6 May 2015 -Exchanges between the SC, DPP and Chew (7 May 2015: MrsLightnFriends)

There was some short circuit yesterday after DPP asked Serina if the investments of the Building Fund were supposed to be for financial returns only.

Serina cross-examined by DPP on 6 May 2015

DPP: “Would you agree that investments of the Building Fund were supposed to be for financial returns only, essentially to preserve the value of the Building Fund while it was not being used, or to maximize the value of the Building Fund?”

Serina: “Your Honour, I don’t agree that it is for financial returns only. There has to be financial returns but it might not be the only reason.”

The above question raised by the prosecutor had sparked off some exchanges between the Senior Counsel Maniam, Senior Counsel Sreeni, who is acting for co-accused Tan Ye Peng, co-accused Mr Chew Eng Han who has no counsel, DPP Christopher Ong and the Judge.

Before this question was asked, we were looking at an email. The context of this email was about the auditors had made an observation, that the donations of the Building Fund had been used for purposes other than the purposes of constructing a new building or relating to the maintenance of the church building.

Recount of 6 May exchanges.
SC Maniam: Your Honour, before my learned friend goes there, if I could just ask the prosecution to clarify if it is now arguing that investments of the Building Fund were supposed to be for financial returns only. The reason I’m asking that is that Mr Ong, in his cross-examination of Mr Chew, had taken exactly the opposite position. If there’s a change in the prosecution’s case, I’d like to know that.

DPP: Can you please refer me to the particular point?

SC Maniam: I’ll tell your Honour what the point was, and then I’ll give your Honour the reference when I’ve found it. Mr Chew had asked Mr Ong to clarify… Mr Ong had clarified that the prosecution was saying that the so-called investments in this case were not investments at all. They were not saying that they were somehow invalid dual purpose investment, they were not investments at all.
 

I may need a bit of time to find that reference, but I will find it and I will provide it to your Honour. I just want to know if the prosecution is now saying that the only valid investments permitted under the Building Fund would be investments for financial return only. I’m asking that because that’s not been put to any of the previous accused.

DPP: Your Honour, what my learned friend had just described, just from his description of what I’m supposed to have clarified, I think it’s actually not quite what he reads it to be.
 

Mr Chew, as I recall it, asked whether dual purpose investments would not be valid investments and my reply I think it is quite clear from the way Mr Maniam has put it was that our case is these so-called investments into Xtron, into Firna were not investments for maximizing return, nor were they dual purpose investments. They were not investments at all. This is the position that we’ve consistently taken. So I think Mr Maniam’s objection really conflates two things.
 

1) What we say the so-called investments really were and 

2) What the authorized uses of the Building Fund were
 

If Mr Maniam were to let me continue with the questions I was going to ask, what I’m going to refer the witness to is what the church itself represented the investments for and what their own internal policy, for example, stated the investments were supposed to be for.
 

I’m not sure whether your Honour is with me, but I don’t think it’s correct or accurate to say we had taken the position that dual purpose investments were a proper form of investing the Building Fund, because that was not the context in which I had given my clarification regarding what the prosecution was saying the investments are.

Judge: I don’t think we should be looking at the issue of whether a dual purpose investment is something that might be recognized. What Mr Ong has been asking Ms Wee, I understand, is really about what the authorized purpose of the Building Fund would be for as far as investments go.
 

Mr Chew, you were going to ask something. It’s just that I think when, Mr Maniam, you raised this point, this is in relation to the question specifically that Mr Ong had brought up, which is, “Would you agree that investments of the Buiding Fund were supposed to be for financial returns only?”

Mr Maniam: Yes your Honour.

Judge: So I think that is something you are entitled to point out. If it has not been raised with other witnesses so far, and if this is not a position that you feel has been clarified with the other witnesses, then I think it is something that perhaps I don’t know if Mr Ong’s further questions will bring us a bit more clarity on this.

DPP: That is, I think, where, with due respect, Mr Maniam may have jumped the gun. I think he took it that I was putting to the witness that, in fact, the Building Fund was only to be invested for financial returns. But, as I’ve mentioned, this was actually the first step in a series of questions to look at what the church actually said the investments of the Building Fund were for.

Chew: Your Honour, from my recollection, actually I clarified this issue, and I had the same impression as Mr Maniam, that the prosecution was accepting that dual motive investments were investments. So if the prosecution is not putting it to Serina right now, I think they need to make it clear that it’s not a put, and that they are not taking the stand that it’s wrong to invest for more than just financial returns. Because contrary to what the prosecution is saying, your Honour, it’s not been made very clear, actually. There’s been many rounds of confusion so far.

DPP: Your Honour, I think we’ve consistently referred to the investments, at least from our point of view, as sham investment, which makes it clear that we don’t believe they were investments, or we don’t see them as investments at all.

Judge: Just to understand that point in the context of what both Mr Maniam and Mr Chew have said, you’re basically saying whatever the purpose was, it was not a valid purpose?

DPP: Yes, your Honour.
…..

DPP: We don’t accept that these were dual purpose investments. We don’t accept that they were investments to maximize returns. In short, we don’t accept that they were investments at all. So, really, the question of whether a dual purpose investment would be permissible is moot in the context of our case.

Maniam: Your Honour, I’m happy to fight that case, which is the prosecution says these are not investments at all. I just didn’t want to find out that at the end I have to fight a second case as well, which is the prosecution comes and says that, even if they were investments because there was a purpose other than financial return, that was an unauthorized purpose and the charge is mad out. I just wanted to know that we have one case to fight and not two.

 ……

Sreeni: Your Honour, with respect, I have been trying to avoid standing up. Your Honour has hit the nail on the head. Your Honour has made the point: is it an authorized purpose of the building. That tracks the wording in the charge. If the prosecution says factually the only case they will argue is that it is entirely sham, fine. I’ll be quite happy with the bar being set that high. But when Ms Wee was questioned, they said financial purpose only. Now our case, the defence case and it really doesn’t matter what the prosecution says; it’s what your Honour is going to answer at the end of the case is that it can be dual purpose and it’s still an authorized purpose of the fund. That’s our case. When the prosecution uses the word “financial return only”, then that is a third permutation. So if my learned friend confirms, on the record, the third permutation is off the table, meaning it’s either dual purpose and we can argue whether that’s authorized or not, or entirely a sham in which case there’s no financial return component entirely, fine. That’s the way we have understood the case so far: it’s one of these two scenarios.

Can my learned friend confirm that they are not saying that an unauthorized use must be for financial returns only? …. the use of the word “only”.

DPP: Your Honour, I can confirm that their understanding that what we are saying is that these were sham investments, not dual purpose, not for financial gain, is the case that they have to fight, your Honour.

Sreeni: Sorry, your Honour that’s not the question. The question is “what would a dual purpose investment be an authorized use?” It is no point repeating, “It’s a sham, it’s a sham, it’s a sham”. That’s the wrong question, your Honour.

Judge: But Mr Ong has said that they don’t accept that these were dual purpose investments.

Sreeni: Yes, but your Honour might after assessing the evidence. So in this case, we need to know what is the prosecution’s case. Is that good enough for an acquittal, or are they then going to say it must be financial returns only? Because when we examine witnesses, and I have been making an nuisance of myself by saying, “Please, put your case”. And at the end of the sixth accused, we are having three accused persons not being shown what the case is, at least three.

DPP: Your Honour, all this had been sparked off because Mr Maniam became alarmed when I asked the question that was really meant to be a setup for the remaining questions. Unfortunately,…… Mr Sreeni has made reference to us to ask us to put our case. I think we have put our case to each and every accused person so far that these are sham investments. They are not dual purpose, they are not purely for financial return, they are not for investment at all.

Judge: If I may just add a point, as a matter of observation, obviously when the defence was called, it was not on the premise that these were dual purpose investments which were somehow not authorized.

DPP: .. perhaps if I can now seek clarification… is it in fact the defence case and here, I’m referring to all the defence, all the accused person, well, with the exception of Ms Sharon Tan, who is not involved in the bond charges. Is it their position that these were all along dual purpose investments? Is that the essence of their defence?

Sreeni: Your Honour, I really have a problem when they don’t tell me what is their case. They want me to answer what’s the defence. I have a problem with that. They’ve got the burden of proof all inverted. You put your case to our clients when they are on the stand, and our clients will answer your question honestly and truthfully.   So that’s the way it’s done. Please, my learned friend, that’s why I said, “Please put it to our clients”. If you want to call my client back, then you can put it to him.

Chew: Your Honour, I’m more than happy to state my defence because I think I’ve been very clear. It was a dual motive investment right from the start and that’s why I brought up examples about RUL, about the clause in the constitution that says that nothing shall be done solely for financial profits. So I think in my instance, my case is very clear. It is dual motive and it’s an authorized purpose.

DPP: I thank Mr Chew for his clarity.

Maniam: Your Honour, my client has given evidence-in-chief for three and a half days. She has talked about her understanding of an investment. I don’t want to steal her thunder of preempt what Mr Ong may or may not put to her, so I will let him explore that.

Judge: Mr Ong, I’m sure you’ve heard what different accused persons have said in their own defence respectively, so I don’t wish to insist that counsel tell you what their defence is. All right?

Court evidence

Constitution
Paragraph 9 of the constitution “..nothing shall be done solely for commercial reasons or solely for profit”

Investment Policy
To maximize the return from surplus Building Fund (BF) not committed to the building expenditure, this is to maintain the purchasing power of the surplus against the increase in construction and property cost over the short-term future.

The target is to attempt to achieve a minimum 3.25% return on investment

CHC EGM of 7 July 2007
In the EGM Kong Hee says: “We need to invest why because timing of the building project is uncertain and we earn more that just pumping in the bank. Remember Luke 19:23 Jesus says why didn’t you deposit the money in the bank so I could at least get some interest on it so we want to maximize our returns to partially hedge against building and land prices.

The court will look at the totality of the evidence and that includes the documentary evidence.  The hearing continues.