Making sense of the City Harvest Ruling
The Public Response to the High Court Decision
Photo: Ernest Chua
The recent decision of the High Court in the appeal of Kong Hee and other members of the City Harvest Church (‘CHC’) has generated significant public discussion on the fairness and adequateness of the sentence. To provide a brief summary, the High Court had in a split decision reduced the sentences of Kong Hee and the other members of the management of the CHC. The reductions in sentences were significant, in most cases the offenders’ sentences was effectively halved. In reaching their decision, The High Court had to consider whether the offenders were ‘agents’ within the meaning of section 409 of the Penal Code.
A closer look at Criminal Breach of Trust Offences
Section 409 of the Penal Code is an aggravated form of Criminal Breach of Trust. Before going any further, it is probably useful to explain what an aggravated offence means briefly. A crime can be committed in many different ways. Because of this, Parliament sometimes prescribes different sentences for similar crimes which have been committed through adopting more aggravated methods. So within the Penal Code, you may sometimes find a class of offences for which different sentences are prescribed based on certain features of the crime. For example, the maximum punishment for rioting is seven years imprisonment under section 147 of the Penal Code. However, under section 148 of the Penal Code, the maximum sentence for rioting with a deadly weapon is ten years imprisonment. So we can see that although the base offences are similar for the two sections (i.e., the act of rioting), for obvious reasons, the crime of rioting with a deadly weapon is considered to be more serious than rioting without a deadly weapon.
Similarly, the offence of Criminal Breach of Trust (‘CBT’) exists in various forms. There are different maximum sentences for:
- Simple CBT (Maximum imprisonment term of 7 years);
- CBT by a carrier (Maximum jail term of 15 years);
- CBT by a clerk or servant (Maximum jail term of 15 years);
- CBT by a public servant, banker, merchant or agent (Maximum jail term of life imprisonment or 20 years).
To convict the CHC members under the most aggravated form of CBT, the prosecution would have had to prove not only that the CHC members were guilty of criminal breach of trust, but also that they were in fact agents. The purpose of this article, it is best not to delve into what constitutes an ‘agent’ as that probably deserves an entire article on its own, but it would suffice to say that in agency relationships, there is a very high level of trust vested in the agent. It is for this very reason that an offence involving CBT by an agent is viewed as particularly egregious, and deserving of harsher sanctions.
What does the High Court Decision mean?
Coming back to the decision by the High Court, there appears to be some confusion over the High Court’s findings. To put it simply, the High Court agreed that the CHC members were guilty of CBT but did not find that the relationship between the offenders and the church to be one that involved agency. At the time of publishing, the grounds of decision are unavailable, so we aren’t able to comment on the exact reasoning of the majority judges. Since the High Court found that the CHC members were not agents, the conviction under the most aggravated form of CBT could not stand. On this basis, they were convicted of the lesser charge of simple CBT, and since the maximum sentences for that offence are lower, the sentences had to be adjusted commensurately.
Is The Decision Fair?
Fairness is subjective, and each person is entitled to come to his or her own conclusion. However, it is important to analyse the decision on its merits and be mindful of the methods you employ to reach your conclusion. Social media has been abuzz with comparisons between the recent High Court decision and another case involving a man who was sentenced to 4 ½ years imprisonment for ‘stealing’ $1,900.00 from a mosque. Just reading the headlines may lead one to conclude that there is a disparity in sentencing between the two cases. However, a closer scrutiny of the latter case will reveal stark differences between the two.
The individual who was convicted of stealing $1,900.00 was not charged with theft, but with the offence of ‘house-breaking by night’ to commit theft. This is an aggravated form of house-breaking, and the section under which he was convicted imposes a mandatory minimum sentence of 2 years imprisonment. Furthermore, this individual had committed the act of housebreaking by night 12 times on different occasions, and it appears that he was convicted of four charges of housebreaking by night to commit theft.
In the circumstances, it would probably be unfair to compare the two cases based only on the amount of money involved. The offence of CBT is very different from the offence of house-breaking by night. The following non-exhaustive list provides some distinguishing features between the two:
- There is no act of stealing involved in CBT offences. The offence merely deals with persons who misappropriate funds which they have been legally entrusted with.
- House-breaking offences are considered more serious because it involves breaking into the property. The conduct of the perpetrator is bold, and it violates the sanctity and security of the property.
- House-breaking by night is considered to be more serious than the base offence of house-breaking as the perpetrator is taking advantage of the cover of night, the fact that the persons who own or reside on the property would probably have their guard down, and such offences are harder to detect.
- House-breaking by night to commit an offence has an additional layer of blameworthiness in that the perpetrator is not only breaking into the property under the cover of night but is doing so to commit another offence.
The features of the offences discussed above will hopefully show that a comparison between the amount of money that has been misappropriated by one offender under CBT and money stolen by another offender in a house-breaking by night offence provides a weak basis for comparing the blameworthiness and the sentences imposed on the two offenders. Finally, one should also consider the number of charges for which the offender was convicted of when considering the appropriateness of the sentence.