Debated in Parliament on 5 Feb 2018.
Thank you, Mr Speaker, for allowing me to make this Statement.
The Attorney-General's Chamber (AGC) made a Reference to the Court of Appeal on the City Harvest Church Case. Two questions were asked. On 1 February 2018, last week, the Court of Appeal released its decision on the Reference.
I want to set out the Government's position, now that the Court of Appeal has said what the law is.
The key question is related to the liability of company directors, governing board members, key officers of charities and officers of societies. When they commit criminal breach of trust (CBT) or property which belongs to the organisation, what happens?
The Court of Appeal ruled that such officers are liable to be punished under section 406 of the Penal Code that provides for a maximum sentence of seven years’ imprisonment, or fine, or both.
The Court of Appeal also ruled that these officers do not come within the term, the meaning of a professional “agent”, and therefore, they were not liable for the more serious penalties under section 409 of the Penal Code for CBT. Section 409 provides for a maximum of life imprisonment.
The Government's policy is clear. 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. If you abuse that trust, you should be more culpable and should be liable for more severe punishments, compared with an ordinary employee. That is really common sense and there can be no question about that.
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. It said that directors are liable for the aggravated offence provided under section 409. After that decision, the position was clear, settled law. The law was applied in that way for over 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.
In April last year, however, the position changed. The High Court ruled that directors cannot be liable under section 409. That was contrary to the decision in 1976 and the way the Courts have applied section 409 over these 40 years.
The Government asked AGC what should be done, what further steps ought to be taken after the High Court's ruling. AGC advised that a clarification should be sought from the Court of Appeal by way of a Reference. We now have 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 Court of Appeal gave its decision, as I said earlier, last Thursday in response to the two questions of law submitted by AGC.
The Court of Appeal's decision means that there is now a lacuna in the law. As it stands today, ordinary employees can be charged under section 408 of the Penal Code. That provides for more serious penalties for CBT compared with section 408. It is punishable by mandatory imprisonment for up to 15 years, and an optional fine. Directors, however, can only be charged under section 406 – which provides for a lesser punishment up to seven years’ jail or fine or both. The Court of Appeal 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 Court of Appeal also pointed out that the obligation of the Court is to set out the legal position correctly on what the law says, and to leave it to Parliament to amend the law as it deems fit.
It is now up to Parliament to amend the law, and that we should do soon. We will ensure that legislation provides for higher penalties for directors and other senior officers who commit CBT. We hope to make the amendment, together with the other wide-ranging amendments to the Penal Code, which I have spoken about.
To the House, let me make one final comment – we are aware that many have expressed their dissatisfaction with the outcome.
Expressing one’s unhappiness with Court decisions is fine, but it should not sink to the level of abuse, insults 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.
That is not right. Judges should not be personally attacked and 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 us not attack the judges.
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 and confirmed by the Court of Appeal. The Courts decide these matters. All of us have to respect the decision, regardless of whether we agree or disagree with it. Thank you, Mr Speaker.
Mr Speaker: Mr Gan Thiam Poh.
I thank the Minister for the clarifications. As rightly pointed out, I also personally received a lot of feedback. On the ground, people are commenting that the Court let those who are rich go lightly and also those who can get off for religious reasons. The worst is they also commented that, for this particular case, it was handled by a so-called lawyer who is also a Member of Parliament (MP) from the People's Action Party (PAP). So, may I know what is the Minister's stand on this and a clarification on his comments? Also, what can the Government do about all these comments and also how should we proceed from here?
I thank the Member for the question. I think Mr Edwin Tong would not be entirely happy to be called "a so-called lawyer and MP". I think he is a qualified lawyer and a Senior Counsel. 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 their decision. And it is, really, a clear case of abusing the anonymity of the Net or anonymity to the extent that it exists. Just because you do not agree with the judges does not mean that 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 will be relevant in this context.
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 a Court of law, not in the court of public opinion.
A few years ago, I already expected that there would be more and more of such scurrilous attacks on the judiciary. If left alone, they will become the norm. That is why we legislated into law the Administration of Justice (Protection) Act. One of those opposing it, I think, it was Mr Leon Perera who 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 do not want to end up like the United Kingdom (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 have the temerity to decide in a way that the media did not like. 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 a "policy discussion forum". 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 Wanbao on the same day. It was a report on the City Harvest Church matter. The title of the news article, the banner headlines had, however, been faked in the Facebook post. The original title translated was, and I quote, "Outdated laws saved the accused from harsher penalties". Someone appeared to have faked the title into, and I quote, "PAP lawyer saved the accused from harsher penalties", making it look as if a mass circulation newspaper had done so, probably to give more credence 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. I do not 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.
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 Administration of Justice (Protection) Act, or 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, other relevant factors. That has always been the case, even before the AOJP. AGC will assess the various statements that have come to their notice in this context.
And quite apart from whether the fake headlines scandalised 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 depends, amongst other things, on lawyers being able to act for defendants, whatever offences the defendants are accused of. As I have said before several times, even a child rapist is entitled to his day in Court and to be defended. It does not 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. Lawyers should not be made to feel that they will be hounded online if they take up cases.
Let me share a personal example with Members from when I was in practice. I am probably in the unique position in Singapore of someone who has both acted for the three Prime Ministers of Singapore and also of having acted against all three of them. In 1995, Prime Minister Goh, Senior Minister Lee and Deputy Prime Minister Lee, as they were then, sued the International Herald Tribune (IHT) for libel. The IHT came to me. The conversation as to whether I would act for them took about two minutes. I told them they must know I was a PAP MP, and were they comfortable that they would get the best possible advice from me, given my position? They knew that I was a PAP MP. They said it was okay with them, if it was okay with me. It was okay with me. I did not 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 did not 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 who could get counsel of their choice, and so, I should help the IHT.
The import of my acting for the IHT, when it went to Court, did not escape Senior Minister 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 Prime Minister, Senior Minister and Deputy Prime Minister. I was a PAP MP. The decision by the IHT, despite the situation, to instruct me was, and I quote "the highest tribute to the integrity of the counsel" and "possibly reflected also on the integrity of the Government".
Over the years, I 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.
The fake headline that I referred to earlier in the Facebook page is part of a mob mentality, to hound the lawyers, to intimidate them into not acting in cases which the mob disapproves of. It is quite shameful. 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 do not necessarily just mean contempt action. If we accept such faking as normal, then you can see that the line between that and the current position of 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 sorts of things. We should not get there and it will be a sad day for Singapore if we do get there. Thank you, Sir.
Mr Speaker: Miss Cheng Li Hui.
I would like to ask the Minister this: the Court of Appeal noted that the review of the law is long overdue. Why did the Government not amend the law earlier?
I said earlier that since 1976, the position has been settled, clear law from the time the Tay Choo Wah case was decided. I mentioned that there are at least 16 reported decisions in the books confirming that decision over the years. There must be many others which are unreported. So, the position has been consistently applied by the Courts over 40 years. No doubts or uncertainty were expressed by our Courts; prosecution, defence, everyone proceeded on that basis. There was no suggestion that the law was in need of any review. There was, therefore, no reason for Parliament to review the position or amend the law. Parliament does not legislate in vain.
Mr Speaker: Mr Yee Chia Hsing.
I would like to thank the Minister for the Ministerial Statement and I am very happy to note that the law is under review. One key fact of this whole City Harvest case is that a key beneficiary, which is, the wife of Kong Hee, was not charged for any offence. In reviewing the law, would the Ministry also look at whether to put in some penalties where the beneficiary of a CBT case can also be charged under the law?
I think one has to be careful about this. A beneficiary who receives proceeds without the appropriate knowledge does not automatically become a criminal. Supposing the person took the money and donated it to another charity, does the recipient commit a criminal offence?
I think we need to be careful. The law, as drafted, is wide enough to deal with people who act with criminal intention, conduct, misuse property. There is a lacuna in that section 409 does not apply to directors, senior officers in the way the Court of Appeal has construed it, and we should fix that lacuna. But knowing receipt of property to the extent that it needs to be criminalised, you will find it in the law.
Mr Speaker: Mr Vikram Nair.
I thank the Minister for the clarifications. Will this case have a big impact on future cases, especially between now and the time the law is changed?
For the cases involving directors, or similar sorts of senior officers, where the cases are already before the Courts, obviously, you will now have to apply the law as determined by the Court of Appeal. For the cases which are being investigated, where AGC is considering the charges, again obviously, the AGC would have to take into account the decision by the Court of Appeal. If there are any charges to be brought in respect of actions that have taken place before any legislative changes, I am sure AGC will take into account what the appropriate charge is. It does not automatically mean that any changes will not apply. I do not want to go into those things but I think we identified a lacuna. I mean, it has been identified for us. And we need to deal with it.
Mr Speaker: Mr Gan Thiam Poh.
I have additional clarifications. I also hear comments. Since it has been practised for so long, it has been consistently practised, why did the Court suddenly change the precedent? We should follow the precedent and change should be thereafter.
Order. Can I just remind Members, we are not here to question the specific decisions of the Court.
I will send the copy of the judgment to Mr Gan offline because it is 150 pages or more. The judges explained their thinking.
In summary, they feel that when the law was drafted, when section 409 was drafted, it was some time ago. It could not have been the intention of the drafters to deal with the directors, because Company Law had not been developed to the extent that it has now. And therefore, it could not have been within the minds and the drafting intention. Therefore, you would need new provisions which deal with it. There are different approaches to interpretation. The other approach is to say, "Well, you take those words and you apply it as circumstances evolve". They also explained why they did not want to do that here. That is in two lines; I am probably not doing full justice to it but that is the sense.
Order. End of Ministerial Statement. If I may just remind Members, do read the Standing Orders with regard to comments, especially Standing Orders 21(1)(h) and 59, in future, on any discussions relating to issues like this.
The Clerk will now proceed to read the Orders of the Day.
PAPERCUTS