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CHC: CBT is a very technical offence

In Public Administration on 08/04/2017 at 11:10 am

The High Court’s reduction of the sentences of all six former City Harvest Church (CHC) leaders has upset a lot of people especially the anti-PAP cybernuts. (I’ll talk about their antics in a separate post).

Here I want to explain why two High Court judges decided the way they did. (The decision was a split one: 2 to 1.

Criminal breach of trust (CBT) is a very technical crime and the judgment was a very technical one.

I know one head of crime section in the AGC who became a district judge, and as a district judge had his verdict on a CBT case overturned on appeal. He had acquitted someone accused of CBT only for the guy to be found guilty on appeal by the AGC. Incidentally his career in the legal service was not affected.

Now to the judgement.

Justice Chao said in his oral judgement on Friday that a majority decision was made to reduce the respective CBT charges against the six, from an “aggravated” form of CBT – which they were initially convicted of – to a “simple” form of CBT because the law states that a person convicted of an aggravated form charge. must be” a public servant, banker, merchant, factor, broker, attorney or an agent when committing the crime”.

Justice Chao said he and Justice Woo agreed

with the Prosecution that directors, who occupy positions of great power, trust and responsibility, are more culpable than employees when they commit CBT offences against their companies or organisations. To that extent, we agree that it is intuitively unsatisfactory that a director would only be liable for CBT simpliciter under s 406 of the Penal Code while a clerk, servant, carrier or warehouse keeper would be liable for an aggravated offence under either ss 407 or 408 of the Penal Code. This does not, however, mean that we can ignore the wording of the section. Like the Malaysian Court of Appeal in Periasamy, we are of the view that adopting the interpretation put forward by the Prosecution may be “tantamount to rewriting the section by means of an unauthori[s]ed legislative act” (at 575A). Such a task should be more properly left to Parliament. For instance, we note that the relevant expression of the equivalent provision in the Malaysian Penal Code was amended in 1993 to read “in his capacity of a public servant or an agent” …”

Because the “simple” form carried a lesser sentence, the sentences were reduced.

So why did the AGC think that what the six did was “aggravated CBT” and not “simple CBT”.

The answer according to a lawyer is that  the Court in this case did not follow the earlier High Court decision in Tay Choo Wah, which had been applied for some 40 years in Singapore and which held that Penal Code Section 409 applied to directors.

The Court could do this but the judge in the lower court was bound by the decision in Tay Choo Wah.

Will the AGC seek to persuade the Court in a future case that the Court in this case got the interpretation of Section 409 wrong, or pursue a criminal reference under Section 397 of the Criminal Procedure Code?

Or will the law be amended?

I suspect the latter. Because if there’s an appeal under s397 and AGC wins, there’ll be another cyberstorm, The convicted will not have their sentences reinstated*.


 

*I stand corrected. The CA can reinstate the sentences but is not forced to. The sentences cannot be increased. My mistake. 10 April

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  1. Hahaha!!! It only became so complicated becoz too many individuals & parties over many decades or centuries amended, added, subtracted the various bits of law to suit their own specific purpose or agenda, and leaving it to unmotivated civil servants to mould the whole thing together into something that is barely coherent, which is a damn laborious & tedious task that doesn’t contribute much to big bonuses.

  2. Wrong again. The CA has the power to make any order that the High Court could have. That includes increasing the sentence. You will note from the AGC’s statement that they are asking the CA to restore the original convictions and make the necessary and consequential orders on their sentences.

  3. The AGC asked for reinstatement of the convictions under s.409 of the PC NOT the sentences You appear to be in the minority of one as Eugene Thuraisingham was reported (correctly) in today’s S.T. that the CA may “leave the sentence as it it, increase it, decrease it.”

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