Ministerial Statement on Criminal Reference on City Harvest Church Matter – Speech by Mr K Shanmugam, Minister for Home Affairs and Minister for Law

1.     Thank you, Mr Speaker, for allowing me to make this Statement.

Introduction

2.     The AGC made a Reference to the Court of Appeal (CA), on the City Harvest Church Case. Two questions were asked. On 1 February 2018 last week, the CA released its decision on the Reference.

3.     I want to set out the Government's position, now that the CA has said what the law is.

Summary of Court Decision

4.     The key question related to the liability of company directors, governing board members, key officers of charities, officers of societies who commit criminal breach of trust (CBT) of property, property which belongs to the organisation. What happens?

5.     The CA ruled that such officers are liable to be punished under s406 of the Penal Code. That provides for a maximum sentence of 7 years' imprisonment, or fine, or both.

6.     The CA also ruled that these officers do not come within the term or meaning of professional "agent", and therefore, they were not liable for the more serious penalties under s409 of the Penal Code for CBT. S409 provides for a maximum of life imprisonment.

Policy Principle

7.     The Government's policy is clear:

1. If you are a senior officer, director in the organisation, you are in a position of greater trust. You have considerable authority to make decisions in relation to the organisation's assets.

2. If you abuse that trust, you should be more culpable, and you should be liable for more severe punishments, compared with an ordinary employee.

3. That is really common sense and there can be no question about that.

History of Court Decisions

8.     For the last 40 years, the law, as applied by the Courts, reflected this principle.

• In 1976, the High Court ruled so in the case of Tay Choo Wah[1] . It said that directors are liable for the aggravated offence provided under s409.

• After that decision, the position was clear, settled law.

• The law was applied in that way for 40 years, by Courts in other cases. There are at least 16 decisions reported applying this principle, and there must be many other unreported decisions.

9.     In April last year, however, the position changed. The High Court ruled that directors cannot be liable under s409. That was contrary to the decision in 1976, and the way the Courts have applied s409 over these 40 years.

10.     The Government asked AGC what should be done and what further steps ought to be taken after the High Court's ruling.

• AGC advised that a clarification should be sought from the CA by way of a Reference. We now had two conflicting positions from the High Court. One, Tay Choo Wah and the line of cases that applied Tay Choo Wah, and second, the City Harvest Church case where the Court disagreed with Tay Choo Wah.

• The CA gave its decision, as I said earlier, last Thursday, in response to the two questions of law submitted by the AGC.

Response to Court Decision

11.     The CA's decision means that there is now a lacuna in the law.

• As it stands today, ordinary employees can be charged under s408 of the Penal Code. That provides for more serious penalties for CBT compared with s406. s408 is punishable by mandatory imprisonment for up to 15 years, and an optional fine.

• Directors, however, can only be charged under s406 which provides for a lesser punishment of up to 7 years' jail, or fine or both.

• The CA itself acknowledged this gap in the law, and it said that there was no "good policy reason" to ignore the "heightened culpability" of directors and key officers of charities, societies, and companies who commit CBT.

• The CA also pointed out that the obligation of the Court is to set out the legal position correctly on what the law says, and leave it to Parliament to amend the law as it deems fit.

12.     It is now up to Parliament to amend the law, and that, we should do soon.

1. We will ensure that legislation provides for higher penalties for directors and other senior officers who commit CBT.

2. We hope to make the amendment together with other wide ranging amendments to the Penal Code, which I have spoken about.

Addressing Public Sentiments

13.     To the house, let me make one final comment. We are aware that many have expressed their dissatisfaction with the outcome.

14.     Expressing one's unhappiness with Court decisions is fine, but it should not sink to the level of abuse, insult and contempt.

• We have seen comments online that the judges let off those who are rich;

• That some judges were lenient because they were Christians and so on.

15.     That is not right. Judges should not be personally attacked, their integrity impugned, just because people do not agree with their decision. There may be unhappiness. People are entitled to disagree with their decision. But let's not attack the judges.

16.     The Government believes that the sentences are too low. But the sentences reflect the law as it stands after the High Court's decision last year, confirmed by the CA. The Courts decide these matters.

17.     All of us have to respect the decision, regardless of whether we agree or disagree with it.

18.     Thank you Mr Speaker.

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Annex

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Question:

MP Mr Gan Thiam Poh:

The Minister is aware, that there have been comments the Courts let off people who are rich, that the courts were influenced by religious reasons. I assume the Minister is also aware of comments that a PAP MP got them off lightly. Minister referred to some of these comments in his speech. Can Minister clarify what the government intends to do about such comments, beyond saying that these are unacceptable? Can Minister also clarify what his views are, about attacks on lawyers in such cases?

Minister's Response:

1.     I said earlier that it is entirely legitimate to express one's unhappiness about court decisions. But some statements have indeed gone too far, abusing the judges personally, ascribing improper ulterior motives to the decision.

2.     And it is really a clear case of abusing the anonymity of the net, or the anonymity to the extent that it exists. Just because you don't agree with the judges, doesn't mean you have the right to abuse them and challenge their integrity. People who abuse judges, challenge their integrity, will be prosecuted, if a case for contempt can be made out. I will set out later some factors which would be relevant in this context.

3.     The Courts should not be pressured by public opinion. They should be free to decide in accordance with what they believe the law to be. Criminal cases must be tried in the court of law, not in the court of public opinion.

4.     A few years ago, I had already expected that there would be more and more of such scurrilous attacks on the Judiciary. If left alone, they will become the norm.

5.     That is why we legislated into law the Administration of Justice (Protection) Act (AOJP). One of those opposing it, I think it was Mr Perera, asked me in this House, why the need for this law. This is one relatively small illustration. If we do nothing, it will get much worse and become unsolvable. We don't want to end up like the UK, where the press freely attacks the judiciary. You get newspaper headlines, screaming banner headlines labelling Judges as "enemies of the people", "you fools", because the courts had the temerity to decide in a way that the media did not like.

6.     If we are not careful, we will easily go down that route. Let me give Members a current example. There is a public Facebook group with a Chinese name, which I understand can be translated as "Policy Discussion Forum" (议论政策论坛). I was informed that a copy of a news article was posted on 2 February last week on this Facebook. The article had appeared in the Chinese news daily Lian He Wan Bao on the same day. It was a report on the CHC matter. The title of the news article, the banner headlines, had however been faked in the Facebook post.

7.     The original title, translated, was I quote "Outdated law 'saved' the accused from harsher penalties" ("避过加重刑罚…过时法律"救"了他们"). Someone appeared to have faked the title into, and I quote "PAP Lawyer 'saved' the accused from harsher penalties" ("避过加重刑罚…行动党律师"救"了他们"), making it look as if the mass circulation newspaper had done so, probably to give more credit to the headline. AGC takes the view that the suggestion from the fake title is that the PAP MP was responsible for an unfair, unjust outcome and the Courts have let off the defendants lightly because of him. AGC's view is that this is a case of Contempt, by scandalising the Courts.

8.     I don't want to go into the meanings of the fake title, because the matter is with AGC, and it will be dealt with in accordance with the law. Whatever the meaning of the statement, and regardless of whether or not it is in contempt, one can see that this sort of attack, based on deliberate faking, is quite unacceptable. I cannot see how any reasonable person will justify such faking as a legitimate expression of free speech.

9.     I have asked the Police to take a serious view of those who scandalise the Court. Not only for this case. If there are other comments which cross the threshold and are in contempt of the court, our approach is that action will be taken. That has been so before the AOJP and it remains so after the AOJP. In coming to a decision whether to prosecute for scandalising the courts, the factors will include assessing who said it, how seriously is the statement likely to be taken, how wide was the publication, and other relevant factors. It has always been the case, even before the AOJP. AGC will assess the various statements that have come to their notice, in this context.

10.     And quite apart from whether the fake headlines scandalise the Court, there is another point. Defendants are entitled to get a lawyer of their choice. Rule of law, a civilised system of having trials in court, depend amongst other things, on lawyers being able to act for defendants, whatever offences the defendants are accused of.

11.     As I have said before, several times, even a child rapist is entitled to his day in court, and to be defended. It doesn't mean that we, or the lawyer defending the person, approves of child rape. But the defendant has a right to choose a lawyer to defend him. And we must not take that away from him.

12.     Lawyers should not be made to feel that they will be hounded online, if they take up cases.

13.     Let me share a personal example with Members, from when I was in practice. I am probably in the unique position, in Singapore, someone who has both acted for the three PMs of Singapore , and also of having acted against all three of them .

14.     In 1995, PM Goh, SM Lee and DPM Lee as they were then, sued the International Herald Tribune for libel. The IHT came to me. The conversation as to whether I will act for them took about two minutes. I told them they must know I was a PAP MP. Were they comfortable, that they will get the best possible advice from me, given my position?

15.     They knew that I was an MP, PAP MP. They said it was ok with them, if it was ok with me. It was ok with me. I didn't see any need to clear with the Party or anyone connected to the Party or Government. By taking on the case, I was simply doing my professional duty. I didn't need to take on the brief. I was very busy with other work. But I thought the IHT had a right to Counsel of its choice. They were faced, obviously, with particularly formidable plaintiffs and hoped to get Counsel of their choice. And so I should help the IHT.

16.     The import of my acting for the IHT, and it went to court, did not escape SM Lee Kuan Yew. In court, after his evidence was over, and before he stepped out of the witness box, he said he had to point out the situation. He said that I was close to the three of them, meaning the PM, SM and DPM. I was a PAP MP. The decision by the IHT, despite the situation, to instruct me was, I quote, the 'highest tribute to the integrity of the Counsel', and 'possibly reflected also on the integrity of the Government'.

17.     Over the years, I have also acted for various others whose conduct will not be approved of by the general public, and some of whom were impecunious and could not pay fees. I acted for them, whenever I could, based on certain principles which I do not need to go into here.

18.     The headline that I referred to earlier in the Facebook page, is part of a mob mentality to hound lawyers, to intimidate them into not acting in cases which the mob disapproves of. It is quite shameful.

19.     Supposing no action is taken when public Facebook pages do this, then what is there to prevent the media itself from publishing such articles in the future? By action here, I don't necessarily just mean contempt action. If we accept such faking as normal, then you can then see that the line between that and the current position in the UK almost disappears. You will then get in the mainstream media, the headlines I earlier spoke about, about judges, abusing them, and other similar sort of things.

20.     We should not get there. It will be a sad day for Singapore, if we do get there.

[1] Tay Choo Wah v Public Prosecutor [1974 – 1976] SLR(R) 725