Re Caplan Jonathan Michael QC

• Jurisdiction: Singapore
• Judge: V K Rajah JA
• Judgment Date: 08 April 2013
• Neutral Citation: [2013] SGHC 75
• Court: High Court (Singapore)
• Docket Number: Originating Summons No 44 of 2013
• Published date: 23 May 2013
• Year: 2013
• Hearing Date: 05 March 2013,04 March 2013
• Plaintiff Counsel: Pateloo Eruthiyanathan Ashokan and Sheryl Cher Ya Li (KhattarWong LLP)
• Defendant Counsel: Christopher Ong Siu Jin and Joel Chen (Attorney-General's Chambers),Aurill Kam Su Cheun, Tan Zhongshan and Jurena Chan (Attorney-General's Chambers),andChristopher Anand Daniel and Harjean Kaur (Advocatus Law LLP)
• Subject Matter: LEGAL PROFESSION,Admission,Ad hoc
• Citation: [2013] SGHC 75

V K Rajah JA: Introduction

This application was made pursuant to s 15 of the Legal Profession Act (Cap 161, 2009 Rev Ed) (hereinafter referred to as “the current LPA” to distinguish it from its predecessor versions) for Mr Jonathan Michael Caplan QC (“Mr Caplan QC”) to be admitted as an advocate and solicitor of Singapore for the purpose of representing one Chew Eng Han (“the Accused”) as his defence counsel in District Arrest Cases Nos 023158 to 023167 of 2012, including any appeals therefrom (“the Criminal Proceedings”). The application was opposed by the Public Prosecutor (“the PP”), the Attorney-General (“the AG”) and The Law Society of Singapore (“the LSS”). After hearing the parties’ submissions, I dismissed the application and gave brief oral grounds for my decision. I now set out my full grounds.

The facts Background to the Criminal Proceedings

City Harvest Church (“CHC”) is a society registered under the Societies Act (Cap 311, 1985 Rev Ed). The Accused was the fund manager of CHC at the material time. On or about 31 May 2010, the Commercial Affairs Department (“the CAD”) commenced investigations into CHC and other entities relating to CHC. The Accused was first called in for investigations by the CAD on or about 31 May 2010. The following people from CHC were also involved in the CAD investigations (collectively referred to as “the Co-Accused Persons”): Reverend Kong Hee (“Reverend Kong”), President of the Management Board of CHC; Mr Tan Ye Peng (“Mr Tan”), Vice-President of the Management Board of CHC; Ms Serina Wee Gek Yin (“Ms Wee”), a member of the Management Board of CHC; Mr Lam Leng Hung (“Mr Lam”), a member of the Management Board of CHC; and Ms Tan Shao Yuen Sharon (“Ms Tan”), the Finance Manager of CHC.

About two years later, the CAD investigations culminated in the Accused being charged in court on or about 27 June 2012 with six charges of criminal breach of trust (“CBT”) under s 409 read with s 109 of the Penal Code (Cap 224, 2008 Rev Ed) (“the current PC”) and four charges of falsification of accounts under s 477A read with s 109 of the current PC. The relevant provisions are reproduced below: Punishment of abetment if the act abetted is committed in consequence, and where no express provision is made for its punishment 109. Whoever abets any offence shall, if the act abetted is committed in consequence of the abetment, and no express provision is made by this Code for the punishment of such abetment, be punished with the punishment provided for the offence.

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Criminal breach of trust by public servant, or by banker, merchant, or agent 409. Whoever, being in any manner entrusted with property, or with any dominion over property, in his capacity of a public servant, or in the way of his business as a banker, a merchant, a factor, a broker, an attorney or an agent, commits criminal breach of trust in respect of that property, shall be punished with imprisonment for life, or with imprisonment for a term which may extend to 20 years, and shall also be liable to fine.

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Falsification of accounts 477A. Whoever, being a clerk, officer or servant, or employed or acting in the capacity of a clerk, officer or servant, wilfully and with intent to defraud destroys, alters, conceals, mutilates or falsifies any book, electronic record, paper, writing, valuable security or account which belongs to or is in the possession of his employer, or has been received by him for or on behalf of his employer, or wilfully and with intent to defraud makes or abets the making of any false entry in, or omits or alters or abets the omission or alteration of any material particular from or in any such book, electronic record, paper, writing, valuable security or account, shall be punished with imprisonment for a term which may extend to 10 years, or with fine, or with both.

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In the first to third charges, it was alleged that the Accused abetted by engaging in a conspiracy with Reverend Kong, Mr Tan, Ms Wee and Mr Lam to commit CBT by an agent in relation to monies belonging to the CHC Building Fund, and that pursuant to that conspiracy, a total of S$24m belonging to the CHC Building Fund was dishonestly misappropriated for the purposes of funding the music career of Ho Yeow Sun (“Sun Ho”), the wife of Reverend Kong (vis-à-vis the first to third charges), and providing funds to one Wahju Hanafi (vis-à-vis the third charge), which were not authorised purposes of the CHC Building Fund. The dishonest misappropriation was allegedly made by way of transferring monies from the CHC Building Fund to third-party companies, namely, Xtron Productions Pte Ltd (“Xtron”) (vis-à-vis the first and second charges) and PT The First National Glassware (“Firna”) (vis-à-vis the third charge), under the guise of investments by CHC in bonds issued by Xtron and Firna.

In the fourth to sixth charges (“the Round-Tripping Charges”), it was alleged that the Accused abetted by engaging in a conspiracy with Mr Tan, Ms Tan and Ms Wee to commit CBT in respect of the CHC Building Fund (vis-à-vis the fourth and sixth charges) and the CHC General Fund (vis-à-vis the fifth charge), and that pursuant to that conspiracy, monies from those funds were dishonestly misappropriated by way of transferring monies from the respective funds to AMAC Capital Partners (Pte) Ltd (“AMAC”) (vis-à-vis the fourth and fifth charges) and Xtron (vis-à-vis the sixth charge) to generate the false appearance that certain investments in Firna bonds had been redeemed, which was not an authorised purpose of those funds.

In the seventh to tenth charges, it was alleged that the Accused, wilfully and with intent to defraud, abetted by engaging in a conspiracy with Mr Tan, Ms Tan and Ms Wee to falsify the accounts of CHC, and that pursuant to that conspiracy, Ms Tan instigated one Dua Poh Teng (an assistant accountant of CHC) to record false entries in CHC’s accounts to create the false appearance that bond investments in Xtron and Firna had been either fully redeemed or set off against advance rental payments.

The transactions and/or events that formed the basis of the charges against the Accused are summarised in the table below (collectively referred to as “the Transactions”):

Charge No	Transaction
1	Transfer of $10m from the CHC Building Fund to Xtron between 23 August 2007 and 2 January 2008
2	Transfer of $3m from the CHC Building Fund to Xtron on or about 5 March 2008
3	Transfer of $11m from the CHC Building Fund to Firna between 6 October 2008 and 19 June 2009
4	Disbursement of $5.8m from the CHC Building Fund into AMAC’s Special Opportunities Fund on or about 2 October 2009
5	Disbursement of $5.6m from the CHC General Fund into AMAC’s Special Opportunities Fund on or about 14 October 2009
6	Disbursement of $15,238,936.61 from the CHC Building Fund to Xtron on or about 6 November 2009
7	Entry describing a payment of $5.8m made to AMAC as “Investment-Special Opportunity Fund” under the accounts item “Investment” in CHC’s accounts on or about 2 October 2009
8	Entry describing a payment of $5.6m made to AMAC as “Special Opportunity Fund” under the accounts item “Investment” in CHC’s accounts on or about 27 October 2009
9	Entry describing a set-off amounting to $21.5m in favour of Xtron as “Redemption of Xtron Bonds” in CHC’s accounts on or about 31 October 2009
10	Entry describing a payment of $15,238,936.61 made to Xtron as “Advance Rental with Xtron” under the accounts item “Prepayments” in CHC’s accounts on or about 6 November 2009

At the time of the hearing of this application, the first tranche of the trial was tentatively scheduled to begin on 6 May 2013 for three weeks, while the second tranche of the trial was tentatively scheduled to begin on 26 August 2013 for four weeks. The trial is fixed to be a joint trial with the Co-Accused Persons, who have been charged with similar offences in relation to the Transactions.

Background to this application

Sometime after the CAD investigations commenced, the Accused sought to engage Mr Davinder Singh SC of Drew & Napier LLC to represent him. However, the Accused soon found out that Mr Davinder Singh SC would not be able to act for him and the Co-Accused Persons in the Criminal Proceedings as Drew & Napier LLC had been involved in the drafting of the bond subscription agreements which were likely to feature in those proceedings.

When the Accused was charged on or about 27 June 2012, he engaged Mr Lok Vi Ming SC of Rodyk & Davidson LLP to represent him. Although he knew at that time that one of Mr Lok Vi Ming SC’s partners was advising the directors of Xtron, he subsequently became uncomfortable with the retainer as Xtron’s directors could be potential witnesses in the Criminal Proceedings. The Accused therefore discharged Mr Lok Vi Ming SC. It was not clear when this took place.

Subsequently, the Accused engaged the services of Mr Francis Xavier s/o Subramaniam Xavier Augustine SC (“Mr Francis Xavier SC”) of Rajah & Tann LLP. At the hearing of this application, the Accused confirmed to the court through his counsel for this application, Mr Pateloo Eruthiyanathan Ashokan (“Mr Ashokan”), that sometime in August 2012, Mr Francis Xavier SC first informed the Accused that he might have to discharge himself due to a conflict of interest arising from Rajah & Tann LLP’s involvement in the drafting of the bond subscription agreements which were likely to feature in the Criminal Proceedings. The Accused also informed the court through Mr Ashokan that Mr Francis Xavier SC’s subsequent confirmation that he could not continue acting for the Accused was communicated to the Accused sometime in September 2012.

By this time, the Co-Accused Persons had engaged the following lawyers from the following law firms to act for...