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.
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.”
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]
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