying certain accounts.

In Public Prosecutor v Lam Leng Hung and others [2015] SGDC 326 (“the Conviction GD”) and Public Prosecutor v Lam Leng Hung and others [2015] SGDC 327 (“the Sentencing GD”), the Presiding Judge of the State Courts (“the Judge”) convicted and sentenced the six persons on all the charges preferred against them. The six persons have appealed against their conviction. They have also appealed against the sentences imposed on them on the ground that the sentences are manifestly excessive, whilst the Prosecution has appealed against the respective sentences, arguing that they are manifestly inadequate. Given the various cross-appeals, we will hereinafter refer to the parties simply as the appellants (or by their names individually) and the Prosecution, respectively.

We heard these appeals over the course of five days in September 2016. We now give our judgment, which is divided into two parts. In the first part, we deal with the appellants’ appeals against conviction and in the second, we deal with the various appeals against the sentences imposed by the Judge.

Background The appellants

We begin with a brief summary of the six appellants.

Kong Hee is the founder and was at the material time a senior pastor of CHC. He was the president of the CHC Management Board (“the CHC Board”) from 1992 to 10 April 2011. He is also Sun Ho’s husband and was the main decision-maker in relation to the Crossover.

Ye Peng was at the material time a deputy senior pastor of CHC. He was first appointed to the CHC Board in April 1995, and was elected as the vice president in 2007.

John Lam became a member of the CHC Board in 1993 and served as treasurer and secretary at various times. He also sat on CHC’s audit committee (“Audit Committee”) and the investment committee (“Investment Committee”). He was the chairman of the Investment Committee from 5 July 2007 to 1 February 2008.

Eng Han became a member of CHC sometime in 1995. He was a member of the CHC Board from 25 April 1999 to 7 July 2007, over which time he held various positions such as vice-president and treasurer. He served on the Investment Committee, which was then known as the finance committee, from 2006 to 2007. Eng Han was also the sole director of AMAC and held 70% of AMAC’s shares. AMAC was registered as a limited private company on 26 April 2007 and operated an investment business. In July 2007, Eng Han resigned from the CHC Board after the CHC Board made a decision to appoint AMAC as CHC’s fund manager. Eng Han left CHC in 2013.

Serina joined the accounts department of CHC in August 1999 as an assistant accountant. She rose through the ranks to become CHC’s finance manager sometime in 2005. Serina resigned on 31 August 2007 in order to set up Advante Consulting Pte Ltd (“Advante”) in October 2007. Advante’s business is in providing accounting and corporate secretarial services. In the interim period before Advante was incorporated, Serina provided accounting services to Xtron. Her involvement in the impugned transactions was primarily as an administrator of the Crossover. She also sat on the CHC Board from 17 April 2005 to 7 July 2007.

Sharon was never on the CHC Board. She joined CHC’s accounts department on 12 January 2000 as an assistant accountant. She took over as senior accountant after Serina resigned in August 2007 and was subsequently promoted to finance manager sometime in 2008.

The charges

The six appellants were convicted of 43 charges in total. These charges (which are comprehensively set out at [19]–[21] of the Conviction GD) can be broadly characterised into three categories.

The first category of charges which the appellants, save for Sharon, were convicted of was referred to by the Judge as the “sham investment charges”. We will adopt the same terminology but needless to say, this is solely for convenience and reflects nothing more. These three charges pertained to the use of funds from the BF to purchase bonds from Xtron and Firna and were for the offence of conspiring to commit CBT by an agent punishable under s 409 read with s 109 of the Penal Code. The charges were brought under two different editions of the Penal Code, with the first charge being under the 1985 revised edition (ie, Penal Code (Cap 224, 1985 Rev Ed)) and the second and third charges being under the 2008 revised edition (ie, Penal Code (Cap 224, 2008 Rev Ed)). This was because the offences in the latter two charges occurred after the amendments to the Penal Code came into effect on 1 February 2008. Following the amendments, the maximum non-life imprisonment term for the offence was increased from ten to 20 years. We will refer to the different editions of the Penal Code collectively as “the Penal Code” unless the edition in question has significance.

Before the Judge, the appellants raised a preliminary objection in respect of the second of the three sham investment charges. They argued that the second charge was defective because the first and second charges both related to the same conspiracy (ie, the entering into a bond agreement to use funds from the BF to purchase Xtron bonds) albeit to different drawdowns of the fund, and thus the Prosecution ought to have preferred only one charge. The Judge rejected this submission and held that each drawdown was a separate act being abetted and was thus capable of forming the subject of a separate charge (the Conviction GD at [100]–[102]). Although none of the appellants raised this preliminary objection in the hearing before us, their written submissions indicate that some of them are still pursuing this point on appeal. We do not think there is any merit to this argument. Where there are multiple acts of CBT pursuant to different transactions within the same overarching conspiracy, it does not follow that only one charge should be preferred. Each time an act of CBT is committed in pursuance of a conspiracy, that is in itself an offence and therefore a separate charge of abetment by conspiracy of CBT may be brought against the accused. The Prosecution may well decide to bring a consolidated charge against the accused and ask for a higher sentence taking into account all the acts, but it is also equally within its discretion to prefer separate charges for each act or some of the acts, as in this case.

The second category of charges which the appellants, save for Kong Hee and John Lam, were convicted of is the “round-tripping charges”. These charges were similarly for the offence of conspiring to commit CBT by an agent punishable under s 409 read with s 109 of the Penal Code, and pertained to a series of transactions that was carried out between 9 April and 2 October 2009. The charges relate to the alleged misappropriation of sums from the BF and the GF for the purpose of creating a false appearance that the Firna bonds had been redeemed.

These two categories of charges (ie, the sham investment charges and the round-tripping charges) will be referred to collectively in this judgment as “the CBT Charges”.

The third category of charges which the appellants, save for Kong Hee and John Lam, were convicted of is the “account falsification charges”. These charges were framed under s 477A read with s 109 of the Penal Code, and pertained to the entries recorded in CHC’s accounts in October and early November 2009 for the transactions that were the subject of the round-tripping charges.

As seen from above, not all the appellants are involved in all the charges. Sharon is not involved in the sham investment charges, while John Lam and Kong Hee are not involved in the round-tripping charges and account falsification charges. But for ease of...