CHC’s Trial – Topic related to Foong Daw Ching – Part 1 (MrsLightnFriends: 31 March 2015)

What was mentioned in court as at 30 March 2015?

On 23 March 2015, Tan Ye Peng testified that it was Kong Hee who introduced Foong Daw Ching to him. Tan knew Foong as the number one person in the audit firm of Teo Foong & Wong and is also an elder of a church. (On 25 March 2015, Tan Ye Peng testified that Foong is an elder from the Church of Singapore)

On 11 September 2013, Foong Daw Ching gave evidence in court that he is a Christian, elder of Church of Singapore and chairman of the Elder board. He was involved in the Festival of Praise (FOP).

In Foong’s EIC, he denies giving key advice or having a meeting with the 4 defendants (Tan Ye Peng, John Lam, Eng Han and Serina). He also repeatedly gives statements such as “I don’t know” and “I can’t recall”. You could see council Tong and senior council Sreeni were being aggressive with him for his evasive replies.

On 17 September 2013, Foong agreed with Council Tong that Baker Tilly has been the auditor of CHC and CHC-related entities since 1993. In addition to that, Baker Tilly also performed personal tax services for both Pastor Kong as well as Sun Ho. Foong also agreed with Tong that he gave advice to Kong in relation to salaries, bonuses, honorariums and royalties.

During the cross-examination, when presented with some meeting dates (25 June 2007, 21 July 2008, 1 August 2008, 12 August 2008), Foong could not recall.

On 18 September 2013, Foong’s appointment diary came into court as evidence. Senior Counsel Sreeni went through chains of email with Foong, fortunately, or unfortunately, he still could not recall the meeting he had with Tan Ye Peng, Serina Wee, Eng Han and John Lam.

On 2 January 2015, Deputy Public Prosecutor Christopher Ong put to Chew that the actual relationship between Xtron and City Harvest Church was not accurately described to Foong. (In the context of the document evidence E-269)

On 3 January 2015, DPP Christopher Ong put it to Chew that his intention to meet Mr Foong on 1 August 2008 was to test the compromise statement.

On 16 March 2015, Chew said Foong lied on the stand.

On 30 March 2015, DPP Mavis Chioh asked Tan Ye Peng why he did not state the whole facts of Xtron in the document evidence E-269, and instead leaving Foong Daw Ching to tease out certain information.

Recap of Foong cross-examined by Council Tong on 17 September 2013

Tong: Have you invited Pastor Kong to preach at your church?

Foong: Oh, I think might be one time…. I can’t really remember, you know. I can’t remember, actually.

Tong: Who solemnized your daughter, Amy Foong’s wedding?

Foong: Pastor Kong.

<…..>

Tong: Mr Foong, I’m going to who you a series of documents…. Mr Foong, there is a stack of emails…. The first email from Kong Hee to you on 30 Dec 2003… I believe you were one, informing various people of the progress of Sun Ho’s single on the America billboard dance charts. Do you recall seeing this?

Foong: No, I can’t recall.

Counsel Tong showed an email evidence to Foong.  In this email Foong actually replied to Kong’s email. After Foong saw this email he said, “Yes, I remember that.”

Foong wrote:

Dear Kong,
Congratulations once again for this achievement. God’s favour is indeed upon Sun and you. Will continue to pray that God will watch over both of you. Have a blessed New Year.”Then Kong replied to Foong in the same email
“Need your ever vigilant advise in 2004, Brother Foong.”

Tong asked Foong, what he understand by Kong saying to him “ever vigilant advise”.

Foong said …. “I don’t know what this “ever vigilent” advice meant.

Tong: Did you ask him?

Foong: No… I can’t recall whether I asked him or not.

<….>

Tong referred to another email evidence dated 23 July 2006, Subject “Kong IHPL and XPL”.

In this email Kong Hee wrote to Foong and Joseph Toh in relation to the financial accounts concerning Kong Hee’s personal company and Xtron.

Tong: ….Mr Foong, first of all, by July 2006, at the very latest, you would be aware of Xtron Pte ltd, right?

Fong: Yes, I believe, yeah.

Tong: In fact, it ought to be earlier, because even prior to this date, Xtron Pte Ltd was already a Baker Tilly client. Right?

Foong: I can’t remember when but….. I was not the engagement partner….

Foong said when he was being consulted by Kong Hee in relation to Xtron Pte Ltd, he was not alone, Mr Joseph Toh was involved too.

Tong: I can see you are suddenly becoming quite careful.

Foong: No, no, no.

……

Tong: By this time, you would have been aware of Xtron Pte Ltd, agree?

Foong: As I say, your Honour, I don’t know.

Tong: It is a simple question, Mr Foong. You can answer “Yes” or “No”… please try it that way. “Yes” or “No” then you can explain.

Foong: I, I, I, I, I don’t know, because I ‘m not the engagement partner, when exactly the date, I don’t know. But I remember Xtron, yes. It’s, it’s our client.

Tong: Let me help you again. I’m not asking you to tell me when they became your client. By the date of this email, which is 23 July 2006, you would by the latest, by this date, have been aware of Xtron Pte Ltd. Agree?

Foong: Okay, thank you. Just looking at this email, its looks like, yes, Xtron is our client already.

Tong: You would be aware of the relationship to the extend that it is set out in this email between Sun and Xtron, agree?

Foong: I think from this email, yes…. Pastor Kong has explained the relationship between Sun and Xtron, yes.

Foong qualified that Joseph Toh was in this email too. He gave evidence in court that when characterizing related party transaction or disclosure he only know it broadly.

Tong: So you were asked advice on related party transactions. Did you give that advice?

Foong: I can’t recall I gave or both of us sat together and gave.

Tong: Is related party transactions and how you would characterize it as a related party transaction or what you might do for disclosure, something that is within your area of expertise?

Foong: I, I, I, only know broadly how….

Mr Foong was asked a series of questions related to the meetings he had with Serina Wee and Tan Ye Peng. Foong denied (couldn’t remember) having meeting with the Tan Ye Peng and Serina Wee.

Evidence E-267 dated 24 July 2008 wrote by Serina Wee to the 3 defendants (John Lam, Chew Eng Han and Tan Ye Peng, Foong not a recipient of this email.)

Serina Wee wrote:

Below is summary of what was discuss with Mr Foong on Monday 21 July 2008.

 

Evidence E-332 dated 31 July 2008, Serina wrote to Foong Daw Ching

Hi Mr Foong,
Since our previous meeting with you, there are a few more issues which Pst Kong wants us to run through with you…..

Foong replied on the same day

Hi Serina,
I will be free to meet you tomorrow [1/8] at 3.00pm in my office.

Evidence E-225 dated 1 Aug 2008. Foong Aifang (She is another prosecution witness, who is the sister of Foong Daw Ching) wrote to Serina and Sharon and copied to Tiang Yi and Foong Daw Ching. This email contains details of issues related to audit with an file attachment that Aifang prepared.
 

Aifang wrote:

“Re-cap of documents/evidence required for our reviewed:”
[…. a comprehensive list ….]

 

Foong’s evidence: In relation to the email dated on 24 July 2008 (E-267)

“Your Honour, I can’t remember whether there was a meeting on 21 July with any of the City Harvest people.”

Foong: I cannot recall having this meeting, whether there is such meeting or not, yeah.

After a series of questions ran through with Foong, he said there were a few discussions. He didn’t know whether it was before 21 July at what point of time it was discussed he cannot remember.
Then Foong qualified his evidence:

“No, as I said, general discussions, yes, but not specific name or specific detail was mentioned. I didn’t say that, right, because I just said general comment, touching on topic like, you know, fair value of bonds and impairment of bonds, how to disclose bonds. I think this are the general comment that I made..”

Foong said he don’t know what is the “few more issues” that Serina was referring to. This relates to the email evidence E-255 dated 1 Aug 2008 which Foong said he don’t recall whether he had read it.

Foong’s evidence: In relation to the email dated on 1 August 2008 (E-255)

You must be specific when did I read this email

Tong: Well, if you had any doubt, I think Aifang, your sister, clarified that by sending an e-mail the next morning. I ask you to look at E-225

…..

Tong: No, my question is very simple. Did you read this email?

Foong: When did I read this email?

Tong: Did you read this email?

Foong: You must be specific when did I read this email…

Tong: Mr Foong, most people, when they are asked whether they read the email it’s fairly reasonable to assume that they read it at the time it was sent.

Foong: But I cannot recall when…. whether I read this email or not, I cannot recall. I’m not denying that. Now that you show it to me, I read it now, but I cannot recall…. so many email, I cannot recall at what point of time that I read this email.

Foong’s evidence (cross-examined by Tong): In relation to the meeting on 1 August 2008. 

Evidence email dated 1 Aug 2008 (E-325), was sent shortly after the meeting with Foong at 3pm. Serina wrote to Kong Hee and copied to Ye Peng and Eng Han.

Hi Pastor
We just met with Brother Foong and his replies were favourable regarding our new plans. He advised us the following:[…point 1 and 2 ….]
3. Not to paint the picture that CHC has full control but only some control over XPL. If full control will invite consolidation.
4. We can talk about XPL to the members in EOGM but don’t minute down everything. Just minute down necessary portions so as not to show too close a relationship or control over XPL.
[… point 5 …]
After discussion with Bro Foong, I need to change part of EOGM notes. See attached changes highlighted in yellow.Bro Foong mentioned that he just had a talk with the commissioner of charities (COC) recently and explained to him that churches are doing things very differently now as compared to the past….As Bro Foong sits on the COC’s advisory committee, he will be able to advise us on any new developments to be implemented by the COC.

Foong’s sister Foong Aifang who is the audit manager attended the meeting on 1 Aug 2008. Tiang Yii who is the engagement partner did not attend this meeting. Foong said he couldn’t recall the meeting and he couldn’t recall what was discussed at that meeting. The evidence on what was discussed in the meeting (E-325) was showed to Foong. He couldn’t recall what was discussed in the meeting, but he said E-325 which is the note of what was discussed at the meeting, not accurately expressed what was discussed in the meeting.

Foong: I, I don’t recall this,… this meeting, looks like there’s in this meeting that this issue were brought up …..are you able to show me that this issue in the attachment that Aifang send was discussed at the 1 August meeting? I don’t recall or not, unless you show me evidence to say that actually I’ve walked through this issue with them.

…..

Tong: What then do you say was discussed at this meeting?

Foong: I cannot recall

Tong: I thought so. Go to E-325. Mr Foong, this email was sent shortly after the meeting with you at 3pm. I know you are not copied on it, but you were taken through it, and you gave your views as well to the points that were discussed here. You asked me earlier whether there was a note of what was discussed at the meeting. This email accurately represents what was discussed at the meeting with you, correct?

Foong: Oh, I disagree that it accurately reflect what was discussed at the meeting. I disagreed to that word “accurately”, I think I walked through this e-mail when I was giving evidence-in-chief.

             …..

Tong: Mr Foong,… I said what then do you say was discussed at tis meeting and you answered I cannot recall….

Foong: At that point of time I cannot recall, but now you show me …

Tong: Mr Foong, I don’t think I said at that point of time, I said what then do you say was discussed at this meeting and you said you cannot recall. But you can then go on and give page after page of evidence on what you don’t recall was discussed at the meeting. … Can you explain that to me?

Foong: I think the learned counsel again has subtly put the,,, mixing everything together.. As I say, when I saw his question to me, is that “do you know what was discussed”, based on what issues, more issues were ….. at that point, I said I don’t know what was the issue, all right? I clearly … because they just put more issue. Then he refers me to the 1 August email, thinking that was the issue. Then I say I think my only interest is when you know, how,,,,, why the client complain about the tardiness of the account and now when you show me this, don’t relate to say that I already know beforehand. I already knew…. I know it when…. when I was ,,,, you know,.. it is not like, just now you aked me that question “do I know”, at that point of time, I don’t know. I don’t know at that point of time what was the issue, not that I don’t know, I cannot recall. I also don’t know what was the issue.

Tong: Mr Foong, Stop! Stop! I know you are trying to explain yourself out of that inconsistency. I asked you very clearly what do you say was discussed at the meeting, and you say you can’t recall…… I will leave it.

How Mr Foong’s appointment diary that came into evidence?

Council Tong brought up new document to the court. This document was obtained from the recent seizures over the weekend by the CAD. (Timeline around 14 September 2013)

The 4 pages document was prepared by Aifang who is Foong’s sister. She listed the sequence of events, emails, dates and some remarks to Foong. This document was given to Foong on 21 Jan 2013.

There were some comments and notation written by Foong and Aifang as following:
1. I am only cc.
2. Passed the email to Joseph Toh and he replied on 3/8/04 cc to me.
3. Event on 18 Sep 2007, he wrote “Fwd email to TY and she wrote to Joseph Toh on 19/9 to explain.
4. Event on 1 August 2008, “FAF emailed Serina and cc FDC and TY mentioning about her meeting with FDC”.   Foong wrote “no meeting”
5. Event on 12 August 2008, “Email requesting to meet to discuss Xtron Bonds, requested FDC to attend”. Foong wrote, “just dropped in during the meeting to say ‘Hi’ as I came back to office after another meeting.”

Tong cross-examined Foong on the basis of how he came to the conclusion of “no meeting” on 1 August 2008 and “just dropped in” on the event on 12 August 2008.

Foong: It just at that moment, I just tried to you know, tried to see what are the things that I can remember.

Tong: You were doing this sometime after January 2013. So this meeting would have been about 5 years prior to the time you were doing this. Do you mean to say that you can remember that this particular meeting you actually dropped in to say “hi” because you were coming back from another meeting?

Foong: No, I obviously checked this out and just say…

Tong: Yes.. you checked what out, Mr Foong?

Foong: Again, you know, because it just … I remember there was this meeting.

<…… >

Tong: Mr Foong, with respect, you have spent a lot of your evidence telling us you don’t remember. But now as at January 2013, you can remember very clearly what happened on 12 August 2008, about four and a half years prior to that. I just want to know what is the basis of that suddenly clear and lucid recollection.

Foong replied ….

Tong: Mr Foong do you keep a diary? (Refers to appointment diary)

Foong: I do keep a dairy.
…..

Tong: Can I trouble you to have a look and tell us overnight whether you would be able to produce your diaries for the years 2007, 2008 and 2009… bring it tomorrow.

That’s how Mr Foong’s appointment dairy that came into evidence.

Recap of Foong cross-examined by SC Sreeni on 17 September 2013

Tan Ye Peng called Foong Daw Ching as “Brother Foong”. He went to him for guidance and advice. When being cross-examined by senior counsel Sreeni, Foong was evasive in his replies. SC Sreeni put to Foong that he was being deliberately dishonest and obstructive.

Sreeni: Do you agree that the proper things in the context of giving advice on governance, the proper thing is to find out all relevant information? “Yes” or “No”

Then you can explain.

Foong: Again, I repeated that how many times that I …..

Sreeni: Sorry, Mr Foong, answer my question. That the proper thing is to find out all relevant information?

Foong: I mean, if you don’t tell me…

Sreeni: No your Honour, I want a “yes” or “no” and then he can explain. Because I’ve seen what has been going on for the last five days. The witness doesn’t answer a straight question.

Foong: No, I …..

Sreeni: I repeat my question. The proper thing is to find out all relevant information. “Yes” or “No”?

Foong: No, I don’t know what to say about this one, because …..

Sreeni: We’ll move on…..

Recap of Foong cross-examined by SC Sreeni on 18 September 2013

SC Sreeni took Foong through a whole chain of emails. With Mr Foong’s appointment dairy came in as court evidence on 18 September 2013, the diary tells there is a meeting entry on 25 June 2007 with Eng Han and Ye Peng.

Foong: I can’t recall

After Sreeni read the content of the email, Foong replied, “I still can’t recall, you know…”

After Sreeni read another email wrote by Serina Wee, Foong replied, “Well, that is her email….. Well, she didn’t copy me this email.”
<………>

Sreeni: So we already have Chew Eng Han writing emails contemporaneously, as if he had a conversation with you, John Lam writing contemporaneously, as if he had a conversation with you, now we have Serina Wee writing contemporaneously, as if she had a conversation with you. Right? All these people who have written to Tan Ye Peng, my client… Let’s move on

Sreeni referred to another email attachment evidence dated 21 July 2008 10.07am. (E-269) [On 23 March 2015, Tan Ye Peng’s EIC showed a Blackberry message from him to Foong on 18/7/2008 to meet on 21 July 2008. Tan Ye Peng’s evidence was before he went to meet Foong, he gave a phone call to him and told him that he was going to send him an attachment (E-269) that he has prepared.]

Sreeni: Can you see there’s an attachment?”

Foong: Yes

Sreeni:…. this is a very thick attachment, with appendices and all that. I believe Mr Tong had taken you through this email attachment, am I right?

Foong: Yes, he has.

Sreeni: Do you recall reading this email?

Foong: I don’t recall.

Sreeni: At all?

Foong: Well, I don’t recall.

Sreeni: Do you recall receiving this email?

Foong: It looks like, yes, it was sent to me, yes, yeah.

Foong said he could not recall reading this email attachment. He further explained that this email has no message just an file attachment, if this is so important Pastor Tan would write either “Brother Foong this is very important, could you please read it, read the attachment.”
…..

Sreeni explained the reason why Pastor Tan didn’t put any message in the email. He produced a telephone record evidence of Foong received call at 21 July, 10.02am from Tan Ye Peng.

Sreeni: Mr Foong, I’m putting it to you the reason why this email doesn’t have any content, except the attachment is because five minutes before it was sent, you and Pastor Tan had a conversation.

…….

Sreeni: So we have Pastor Tan having a phone call with you at 10.02am sending you a detailed paper at 10.07am (E-269), and Ms Wee summarizing what she says what was discussed three days later. (E-267 dated 24 July 2008)

Foong: Yes, sounds logical, yes.

Sreeni: What was discussed on 21 July 2008 would have arisen from the paper that Pastor Tan had sent?

Foong: It could be, yes, yeah.

Recap of Chew cross-examined by DPP Ong on 2 February 2015

It’s in the context of the document evidence (E-269). Chew affirmed that Foong Daw Ching knew everything. But DPP Christopher Ong put to Chew that the actual relationship between Xtron and City Harvest Church was not accurately described to Foong.

DPP asked why would Mr Foong need the explanation of the relationship between the two companies and the church in E-269 if according to Eng Han, he would already have been well aware of the relationship in 2007.

DPP: Well you helped to draft this document.

Chew: I didn’t help to draft it, your Honour. I think it was sent to me and then for feedback.

DPP: Well, when you read this when it was sent to you for feedback, wouldn’t it have struck you as odd that Mr Foong is supposed to have known everything already and yet, something different is being told to him?

Chew: Not at all, your Honour.

DPP: Why not?

Chew: Because, to me Foong Daw Ching already knew everything, your Honour. If anything was omitted in this paper, it wasn’t that important, Foong, as far as I knew, knew everything about the Crossover and Xtron…

DPP: I put it to you that the purpose of describing Xtron’s incorporation in this manner was to deceive Mr Foong as to the actual relationship between Xtron the church and Sun’s music career.

Chew: No, your Honour. I disagree.

Recap of Chew cross-examined by DPP Ong on 3 February 2015

DPP put it to Chew that his intention to meet Mr Foong on 1 August 2008 was to test the compromise statement.

DPP: So you proposed this compromise statement, Ye Peng agrees to it, …. so really, what happened was that the next day when you, Ye Peng and Serina Wee met Foong what he was told, or rather what was presented to him was this compromise statement. Correct?

Chew: Your Honour, if the prosecution is saying that what actually happened was the other way around, that we discussed what we wanted and then brought it to Mr Foong to get his approval, then the answer is no.

DPP: .. it has to be that way because 31 July is E-331, when you come up with the compromise statement, and then the next day you go and talk to brother Foong and you’ve confirmed that he wasn’t told the full facts, so it must be that what he was told is the compromise statement. Correct?

Chew: No, your Honour, because Brother Foong is the auditor. Why would he listen to me about full control and not much control, whether to consolidate or not to consolidate? And how did I come up with the statement one day before I met Brother Foong? As I said, we could have had discussions before that particular day, on 1 August I couldn’t have been so prophetic to know what Brother Foong was going to say. Neither did we bring our agenda to him to get him to rubber stamp it. Brother Foong, as he says is a respected leader in church, as well as the Managing Director of the company. There’s no way either of us can sway him, your Honour.

DPP: Mr Chew, I put it to you that the whole purpose of this meeting with Brother Foong on 1 August was to test your compromise statement on Mr Foong, to confirm that it would not trigger consolidation if you subsequently told it to CHC’s real auditors, that is, the engagement partner.

Chew: I disagree, your Honour, and, in fact, I think Mr Foong didn’t say that as well in his testimony.

Sreeni: May it please you, your Honour. I note that my learned friend has put it as a put question. So is it the prosecution’s case that Foong Daw Ching was consulted on how Sim Guan Seng should be deceived?

DPP: Your Honour, I think, if it will assist, I’m putting it that was the intention of Eng Han, Ye Peng and Serina, to use it, to test it against Brother Foong. I’m not suggesting at all that Brother Foong knew he was being used in this manner.

Recap of Chew cross-examined by DPP Ong on 16 March 2015

Chew said Foong lied when he was on the stand.

DPP: Do you know of any reason why he would be lying?

Chew: I think he’s afraid.

DPP: Afraid of what?

Chew: I don’t know. He’s afraid of being implicated, may be.

Recap of Tan Ye Peng’s evidence on Foong on 23 March 2015

Prosecution case is Foong is not the engagement partner. Tiang Yii and Sim Guan Seng at certain point in time, they are the engagement partner. But to Tan, Foong is the main person watching over CHC’s account.

Sreeni referred to one document evidence.

Foong wrote:
“Dear Members of City Harvest Church. My name is Foong Daw Ching and I am a senior partner with the firm of Teo Foong Wong LC Loong, the auditors of City Harvest Church. I have been practicing as an auditor and accountant for 31 years and I am the lead partner in charge of City Harvest Church’s accounts. “

Sreeni: But you know, the prosecution has gone on and on about this thing called “engaging partner”. Do you understand what “engagement partner” is? If you do, what’s the difference between “engagement partner” and “lead partner”?

TYP: Your Honour, at that point in time, in fact, I didn’t make a difference between what is a lead partner or a engagement partner. I just know that there is someone that is watching over the accounts. For example, I know that Joseph Toh is the auditor, because, in my meeting with Mr Foong after the Roland Poon incident, Joseph was there. But in my mind, at that time, I don’t segregate and say, “Oh, this is an engagement partner and this is a managing partner”. I regard them as auditors overseeing our accounts.

< …..>

Sreeni: Subsequently, there was Tiang Yii and then there was Sim Guan Seng. So when you all were dealing with Tiang Yii and Sim Guan Seng as well, were there still communications with Mr Foong?

TYP: Yes, your Honour. We were communicating with Mr Foong all the time, throughout this period. When I mean “period”, I’m talking about from 2003 all the way to 2010. Even beyond 2010, after the investigation, we were still talking to Mr Foong.

< …..>
Sreeni: During all these meetings, discussions and communications, did Mr Foong at any point of time turn around and say, “I am not in a position to tell you anything. Go and talk to so and so, who holds the title ‘engagement partner’?

TYP: No, your Honour.

Sreeni: Did any of these people who come to court and say they are the engagement partner, did they tell you, “Please stop communicating with Mr Foong, you should only talk to us”?

TYP: No, your Honour.

Sreeni referred to an email exhibit dated 12 January 2006 (E-362).

In this email Foong wrote to Serina and copied to Ye Peng.

Hi Serina,
In my opinion and looking at the critical problems uncovered from the NKF saga, it may be better that the audit of a group of companies with some common interest even though they may not be directly related be handled by one audit partner and one audit manager. This will help to ensure that certain transactions whether they are related at all can be critically reviewed and appropriate decisions made. Overall, I am still the Consultant Partner to the whole of CHC group of companies.

Sreeni: He says “Overall, I am still the Consultant Parnter”. What impression did they give you?

TYP: Your Honour, I don’t have to just read it from the email, but at that point in time, the impression I have is Mr Foong is overall overseeing the interests of City Harvest Church, overall helping us to protect our interest. That’s the impression I had.

Sreeni: You’ll remember the learned DPP had suggested to Mr Chew Eng Han that he contacted Mr Foong to have a “test run”, the suggestion being that you all didn’t really want to know Mr Foong’s opinion; what you wanted to do was see whether you could slip it past the auditors. Do you remember that question asked of Mr Chew?

TYP: Yes, I remember, your Honour.

Sreeni: Was that the reason you went to see Mr Foong on various occasions?

TYP: No, your Honour, from the beginning, we’ve always looked to Mr Foong as the one that will advise us, and his advice is what we trust, and I’ve seen him and when I look upon him, I look upon him as an auditor that is very experienced in this field of financial matters, audit matters, accounts matters. Your Honour, just to give a context, when I was listening to Mr Foong say he as been practicing as an auditor for 31 years, at that point in time I was 31 years old, so that is how I would regard him when I hear him say how many years he has been practicing as a auditor.

Sreeni: Meaning he’s been an auditor as long as you have been alive.

TYP: Yes, that’s right. That is the honour and the respect I have for him.

Senior Council Sreeni followed on by going through the exhibits to establish a chronology of events relating to Mr Foong.

1. Exhibit E-91 dated 17 March 2003.
Issue of the recognition of Sun’s concert expenses was consulted with Foong.

2. Exhibit E-527 dated 3 November 2003.
Foong Daw Ching wrote to Kong Hee.

Dear Kong,
I know the recent publicity has disturbed both you and Sun. I am praying that God will protect both of you and He will glorified.

3. Exhibit E-414 dated 19 November 2003. Subject: Request for transfers.
This email is related to the list of people who requested to transfer their 2003 Building Fund donations from CHC to Attributes Pte Ltd in support of Crossover Project.

Foong replied:

I have no problem with the list given provided all those named know exactly what they are doing ie. that they are making this request willingly and not because they have been compelled to do so…….”
He further advice that if is within the same financial year you can ask for transfer.

4. Exhibit E-88 dated 27 July 2004. This email is related to the change of directorship of Xtron.
Serina drafting an email to Wahju

“We have explained to the auditors that all business decisions are made by Xtron’s directors independently.”

TYP: Your Honour, the auditors at that point in time will be, I would think that it is Joseph, because I remember being in a meeting where we discussed this about the change of Xtron directors and Joseph and Mr Foong is aware of this matter.

5. New exhibit E-989 dated 28 December 2008. Recipient of this email are Foong and Foong Aifang, who is the audit manager of CHC and Joseph.

This email is about the resignation of Wong Foong Ming, Human Resource and Admin Manager of CHC.

Wong Foong Ming wrote:

“…. As such the following scope of work will be wholly taken over by:
CHC/CHCSA/Attribute/Xtron – Audit, secretarial & tax matters: Serina Wee.”

The response from Mr Foong is:

Dear Foong Ming,
Your resignation has come as a surprise, but I know as you honour God, He will continue to guide and prosper you in your future endeavours…

Sreeni: Was there any response from TFW as to why Serina Wee was handling both church and Xtron matters?

TYP: No, your Honour.
<…>

Sreeni: But now they’re told it’s the same set of accountant, or the same person handling the account, “Audit, secretarial & tax matters”, and no one from TFW made any query?

TYP: No, your Honour.

<…>

6. Exhibit E-862 dated 27 September 2004.
Kong Hee wrote to Ye Peng and asked him to talk to Foong Daw Ching about how the new rules to keep charities in check would affect CHC.

Sreeni: Did you talk to Foong Daw Ching about it?

TYP: Yes, your Honour not only to Mr Foong but Joseph Toh as well.

7. Exhibit TFW-19 dated 30 July 2004.
This is the audit fees charged by Foong for various organization. The letter was signed by Foong Daw Ching sent to Tan Ye Peng.

Sreeni: So do you know why Mr Foong is sending one letter for the aduit fees for five different bodies?

TYP: Your Honour, because he’s the overall auditor auditing our church and all the companies that’s related to City Harvest Church.

Sreeni: But Mr Foong and all these people, Mr Sim Guan Seng and my learned friend, they all say that Mr Foong was not in charge.

TYP: No, your Honour. We have all along known that Mr Foong is in charge. There was never one moment where he wasn’t in charge of CHC and the companies that are related. That is the reason why he says he wants one auditor to audit all these companies with common interest but may not be directly related to each other.

Sreeni: Mr Foong come to court and you heard Mr Foong say that, actually, you all shouldn’t listen to him, each engagement partner is the one in charge. Do you remember that?

TYP: Yes, your Honour.

Sreeni: What do you have to say to that?

TYP: Your Honour, when I heard that, I was bewildered, your Honour. I was shocked and I really felt it broke my heart, your Honour, because that is not how Mr Foong has been when we relate to him all this while.

Sreeni: One last thing on TFW-19. Mr Foong is sending the audit fee proposal for Xtron to CHC. Am I right?

7. Exhibit E-418 dated 23 July 2006. This is an email from Pastor Kong to Foong Daw Ching, copied to Tan and Serina Wee and Joseph Toh.

Tan said that this email is related to the monies that have gone to Sun from Xtron, is it from individuals who have given to her or from Xtron.

8. Exhibit TFW-26 (This is Mr Foong’s appointment diary that came into evidence.)

There is an appointment entry on 25 June 2007 with Eng Han and Ye Peng.

SC Sreeni referred to another email exhibit E-669 dated 26 June 2007, which the investment policy is suggested by Foong on 25 June 2007 meeting.

The purpose of the meeting on 25 June 2007 was to tell Foong the intent to invest the Building Fund money via Xtron bond and Eng Han was going to be the fund manager and CHC would hold an EGM to appoint Eng Han as a fund manager. Mr Foong then suggested CHC to have an investment policy so that the fund manager could invest according to the policy.

Sreeni: Can you recall whether Mr Foong knew of a possible investment in Xtron?

TYP: Yes, your Honour. We also told him that we will be investing into Xtron and Xtron will be using the funds for the Crossover Project.
…..
Sreeni: When you all met Mr Foong on 25 June, was he made aware of this intention?

TYP: Yes, your Honour. We have in fact, by 2004, Mr Foong already know that Sun was doing the Crossover has moved to the US, because Pastor Kong sent an email to him to update him on Sun’s progress.

There are various emails from Foong giving advice, answering queries in 2003, 2006, 2007, 2008, 2009 and 2010. Tan said that Foong was not correct when he claimed that he wasn’t following the affairs of CHC.

9. Exhibit E-325 dated 1 Aug 2008. This emailwas sent shortly after the meeting with Foong at 3pm. Serina Wee amended the EOGM notes after receiving advice from Foong.

According to Tan Ye Peng’s evidence, the purpose of this EOGM on 10 August 2008 is to inform the members why CHC uses Xtron as a vehicle to hold the Riverwalk property.

Tan remembered John Lam, Serina and himself were present at the 1 August 2008 meeting with Foong.

TYP: The purpose of this meeting resulted from an earlier meeting that we had with him on 21 July where we told him about how we want to pay advance rentals to Xtron for Xtron to buy Riverwalk, and then the plan was changed, and so on 1 August we met Mr Foong again to update him on the change of plans.

The plan was changed because Xtron director Kar Weng had concern about using advance rentals for Riverwalk.

Sreeni: Did you all withhold facts from Mr Foong?

TYP: No, your Honour, because this was a subsequent meeting to the 21^st July, so he would have already the context of what is this meeting all about.

<…. the email evidences goes on … if I have the time I may write Part 2….>

Xtron had 'little say' in Crossover project (ST: 31 March 2015)

DPP says power lay with church leaders, including Kong Hee and his deputy

THE directors of a company that supposedly managed pop singer Ho Yeow Sun did not actually have control nor the power to make decisions about the budget for her US album.

That power lay with the leaders of City Harvest Church (CHC), including senior pastor Kong Hee, who is Ho's husband, and his deputy Tan Ye Peng, alleged Deputy Public Prosecutor Mavis Chionh yesterday as she continued her cross-examination of the deputy senior pastor.

Though Xtron was set up to seem independent, in reality, its directors approved budgets that Kong thought were needed by the so-called Crossover project and had little say of their own.

Tan disagreed, and said Xtron directors such as Mr Wahju Hanafi trusted Kong as a "visionary", and that they deferred to his opinions on budgeting decisions because he had experience dealing with music producers in the United States.

But they did not blindly follow Kong's instructions, Tan insisted.

"Wahju is a businessman. I believe that when he signs any contract, he will apply his mind; he would not have signed any contract blindly or without asking questions," he said.

But DPP Chionh charged that Tan was "desperate to avoid having to concede that Kong Hee was the one controlling and making decisions about the budgeting for Sun Ho's album project".

"... you are trying to maintain the story that the Xtron directors made these decisions independently, and that that, therefore, means the Xtron (bond sharing agreement) was an arm's length commercial transaction," said DPP Chionh as she grilled Tan, 42, during his fifth day on the stand.

He is one of six church leaders charged with misusing $50 million of church funds to boost Ho's music career, and covering up the misuse.

The prosecution believes that five of the accused channelled money from the church's building fund into sham bond investments in Xtron and glass manufacturer Firna.

Four of them, including Tan, then allegedly devised transactions to clear the sham bonds from CHC's accounts to mislead auditors.

Tan has repeatedly told the court that church leaders acted only on the advice of lawyers and auditors in structuring the funding of the Crossover project, a church vehicle to evangelise through Ms Ho's secular music.

Later in the day, DPP Chionh highlighted how Mr Wahju's $1.27 million donation to Xtron - seed money for the Crossover project - had actually come from a refund for a prior donation he had made to CHC's building fund.

When asked, Tan said this was neither told to church members nor the church's auditors.

Two of the accused, Kong and Chew Eng Han, had also withdrawn their funds from the building fund and made donations in a similar fashion.

DPP Chionh alleged that this was arranged so the church's building funds could be channelled to fund Crossover album expenses.

Tan again disagreed, arguing that once the donations had been refunded, they ceased to belong to the church.

But DPP Chionh objected to his reasoning.

She noted that while the "form of the transaction" would look like the individuals withdrawing monies and then voluntarily re-gifting it to Xtron, the substance of the transaction is "a loan of the building fund to the Crossover".

The trial continues in its 109th day today.

Pastor: I'm not an accounts-trained person (ST: 26 March 2015)

BEING no expert in accounting, Tan Ye Peng insisted he could not have been involved in any conspiracy to fake City Harvest Church (CHC) accounts.

He also claimed that as a dedicated servant, he would never do anything to harm the church - pointing out that he gave $400,000 from the sale of his house to CHC.

Into his third day on the stand, the church's deputy senior pastor denied charges by the prosecution that he had been part of a plan to defraud auditors by falsifying accounts, in a bid to cover up misuse of church funds.

"I'm not an accounts- trained person. In fact, when I was in university year one, I failed my accounts," said the 42-year-old yesterday, to chuckles from the courtroom.

He, along with founding pastor Kong Hee and four others, have been accused of misusing $50 million of the church's money to boost the music career of Kong's wife, Ms Ho Yeow Sun.

Five, including Tan, are charged with channelling money from the church's building fund into sham bond investments issued by Xtron, the firm which managed Ms Ho's career, and glass manufacturer Firna. Tan, along with three others, then allegedly devised transactions to clear the sham bonds from the church's accounts to mislead auditors.

Tan, the fifth defendant to take the stand, has continually denied any wrongdoing, stressing how church leaders had constantly sought expert advice from lawyers and auditors in matters related to the funding of the Crossover project.

The Crossover was the church's plan to evangelise through Ms Ho's secular music.

Tan yesterday acknowledged that handwritten meeting notes by church finance manager Sharon Tan, another of the accused, had referred to the need to "clear bonds" off CHC's books.

But he said there had been nothing illegal about these plans, and that it was the church's auditors who preferred having "the bonds off CHC books to keep the accounts simple".

The use of the church's building fund to finance the Crossover was not an unauthorised act as charged by the prosecution, added Tan.

"In every aspect, we've never felt that we've done anything unauthorised," he said.

"Till today, church members come to me and say, pastor, hang in there. No one says pastor, we've been deceived."

He told the court that CHC never suffered any financial loss, as all of the church money used for the transactions "has been accounted for".

The money "has all come back", he said.

He also claimed that as a devoted church leader, he would never intend to cause any loss to CHC.

To illustrate his commitment, Tan highlighted how he even sold his house and gave $400,000 of the proceeds towards repaying the church's money.

This, on top of donating a separate $100,000 to Xtron in relation to the Crossover.

"I'm an ordinary man, I'm just a pastor, I just want to do the will of God, I just want to be faithful to the vision that God has given to us," said Tan.

"In all honesty, I would never do anything that would cause loss to the church... This is the church that I grew up in. This is my spiritual family."

The trial enters its 107th day today.

'No attempt to hide Xtron's role in Crossover project' (ST: 25 March 2015)

CITY Harvest Church (CHC) leaders did not attempt to hide the fact that a company run by some of its members was involved in a project to evangelise through the music of founding pastor Kong Hee's wife.

Deputy senior pastor Tan Ye Peng, 39, said this while on the stand yesterday - the 105th day of the long-running trial on the alleged misuse of $50 million in church funds.

He said the church's executive members knew about music production firm Xtron's involvement in the project, dubbed the Crossover, and why an external party was needed to run it. But he said all of this was not explicitly stated.

Tan, Kong and four others are accused of misusing $50 million in church funds to boost the music career of Kong's wife, Ms Ho Yeow Sun, and covering it up.

Five of them have also been charged with channelling money from the church's building fund into sham bond investments in Ms Ho's management company, Xtron, and glass manufacturer Firna.

Four, including Tan, then allegedly devised transactions to clear the sham bonds from the church's accounts to mislead auditors.

Tan's lawyer N. Sreenivasan set the stage for his client by saying that "there is this accusation that you all were hiding matters" from executive members.

He asked Tan if the executive members knew about Xtron's involvement in the Crossover project.

"Yes," replied Tan. "I think we may not have explicitly said it in a meeting with the executive members but, generally, they knew... The Crossover was a project that the whole church was involved in, and they prayed every week (for it).

"They were all aware of the sensitivity and that this was not going to be done by the church, it was going to be done by another company... Generally, everyone would know that Xtron is doing the Crossover," said Tan.

Mr Sreenivasan then asked his client to explain why the church's efforts to inform its members about Xtron's role had not been documented.

Tan said: "I feel that sometimes what is obvious is things that are not stated in black and white. If I had known in 2010 that I would be investigated, I would have noted everything down... These are things that, I think, it would be even more contrived if we were to note things down like that, as if we knew we would be investigated."

Midway through yesterday's proceedings, Deputy Public Prosecutor Mavis Chionh objected to the way in which Mr Sreenivasan was examining his client, saying he has "leading the witness".

Ms Chionh is likely to conduct the prosecution's cross-examination of Tan next week.

The trial continues today.
  *****************Background Story *****************

NOT EXPLICITLY STATED

I think we may not have explicitly said it in a meeting with executive members but, generally, they knew... The Crossover was a project that the whole church was involved in, and they prayed every week (for it).

- Deputy senior pastor Tan Ye Peng, replying to his lawyer N. Sreenivasan, who asked if the executive members knew about Xtron's involvement in the Crossover

23 Mar 2015 – Tan Ye Peng’s EIC (AM Session) (24 March 2015 - MrsLightnFriends)

Mr Tan Ye Peng took the stand for the first day in the long running City Harvest trial.

Below is the recount of the opening statement by senior counsel Sreenivasan on 23 Mar 2015.

Sreenivasan started with a long opening statement. He explained the reason he has to do it and he sought the judge to consider Ye Peng’s evidence against the evidence of the prosecution witnesses and the evidence of the co-accused.

SC Sreeni highlighted a few points as following:

1. The majority of the prosecution witnesses did not really support the prosecution’s case and the prosecutor did not accept some of the evidences that the prosecution witnesses have given.

2. The prosecution during the cross-examination of the four previous witnesses (John Lam, Kong Hee, Sharon and Chew), the prosecution has given a particular slant or interpretation to various emails during the course of the cross-examination of defence witnesses.

Sreeni: “……In this respect, there are some new slants that were not present in the course of the prosecution’s case but have appeared in the course of the cross-examination of defence witnesses. I mark the first one which is quite critical and that is the assertion that the co-accused had intended to deceive their own board. This assertion was not made as part of the prosecution’s case as an essential ingredient of the charge, nor was it made or relied upon as evidence of a dishonest intent. But more importantly, when we close we will see that in terms of being put to the co-accused it has been put in a disparate manner.”

3. With regards to the tonnes of document evidence, the series of documents must be seen in context. He made some common sense explanations.

Sreeni: “The documentation evidence in this case runs into bundles and bundles and bundles, which leads me to my second point. If there are enough docs spread over a wide enough piece of paper, and I selectively choose to join the dots or some of the dots, I can draw anything I want. …. There are tonnes of emails. The co-accused and other people in the church organisation are constantly discussing what they should do in terms of Crossover and what they should do in terms of the money moving to Xtron, what they should do in terms of investment, what they should do in terms of funding Crossover. So we know there’s this constant conversation going on. According to the prosecution, they are constantly talking about something which was a sham and which they knew to be a sham……

Are they spending all this time talking about something that doesn’t exist?

If they knew it was a sham, there’s very little to discuss. You don’t need to discuss projections. You don’t need to discuss availability of funds to pay back. You don’t need to first put a two-year repayment remit and then change it to ten years. For example, if the prosecution says, “You knew you’ll never be able to pay it back within two years”, [Mrs Light’s comment: Read 5 Feb 2015 – Chew crossed-examined by DPP – Part 1 about the 200,000 CD exhibits] If it is a sham, then you put it as a ten-year bond and then you don’t have those problems.

There are a few explanations we can have. I’m not going to categorise the emails yet; I’m just going to say these are the general explanations.

i. It’s a show that they’re eventually waiting or they’re aware that they might be charged sometime in court, and to use a colloquial term, it is a well-planned Wayang to later come and point to the emails. It doesn’t really cut ice, for two reasons, because if it’s truly a well-planned show, then those parts of the emails that are damaging, that give rise to adverse inference, really wouldn’t have been created by people with guilty minds. In any event, it’s just too complicated to be a false trial. 

ii. The other answer is some of the emails were there to discuss the transaction. They intended the transaction to be a real transaction. It is sham in so far as it is not an investment. This is slightly different, because this is not a case of creating a fake transaction and pretending it’s genuine, but this is a case of creating transaction A which the prosecution then says doesn’t amount to A; it is, in fact, B. That means, if A, being an investment, is not an investment; you all planned the transaction, you all knew exactly what you were doing, but we now say it doesn’t amount to an investment and therefore it is a sham and therefore it is an offence. 

Your Honour, that analysis of the email is, in fact, consistent with innocence, because the intent behind the transaction is the intent that the accused persons had at that point in time, not the inference or not the superimposition of the position’s ex post facto analysis.

This ex post facto analysis of the prosecution is the single thread that runs throughout this case, where this is not an offence committed by the accused persons which has been investigated, facts known, and then being prosecuted base on the facts. This is a prosecution that’s based out, some of it being cobbled out as we go along.

4. About prosecution witness Foong Daw Ching.

Sreeni: “…It’s interesting he gave evidence that he was hardly interviewed. He was interviewed on a very minor point, even though almost every accused person had said that they have spoken to him and relied upon him. The prosecution will nit-pick and say, “Aha, but this does not say that” or “You’re missing that”. Again, with the benefit of hindsight, trying to cobble together a case. But Foong Daw Ching being called turned out to be a blessing, because it shows us the truth of the matter. It shows us that the accused persons were trying to do the right thing, trying to get approvals and disclosed all information that they thought was relevant at the material time….

The prosecution so far has dealt with Foong Daw Ching’s evidence in certain manners, one of which is “You know, he’s not the audit partner in charge, and although he’s the managing partner of the firm and although he says, “I’m the partner in charge of the client” or “I’m the consultant for this client”, oh! we really have to ignore what he says”.

5. For the 7 to 10 charges. The prosecution made a new theory about the second layer of books.

Sreeni: “.. Suddenly in the middle of the cross-examination of Chew Eng Han, we have the new theory again, the second layer of books. It’s interesting but Sharon Tan is also charged on 7 to 10. We can excuse not putting it to Kong Hee and John Lam, but Sharon Tan, the accountant of the church, was not confronted with this second layer of books but as is the wont of the prosecution in this case, build the plane as they fly.

6. Victimless crimes. This relates to the First Information Report (FIR).

Sreeni: “… Your Honour, criminal breach of trust is general a crime with a victim. It’s not one of your regulatory offences which sometimes are described as victimless crimes, or that the society as a whole is a victim, as a crime against property it must be a crime against the property of someone. It’s not like vandalism, which is state property. I emphasise this because this ties up and shows the problem. The reason I have been making an issue about the FIR is not that it’s a constant irritant in the prosecution’s side. Normally, when there’s an offence, there is a complainant and normally the complainant makes the FIR. I used the word “normally” because if I’m a police officer on duty and I see someone committing snatch theft, then obviously I don’t need the complainant to make an FIR. As a police officer on duty, who witnessed a crime, I can. So who makes the FIR? The complainant, ie, the victim? Someone who has observed the crime or discovers the crime makes the FIR? or the police themselves discover the offence in the course of their normal day-to-day duty? These are the three people. But in all three instance and I will come back to the three instances there will be a victim. The reason we have been pressing for the FIR is we have not had any prosecution witness from the church alleging that the church is a victim. So we have this amazing situation where we have CBT, which is not a victimless crime, but no victim. I say this because who speaks for the victim in a case?

….. If I do not say I suffered a wrongful loss or that you had a wrongful gain at my expense, can there be wrongful loss?

…. So we have no victim as complainant. No EMs have been called. We come to the police report. With respect, I would call it the FIR fiasco, because, with respect, your Honour, it is a fiasco. First, 2005, the FIR is in 2005. Guess what your Honour, before the offences were committed. So a lot of shifting was done. August 2008, before most of the offences were committed, it is an interesting FIR, but the IO gave evidence, “I didn’t do any investigations”. Investigations started in 2010, one year and ten months later, because of the complaint from COC, and after much pushing, we got the slides from COC for the joint meeting. We still don’t know what happened with COC. Why do I raise this? This is not a wrongful gain case. The prosecution, in its opening, the first day….

The prosecution case: This is not a case of wrongful gain it is just a case of wrongful loss.

Why do I say this FIR issue is important? Because your Honour, or we saw in the cross-examination of Chew Eng Han, the email from Simon Teoh, who is showing his face, and we will see that everything that happened to City Harvest happened after the acquisition of Suntec.”

7. If Crossover is synonymous with Sun Ho’s music career, where do we land on the question of wrongful loss or intent to cause wrongful loss? There is no offence in this case.

Sreeni: “Now let’s look at he wrongful loss purpose issue. … the prosecution’s response to the no case submission…

“The offences have their origin in the Crossover Project which was conceived in 2001. The Crossover Project revolved around Sun Ho (the wife of Kong Hee CHC’s founder and Senior Pastor) recording and launching secular pop music albums as a means of evangelism…. For the purposes of this trial, the Crossover Project is therefore synonymous with Sun Ho’s secular music career and both terms will be used interchangeably in these submissions. The Prosecution does not dispute that CHC (including the accused persons themselves, as CHC readers and members) treated the Crossover Project as being consistent with CHC’s objective of fulfilling the Great Commission.”

…Now I come back to why I have said this complainant issue, the wrongful loss issue, are tied up, and why we have been making a big issue about it.

……. Crossover is synonymous with Sun Ho’s music career. So we now have a very interesting question: If monies of CHC are used for Crossover, which is, by the prosecution’s admission, an objective of the church, where do we land on the question of wrongful loss or intent to cause wrongful loss? If we look at the prosecution’s necessary unambiguous concession, which they had to make, because that was the evidence; they can’t say anything else then basically you are saying, “You have used church money for one purpose for another”. That’s the highest their case can go. It can’t go higher than that any more.

So they are saying, “You cannot use Building Fund money for Crossover”.

… So it then becomes a matter of intent……. is part of the mission of the church, if I have not complained about it, no members of my board have complained about it and there’s ex post facto ratification, and 100 days into trail there’s still no one from the church complaining about it, then the question of dishonest intent is not proven by evidence. There might be a good argument for it and I’m sure the prosecution would argue it…. but if we come back to basics… it is quite clear there is no offence in this case.”

8. Is there sufficient evidence to proof beyond reasonable doubt that there is dishonest intent?

Sreeni: “Your Honour, if we go through the cross-examination and we look a the amateurish way this church has done things, their lack of governance, the projections that can vary between 200,000 albums to 1.5million albums in the span of two or three documents, all of that may or may not be evidence from which dishonesty can be inferred, but it certainly is not enough to support a finding beyond reasonable doubt. This comes back to the money coming back in. There are many, many cases that say that if you temporarily misappropriate money, it’s still CBT. The fact that you put it back in doesn’t help you. Actually, what those cases say is if you had taken the money out with dishonest intent, the fact that you put it back in doesn’t help you. But if you had not taken it out with dishonest intent and you put the money back in, in full, with all the interest payment of the original intent, then it would support the inference that there was no original dishonest intent.”

<<< … and other points were read…..>>

Last point was related to the duplicate charges between charges 4 to 6 and 7 to 10.

Sreeni: “… The prosecution can’t have its cake and eat it; it’s either a separate and distinct offence and step, or it becomes false because of what happened in the earlier three charges. Then I invite them to drop 7 to 10 and then we can focus on what really matters in this case.”

[Mrs Light’s remarks: For those who are interested to attend the court hearing on 25 March 2015, please note that it will start slightly later around 11.00am]

No victims, so there can't be any CBT case: Defence (ST: 24 March 2015)

Lawyer for accused argues 'fatal failure' of charge brought by prosecution
 
THERE is no case for alleging that City Harvest Church leaders had committed criminal breach of trust (CBT), simply because there are no victims, asserted Senior Counsel N. Sreenivasan yesterday.

He was addressing the court before his client, church deputy senior pastor Tan Ye Peng, took the stand as the fifth of six defendants in the long-running trial.

Tan and five other church leaders, including founding pastor Kong Hee, are accused of misusing $50 million in church funds to boost the music career of Kong's wife Ho Yeow Sun and covering this up.

Five of them have also been charged with channelling money from the church's building fund into sham bond investments in Ms Ho's management company, Xtron, and glass manufacturer Firna.

Four, including Tan, then allegedly devised transactions to clear the sham bonds from the church's accounts to mislead auditors.

Yesterday's court proceedings began with presiding judge See Kee Oon calling for a minute of silence in remembrance of former Prime Minister Lee Kuan Yew, who had died just hours before.

Mr Sreenivasan then outlined what he called the "fatal failure" of the prosecution's charge of CBT against five of the six accused, Tan among them.

"Normally when there's an offence, there is a complainant, and normally the complainant makes the FIR (First Information Report)," said the lawyer, noting that his team had been asking for this report, but to no avail.

"We've not had any prosecution witness from the church alleging that the church is a victim, so we have this amazing situation. CBT is not a victimless crime, and (we have) no victim.

"It comes back to basics, a CBT case is about wrongful loss to a victim... It's quite clear there is no offence in this case."

The prosecution charges that the church's building fund monies, made up of donations by church members towards a new church building, had been diverted to finance Ms Ho's career - an unauthorised use of the fund.

But Mr Sreenivasan said Ms Ho's music was widely acknowledged as synonymous with the church's Crossover project to evangelise through pop music, and thus an objective of the church.

There had been no intent among the church leaders to cause wrongful loss to the church, Mr Sreenivasan added, and the full amount taken out was eventually returned to the church, with interest.

"If you put the money back in, then it would support the inference that there was no original dishonesty intended," said Mr Sreenivasan.

He is expected to examine his client on the stand for the remainder of the week, after which Tan will be cross examined by the defence of his co-accused, as well as by the prosecution.

The long-running trial enters its 105th day today.
  *****************Background Story *****************

THERE'S NO VICTIM

We've not had any prosecution witness from the church alleging that the church is a victim, so we have this amazing situation. CBT is not a victimless crime, and (we have) no victim.
- Senior Counsel N. Sreenivasan

18 Mar 2015 – Chew cross-examined by DPP (Advance Rental – Part 1) (MrsLightnFriends: 18 March 2015)

Advance Rental – Part 1

Chew is charged in a conspiracy with Tan Ye Peng and Sharon Tan to commit criminal breach of trust by an agent in respect of the funds of CHC.

DPP’s case
Chew dishonestly misappropriating monies from CHC’s funds for the purpose of generating the false appearance that certain purported investments in Firna bonds had been redeemed, which was not an authorized purpose of the said funds.

The ARLA (Advance Rental Licence Agreement) is a sham device for Xtron t use the monies to purchase Firna bond, which the monies would in turn be channelled through Firna, Ultimate Asset and AMAC back to CHC to complete the round-tripping.

Today, 18 March 2015, DPP used the blackberry memo messages that was extracted from Sharon Tan’s blackberry phone to build the case.   There are 72 images extracted from the blackberry memo and some images are being redacted during Sharon’s cross-examination.   As mentioned in my blog last year the reason given by DPP for the redacted images was simply because it was not relevant to the case.

However on 30 September 2014, during Sharon re-examination, Mr Ramesh introduced the full version of the blackberry memo to re-examine Sharon and put the entire conversations in its proper context. (Sharon’s re-examination)

The purpose of the advance rental

Image 28
Sharon was talking about solving Firna by October and that being an audit point if not solved. Xtron was not mentioned.

Image 29
Eng Han said to Sharon: “I have a solution for the Xtron and Firna bonds regardless of whether we get the building by October 2009.”

Image 30
Eng Han: “It has to do with prepayment Xtron will contract with CHC to provide a minimum 5k seater every weekend for say the next 25years. Assuming a yearly rental of $4m, total is 100 million. We then discount it back at a 5 percent yield, and the discounted present value is the lump sum payment that CHC makes to Xtron.

Image 31
Xtron is free to use the money to invest in a building or whatever investment to earn a yield so that it can fulfill its commitment to CHC to secure a place.
From this lump sum, Xtron redeems the $21m bonds, it also buys over the rights from Ultimate Assets (UA) to the rights to the crossover for $17m.
Mr Chew Eng Han then goes on to say: “After spending the $38m, the leftover is invested in the building which should earn a yield of 10 percent at least and that will help Xtron’s cashflow to meets its future commitment as it pays rental for CHC.”

Image 32
Eng Han said: “We will pass a board resolution to state the reason why we do this. Because the board recognizes that it is hampered from owning a building and is trying to replicate the scenario by this contract with Xtron.”
Eng Han said: “To make it more attractive, we can insert another condition that Xtron will refund a percentage of any potential total gains it makes from this contract over the period of 25 years.”

Image 33
Eng Han: “So we try to replicate a deal that makes it as close to the scenario as if CHC owned the building.”
Eng Han: “The reason for doing this is real that CHC can’t get a building as we experienced it many times with the government bias.”

DPP: If you look at images 29 to 32, that’s where you outline your plan to use advance rental to clear the bonds.

Chew: Yes

<… questions and answers…>

DPP: Mr Chew, I put it to you that when you said to Sharon in image 29, “I have a solution for the Xtron and Firna bonds regardless of whether we get the building by then”, it is clear that the plan you then explained to her in image 30 onwards was just specifically to be able to get the Xtron and Firna bonds cleared, even though the building deal wasn’t completed yet.

Chew: Your Honour, I do not agree that it’s just specifically for redemption of the bonds, because, in subsequent images, I talk about the difficulty we had in getting a building and why the advance rental was necessary. But I don’t deny that this solution was proposed to solve two problems and one of them was the redemption of the bonds.

DPP: I put it to you that you are once again ignoring the obvious meaning of your own words in image 29.

Chew: In what way am I ignoring?

DPP: In that it’s exactly as I’ve just put to you, that it’s clear from image 29 that you were proposing a solution purely to clear the Xtron and Firna bonds at that point in time.

Chew: Your Honour, if the prosecutor wants to focus just on image 29, then of course I have to agree that in image 29 I’m just talking about the redemption of the bonds, but I think we need to look at the evidence in its whole context and look at the other images as well.

DPP: After image 29, image 30, you go on to explain the plan that you have at that point in time, which, as we’ve covered yesterday, was basically involving advance rental. Then in image 32, you say: “We will pass a board resolution to state the reason why we do this. Because the board recognizes that it is hampered from owning a building and is trying to replicate the scenario by this contract with Xtron.
 

To make it more attractive, we can insert another condition that Xtron will refund a percentage of any potential total gains it makes from this contract over the period of 25 years. So we try to replicate a deal that makes it as close to the scenario as if CHC owned the building.”

Chew: Yes, and this is what I’m referring to, your Honour. There are other slides that talks about the building itself, and what was my purpose in doing this ARLA? It was to replicate the situation as if the church owns the building.

DPP: This portion on page 32, 33, that I’ve just taken you through, continuing on to image 34, when you say you would pass a board resolution to state the reason “we do this” and “this” refers to the advance rental, the reason that was going to be explained to the board and embodied in the resolution was that because it was to allow the church to own a building through Xtron. Correct?

Chew: Yes

DPP: You don’t say, “We’re going to pass a resolution and we’ll tell the board that the advance rental is to allow Xtron to own a building on behalf of the church and also to allow us to redeem the Xtron and Firna bonds”. Correct?

Chew: In other words, you’re saying that I left out the second part, is it?

DPP: Yes

Chew: Yes, it’s not stated in there, your Honour, but, of course the intention and the natural consequence of that would be that there will be an offset and that offset was raised to the board eventually. I don’t have to say everything in these images.

DPP said that Chew intend to use the advance rental to clear the Xtron and Firna bonds regardless of whether the building comes through and intend not to tell the part about offset of the bonds to the board.

DPP: …. the commercial justification you were going to give to the board was that the advance rental was to enable Xtron to purchase the building, but that the real motive of your plan was simply to clear the Xtron and Firna bonds.

Chew: First of all, your Honour, I wasn’t planning to give a commercial justification or a cover story to the board. The board was already aware of our difficulties in securing the building if the church were to go in by itself, because of what happened in the year 2005, when we went for the plot of land at Bugis. It’s not a cover story to the board; the board knows this is a real problem. And, number two, my intention was not to hide the second motivation, to redeem the bonds, and, as the evidence has already shown in handwritten notes of Sharon Tan, it was spelt out and explained to the board simultaneously the advance rental, the reasons for it as well as the offset. There was never any intention to hide the second reason.

DPP: I put it to you that it was your intention to make use of the advance rental as an excuse to provide funds to redeem the Xtron and Firna bonds, but to then only portray to the board that the advance rental was for Xtron to purchase a building on behalf of the church.

Chew: There are actually two puts in there. The first put is my intention to make use of advance rental as excuse to provide funds to redeem the bonds. Your Honour, I don’t deny the advance rental, there was a plan to use it to offset, after checking with the board and the auditor.
 

I don’t call it excuse; to me, it was just an exercise that had to be passed through first the auditors, which I believe at that time was approved by the auditors, and then to be told to the board as well. It’s not an excuse. It’s dealing with an official audit issue.
 

Number two, the second put is that I wanted to portray to the board that advance rental was for Xtron to purchase a building, and that was the only thing that I was wanting to portray. But whoever explained it to the board, it looks from the evidence it was TYP did explain both parts. Why we need to put advance rental to Xtron, and then part of the advance rental will be offset, your Honour. I don’t see how was it hidden from the board.

<<< continue with images from 38 till 69 and Sharon’s hand written notes – Part 2 >>>>

17 Mar 2015 – Chew cross-examined by DPP (AM session) (MrsLightnFriends: 18 March 2015)

On 17 March 2015, DPP Christopher Ong continued to cross-examine Chew on the Firna Bonds. The cross-examination on Firna Bonds ended around 4pm today. (Total around 8man-hours expended from yesterday till today) DPP estimated his cross-examination would end this Thursday. Chew estimated he would take half a day for his re-examination on Friday. Therefore Tan Ye Peng will be on the stand next Monday( 23 Mar 2015).

A brief recap of what was cross-examined on 16 March 2015 – PM session

The purpose of the Firna Bond
 

The real use of the proceeds of the Firna Bond was to finance Sun Ho’s music career and not for Firna’s general working capital as stated in the Bond Subscription Agreement.

Chew explained that the reason why it went through Firna is because, in his mind, he is thinking Firna will be the party, the entity, the business that has an obligation to pay back the church. The intention was really for Firna to hold that obligation to the church, although the ultimate objective was to fund the Crossover. The obligation is not on Ultimate Asset, but Wahju had an obligation through the personal guarantee.

Chew said, “The borrower is not free to deal with the proceeds according to their own needs. It has to be pre-agreed, your Honour, as it was with Xtron and Firna. The lender would normally specify right at the beginning the purpose of the loan. So whether or not it’s built in the BSA is a different issue, your Honour. Whether it’s verbal or written, the borrower would be constrained in the way he would use the monies. No lender gives money out to a borrower without telling what he can use it for or what he cannot use it for.

DPP: So, for the Firna bonds, the purpose or the use of proceeds provided for was that it was for Firna’s general working capital, for the CHC Firna bonds. Correct?

Chew: Yes, I think that was what was stated in the BSA, BUT that was not it.

DPP: You are saying that there was an additional verbal limitation imposed upon.

Chew: Yes

Chew further explained that Wahju had to withdraw the money from Firna and then use part of it to fund the Crossover.

DPP: Was part of the verbal agreement also that, insofar as the proceeds were to be used to fund Sun Ho’s music career, the funds would continue to be controlled by the Crossover team?

Chew: Yes, it was given, actually, your Honour, that for him to invest in the Crossover, it would be managed by Kong Hee.

<… Questions and answers…>

DPP: The Bond Subscription Agreement is very clear. CHC is going to purchase Firna bonds, the proceeds are supposed to be Firna’s general working capital. All right? So you can’t be saying that the proceeds of the bonds were meant to finance Sun Ho’s music career. In fact, earlier, you were quite clear in saying that that is not the case. The Firna bonds proceeds were put into Firna and stayed there; Wahju withdrew his own money and used it to fund Sun Ho’s music career. That’s your position, right?

Chew: Yes.

DPP: Are you now telling us that this bond agreement between CHC and Firna not only involved a term that was written into the agreement about how the bond proceeds were to be used, the bond transaction also included a limitation on how Wahju was subsequently allowed to use his own money that he withdrew once the bond proceeds came in?

Chew: Yes. This was an unwritten agreement.

DPP: This verbal agreement that you are saying existed isn’t over the bond proceeds at all, according to you. This is over Wahju’s own money.

Chew said, “ ….. Firna doesn’t have money unless City Harvest funds it. But money is fungible…. it is not his evidence that he wants to be so strict about this that, this is not City Harvest’s money or it’s not Firna money, it’s Wahju’s own money that went to the Crossover…. His defence is based on this simple premise that we expected the album to make money. However this is structured, whether it’s structured through Firna bonds or direct into UA or even direct to JHM, is really not relevant, because, in the end, it’s what’s in the minds of each of the six, or the four, whether we expected JHM to deliver the results for the album sales to come back in and then to repay it. So I’m having a problem answering this question, because I don’t know from what angle the prosecution is coming from. I just want to make it clear that it is not my defence. I’m not going to stress or emphasize whether it is Wahju’s own money or Firna’s money. I hope this is clear.”

<… Questions and answers…>

DPP: Witness, I put it to you that the Firna BSA was not a genuine investment but merely set up as a conduit to channel Building Fund to finance Sun Ho’s music career under the guise of an investment.

Chew: Your Honour, can I clarify this put first, before I answer? So is the prosecution saying that if monies are being channeled through a certain entity, or rather, if building funds is being channeled through certain entities to finance Sun Ho’s music career, then it’s a foregone conclusion it’s a sham investment? Is that all it takes for this case? Because monies are channeled through a certain entity and it doesn’t go directly into Crossover and it goes into Sun Ho’s music career, is it the prosecution’s case that that is enough to justify that this is a sham?

DPP: No, Mr Chew. I’m saying that the Firna bond investment was never an actual investment into Firna, in the sense that you never intended to create a genuine legal obligation with the objective of getting investment returns from Firna, that it was just an excuse to channel the Building Fund to finance Sun Ho’s music career.

Chew: Your Honour, I disagree because I’ve said many times that the structure of investment doesn’t invalidate the investment, and just because monies are channeled through Firna via UA into JHM, that is not enough evidence, your Honour, that we didn’t expect returns. In the end, we did expect returns, and if not for disclosure issue, City Harvest could have well invested directly in JHM and bypass all these entities. And the crux of the whole analysis is still this: Did we expect the album to make money? Just because we channel it through Firna and UA does not invalidate or make it a sham investment and does not mean that we didn’t expect monies to come back. This whole channeling was done because of the disclosure issue.

A brief recap of what was cross-examined on 17 March 2015 – AM Session.

DPP referred to an email written by Serina Wee instructing Wahju to repay the loan from the proceeds of the Firna bonds.

DPP: You were copied in this email, so you would have seen this instruction, but you didn’t raise any concerns about this. Correct?

Chew: No, I didn’t, your Honour, because I assumed this was related to the Crossover, and, in any case, this is Wahju’s personal monies and, as part of the agreement, if he can use it to return the loan, I don’t see anything wrong with it, your Honour.

DPP: The agreement that you mentioned previously, that he would use the bond proceeds to finance Sun Ho’s music career, also included other uses of funds. Correct?

Chew: Your Honour, this, to me, was a indirect use of the Crossover, because I believe there were other loans. They were all bridging loans to help to finance the Crossover, pending this bond proceeds coming in. For instance, actually, on the next page, point number 4, $1.135m to Ultimate Assets; under sub-point (B) number 1. There is a $700,000 return loan to Chan Kok Yew and this was Chan Kok Yew lending money for the album expenses, pending the bond proceeds coming in. So when I saw all this, I thought this was just bridging, using the bond proceeds now to pay off loans that were taken in the short term to pay for the album expenses and I didn’t see anything wrong with it.

<… Questions and answers…>

DPP: Look at item 2, the $674,000 that he is being instructed to transfer to the multipurpose account. Do you know what this is about?

Chew: It says there, actually, it’s for the miscellaneous expenses relating to the album, your Honour. So it is related to the album as well.

DPP: That is where Serina is explaining to him what the MPA is used for and then she says: “As such, we do need the S$674,700 directed to this account rather than to Xtron. I believe TYP has spoken to you before about this”. But look at the part in parenthesis: “S$674,700 (this was your sponsorship giving to Xtron in 2003 and last year in Dec, Xtron “refund” the same amount to you)”  Do you know what that part is about?
 

Chew: No, your Honour, I wasn’t involved in this part as well.

<… Questions and answers…>

DPP referred to an email exhibit. The context of this email is about Wahju would face a margin call and the Crossover funds was stuck in the bank.

Wahju Hanafi wrotes:

Dear Eng Han,cc Ps Tan,
Sorry that I have to forward you this email to show what actually happened, I’m trying to get I/C issued asap next week so UBS can release all your fund.

DPP further cross-examined Chew on the usage of the word “your” money.

DPP: So it would appear that, from Wahju’s point of view, these monies didn’t belong to him; he considered them “your” money, and that was referring to the Crossover team. Correct?

Chew: It was his money that he agreed to invest into the Crossover and that’s why he says it’s our money not his, because the agreement was that his money was to be put into the album.

DPP: But you agree that he doesn’t say, “I’m sorry, my money is stuck so I can’t give it to you to use for the Crossover”? He simply considers it your money, if it doesn’t belong to him. Correct?

Chew: I can’t read into his mind, your Honour.

DPP: You can read his words. Correct?

Chew: I can read his words, but I think this is really a play of words right now, your Honour.

Counsel Seah who is representing Sharon Tan stood up.
 

Seah: Your Honour, I would like to point out… Mr Wahju Hanafi had taken a position contrary to what my learned friend is putting to the witness. I’m not sure whether we should ask the witness to leave, but I’m happy to take your Honour to that portion of the cross-examination of Mr Hanafi.

DPP: Your Honour, I think it was quite clear from the entirety of the evidence of Mr Hanafi that the prosecution did not accept many aspects of his testimony and he was confronted with the opposing evidence, which basically supported the position that we are obviously now taking in respect of what was really going on with the Firna proceeds. I think all that would have been made clear in our submissions at the close of the prosecution’s case.

Judge said Chew is capable of responding in the appropriate way.

Chew: Your Honour… my position is that, as far as me and Wahju are concerned, that Wahju knew that when money went to Firna, that it was Firna’s money that when he withdrew the money from Firna, that it was his money, and he knew that he had an obligation then put his money into the album, and that’s why now he says, “It’s your money”. The other thing is that he’s an Indonesian, as Kong Hee has said before. Sometimes they are not very good at English, your Honour.
 

And the other thing I want to ask your Honour is this: I’m not a lawyer, but I’ve got a question. Wahju Hanafi is the prosecutor’s witness and they’re rejecting part of his evidence. How does this work your Honour? Can they just take part of his evidence and accept it and use it against us and reject the other evidence?

Judge: If you want to launch into a submission on that, you can do that at a later stage, but not now. All right?

A brief recap of what Wahju Hanafi has said last year.

DPP questioned Wahju why he said “your fund”. Wahju explained that “your fund” refers to “their portion” that he had promised to sponsor them.

Wahju: Again, I had just like to remind you that I have another $7m from Papua New Guinea that will come in and I can either use the one from the Firna or I can use the one from PNG. There is actually a $15m money going around at that time. So whether I’m using the Firna one or I’m using my own money from PNG you know, it’s one way or the other, it all goes to the same account.
DPP asked be it $15m from PGA or the proceeds under the Firna bond, these monies were considered your money or someone else’s money.
Wahju replied is his money.
DPP:  Right. So if the PNG $15m and the Firna bond money proceed sitting in that UBS account were your money, why is it that you’re stating here “your fund”, meaning that it’s not your fund?
Wahju: “Your fund” can means that it is your portion that I have promised you.

<… Questions and answers…>

DPP: That is why, when I show you an email like this, where he refers to the funds as “your fund”, you are saying that he’s being imprecise in his language, not using English properly and that just calling it “your fund” doesn’t really reflect the reality that it was actually Wahju’s funds that he was providing willingly. Correct?

Chew: Sorry, I don’t get your exact question.

DPP: To put it more simply, you are saying that when Wahju says “your fund” here, he’s being inaccurate and imprecise in his description of what these funds really are. Correct?

Chew: He’s just being very casual, your Honour, with his words, and, actually, I don’t see anything wrong with him saying, “It’s your fund”, because, as part of our agreement, it becomes our fund, it becomes the Crossover fund…… because, rightfully, it is his money, your Honour.

DPP: I put it to you that, when in your explanation for Wahju’s use of the term “your fund” in this email, you are not for the first time during your cross-examination trying to put a different meaning on words in an email that actually have a very obvious and clear meaning.

Chew: Your Honour, I disagree and I would say that, in fact, it’s the prosecutor who is putting a different meaning on the words which are obvious to me.

DPP referred to another email exhibit. E-661 dated 13 Nov 2008. In this email, Serina informs Kong Hee and Tan Ye Peng that Wahju is instructing UBS to make a transfer to Justin Herz the next day. Serina Wee forwarded the email to Chew.

Chew replied to her:
How come we are not channeling our money through his DBS account.

DPP: What did you mean when you said “Channelling our money through his DBS account”?

Chew: Wiring the money.

DPP: So you were just using the word “channeling” to refer to the act of transmitting the money?

Chew: Yes

DPP: I put it to you that, once again, you are trying to give a different meaning to your own words now that are very clear, because when you say “channelling” here. It’s clear that what you mean is that the money was just being passed through Firna under the guise of the bonds.

Chew: Your Honour, I don’t know what the prosecutor is coming at, but I guess the prosecutor is saying that the word “channelling” is a dirty word, that the moment someone uses the word “channelling”, it means there’s a sham, or the word “conduit”. I’ve said in my EIC that these words are even used in the financial markets, on financial market printouts, publications, conduits, channelling they’re being used. Those terms are being used in the markets. When I use these words “channelling”, it has no connotation of shams or scams or dishonestly, your Honour. It is a common term. I’ve no qualms about using the word “channelling” or “conduits” and to me, yes, even if money passes through Firna, to UA, to JHM, and even if I use the word “channel”, it doesn’t anything, your Honour, because, as I’ve said, this is just a structure to achieve an ends which is an investment to the album, and that channelling, or conduit was done to achieve certain objectives, which is to solve certain constraints that are in the way of achieving the investment.

DPP: Mr Chew, from what you’ve just said I think it is very clear, the Firna bonds were never an investment in Firna itself. Correct?

Chew: No, your Honour.

<… Questions and answers…>

DPP: Basically, you didn’t want to mix up the Crossover money with Wahju’s own money which was burdened with his financial situation. Correct?

Chew: Yes, because that was part of the deal. There’s a certain portion of his money that is supposed to go over Crossover and become the Crossover money.

<… Questions and answers…>

DPP: Basically, the intention was that the money drawn down under the Firna bonds was supposed to go directly from the church to the Crossover fund to be used, but, unfortunately, it got stuck with Wahju. Correct?

Chew: No, the money drawn under Firna bonds wasn’t supposed to go directly from the church to Crossover. I think you made a mistake there. It doesn’t go directly from the church.

DPP: No, I said directly from the church to the Crossover fund it is there, actually.

Chew: It goes from the church to Firna, then Firna to UA to the Crossover fund.

 <… Questions and answers…>

DPP: But anyone else reading the Firna Bond Subscription Agreement, but without the additional knowledge that the four of you, and John Lam also knew, the five of you had, would have thought that any CHC funds used to invest in the Firna bonds were actually going to be applied as Firna’s working capital, because that’s what it says in the BSA. Correct?

Chew: Beside the five of us, Foong Daw Ching would have known as well, and Christina Ng knew as well.

<… Questions and answers…>

The repayment of the Firna Bond

Chew said that the first line of repayment comes from Firna, because it’s Firna that owes the legal obligation.

DPP: Sorry, Mr Chew. Is it the first line or is it the last line of repayment?

Chew: Legally, it’s the first line, your Honour. When I say it’s first line, I’ll talking about the legal aspect, that, even if the album fails, Firna has to repay the church, because you can’t erase the debt.

DPP: You see, you have mentioned on a few occasions already that there were many ways in which the Firna bonds could be repaid. Can you tell us in what order were you relying on these possible options for the Firna bonds to be repaid?

<… Questions and answers…>

DPP: To be clear, from your point of view, the substance of it was the first line of repayment is album profits; the second line of repayment is the Crossover team finding funds to repay, if the album flops through no fault of Wahju’s and then the last line would be turning to Firna and Wahju. Correct?

Chew: Yes, and I would say the second line of repayment has the word “concurrently” with the third line, which is Wahju himself, because the second line, we are not sure how strong we are anyway, whether we’ll be able to get the funds, so we have to work simultaneously with Wahju to get the funds if the album flops.

<… Questions and answers…>

DPP: So, really, there were two layers of borrowing going on. There is Firna borrowing from the church in the form of the CHC Firna bond, or Firna borrowing from Xtron in the form of Xtron Firna bonds. Then, below that, there is this further borrowing of Wahju borrowing from the Crossover fund.

Chew: Yes.

DPP: This second layer of borrowing, the internal accounting, as you refer to it, is only known to yourself, Serina, Ye Peng, Kong Hee and Wahju himself. Correct?

Chew: Yes

DPP: Did John Lam know all about it?

Chew: I didn’t think so

DPP: Did Foong Daw Ching and Christina Ng know about it?

Chew: No

DPP: Even if we take your evidence at its highest, what they knew was that the Firna bonds were meant to for Wahju to use the money to finance Sun Ho’s music career. They didn’t know about all these things that happened along the way. Correct?

Chew: Yes

<questions and answers>

DPP: It had to be done that way, because you couldn’t simply transfer out money from the Building Fund and put it into, say, a bank account set up by the Crossover item. Correct? That wouldn’t be a proper use of the Building Fund.

Chew: I disagree, your Honour. I think I’ve said several times in my EIC, even if the Building Fund had gone directly to JHM to invest into the album, that would be a proper use of the Building Fund because it is an investment. How we structured it was affected by, firstly, Roland Poon, and then that statement by Kong Hee that no church funds had been used, and then that decision by him not for the church to fund it directly. Not because he thought it was wrong, or, rather, I thought that he didn’t think it was wrong, but because he wanted to avoid public scrutiny, backlash, internet criticism, derailing the project. So, in the end, your Honour, we ended up doing these bonds, Xtron bonds, Firna bonds, advance rental because a choice was made, a decision was made to avoid scrutiny and unnecessary, baseless accusations. And that’s why I came in to help put in the structure, your Honour. But now the prosecution’s case is the other way around, as in, we knew it’s a sham bond and therefore we came up with the structure. But that’s not how it happened. If we trace back through history, your Honour, from 2002 to 2003, where Roland Poon Hit the press, that set a course for me to come in and structure it in such a way that we don’t get another backlash, another baseless accusation thrown at us through the press.  We didn’t come up with the bonds because we think it’s a sham investment. We came up with the bonds because we needed to avoid this project getting derailed. This is a total opposite scenario, your Honour, from what the prosecutor is saying.

So my answer is: if Kong Hee wasn’t afraid of public backlash, I would have said, “Investment straight into JHM”. Building Fund goes to JHM, and just make sure that we track the funds properly and Justin doesn’t mismanage it. We launch the album, the money comes back, it goes straight back from JHM, back to the Building Fund, to the church, and that would have been a valid investment.

 <questions and answers>

How Firna interest payments were paid for?

DPP: So, if Firna couldn’t pay the bond interest, because there were no album profit, you are not going to make Wahju pay, you’re not going to make Firna pay. Neither is the Crossover Project going to find money from elsewhere to give to Wahju so that the church gets its interest returns. Instead, the church pays itself interest. Correct?

Chew: Yes.

DPP: Mr Chew, you agree that the plan was to use church funds to enable Firna to make its interest payments to the church. Correct?

Chew: Yes

DPP: I put it to you that the fact that you, Serina and Ye Peng were planning to use church funds to make interest payments that Firna was supposed to be making is evidence that the bonds were actually a sham, because Firna was not under a genuine legal obligation to pay the interest.

Chew: I disagree, your Honour, and I already said that, if we get Firna to draw more bonds to pay interest, it has even more legal obligations in terms of dollar amount to repay back. And also this interest payment thing, in the email that the prosecutor showed me, was always a plan for the future, and, number two, it was needed because of the delay in the album launch.  Again, I would emphasize again, your Honour, many of this solutions or structure came out because of unanticipated problem that arose.  It’s not the other way around.  It’s not that we structured it because we know it’s a sham.  It’s problems arose and we had to deal with those problems.  That’s all, your Honour.

DPP: These problems arose because when you entered into these sham transactions, you really didn’t care about fulfilling the legal obligations embodied in the transactions themselves because you were, instead, looking at the Crossover profits, whenever they came in, to put back all the money you had taken. Correct?

Chew: I’m sorry, you’re saying that I’m looking at the Crossover profits to repay the bonds, right? Isn’t that what it’s all about?  This is what an investment is all about.  Yes, I was looking for the Crossover profits to come in eventually to repay the bonds, and that’s why I consider it an investment, your Honour.

DPP: But, as you said in the previous tranche, if there are delays in the album profits, then what you were planning to do was to keep coming up with interim solutions until the album profits really came through. Correct?

Chew: Yes, your Honour.  I think that’s the right thing to do right? If challenges come up, we have to come up with solutions to overcome these challenges until the end objective comes to pass.  I don’t see what is so sham or why does it make it a sham, your Honour.

<…..>

Chew: …I’d just like to add on about the previous put.  If delaying the repayment and using more bonds to pay the interest makes it a sham, then I’ll say that all the US Treasury bonds are sham as well.  That’s what the US Treasury has been doing for decades, your Honour.  The debt is ballooning up every single year.  It’s $18 trillion right now.  Is the US Treasury bond a sham as well?

DPP: If you were to buy a US Treasury bond, you are basically banking on the security of the US economy itself. Correct?

Chew: No.

DPP: When you buy a US Treasury bond, you do so, as you’ve said, knowing that the US continues to issue debt regularly, basically, as you put it and the debt keeps ballooning, and it’s a risk you go into with your eyes open, because, presumably, you understand the US Treasury market. Correct?

Chew: I understand the risk on US Treasury bonds.  I also understand the risk on the Crossover. They’re not much different, your Honour.  Both have risk.  Both will come across challenges.

DPP: When you buy a US Treasury bond, you don’t intend that if the US cannot repay you, you will give the US the money to repay yourself. Correct?

Chew: Oh, your Honour, that’s what’s happening right now.  The China Central Bank is the largest holder of US Treasury bonds and when the bonds that it’s holding comes to mature, the US Treasury is going to issue new bonds and it’s the same China Central Bank that’s going to buy the new bonds and the proceeds on the new bonds will be used to pay off the old bonds, It’s happening.

DPP: Witness, let’s move on to E-154.

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