AGC and CHC: What is a “criminal reference”?

Apr 10, 2017 07.00PM |
 

by Suhaile Md

THE Attorney-General Chambers (AGC) has filed a Criminal Reference today with the Court of Appeal with regards to the City Harvest Church (CHC) case, said the AGC in a statement earlier today (Apr 10). A Criminal Reference is made when any party of the criminal proceedings wishes to refer “any question of law of public interest”, according to the Supreme Court.

In other words, if there is reason to believe that a decision of the High Court has significant implications beyond the current case down the road, then a Criminal Reference is made. This is the next step that can be taken once the appeal process has run its usual course.

Said the AGC today: “Having carefully considered the written grounds, the Prosecution is of the view that there are questions of law of public interest that have arisen out of the High Court’s decision.”

This is the latest development since last Friday (Apr 7), when the six leaders of CHC, including founder Kong Hee, had successfully appealed to have their sentences reduced from between 21 months and eight years to between seven months and three and a half years. Three judges presided over the appeal and it was a split 2-1 decision.

The six are guilty of misappropriating $24 million in church funds, and spending a further $26 million to cover their tracks. They were initially charged with Criminal Breach of Trust (CBT) under section 409 of the Penal Code in a lower court. But the High Court said in its judgement that the charges of CBT should fall under the lesser charge in section 406 of the Penal Code instead. The questions of law arise here.

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406, 409, what’s the difference?

Criminal Breach of Trust basically happens when someone who is “entrusted with property… dishonestly misappropriates” said property. This is established in section 405. But the severity of the punishment borne by the guilty depends on WHO the person is.

According to section 409, if the person is entrusted with property “in his capacity… as an agent”, then the person may be jailed up to 20 years. The AGC of course claims that the six are considered agents. And in fact the AGC had appealed that the jail terms be increased from between 21 months and eight years to between five and 12 years.

Kong Hee and gang appealed that they were not agents, and hence their punishment should fall under section 406 where the maximum sentence is seven years jail.

But last Friday, the high court had agreed the charges should fall under section 406. And so the six leaders had their charges reduced.

Many had expressed surprise at the reduced sentence. Even prompting the Minister for Law Mr K Shanmugam to say on Saturday (Apr 8) that “the matter is not over yet, the AGC is considering whether it’s possible to take further steps”.

From the G’s point of view, said the Minister, “this legal reasoning has serious implications in other cases, including corruption cases. And we will have to consider as a matter of policy what other steps to take because we cannot relax on that.”

The Criminal Reference is held in open court and the public can attend it. If successful, the six will not get off with the lighter sentences they received on Friday. The decision in a Criminal Reference is final.

 

Want to know more about the case? Read more here.

  1. City Harvest Trial: Facing Judgement Day
  2. Church and state: What’s next for City Harvest?
  3. CHC Appeal: Sounding a similar refrain, church leaders downplay own roles in final attempt to escape jail
  4. City Harvest Appeal: Trying to overturn conviction, lawyer argues ‘no personal gain’ for Kong Hee
  5. Not a good Harvest for the state
  6. Transcript of the CHC guilty verdict

 

Featured image from TMG file.

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