In 1993, Malaysia's equivalent provision on criminal breach of trust (CBT) as an agent was amended by Parliament, with the currently contentious phrase "in the way of his business" replaced with "in his capacity".
This was cited by the defence yesterday as it supported the Singapore High Court's judgment that it was up to Parliament to amend the law if there was a gap to be plugged regarding the definition of agent.
In April, the majority of a three-judge High Court panel ruled that the six people convicted of misappropriating millions in City Harvest Church funds can be punished under only plain CBT and not CBT as agents, which carries a heavier punishment.
The court agreed that it was "intuitively unsatisfactory" that directors, who occupy positions of power, trust and responsibility, would be liable for only plain CBT, while an employee would be liable for the more aggravated offence of CBT as a servant.
"This does not, however, mean that we can ignore the wording of the section," the High Court had said, adding that the task of rewriting the law should be left to Parliament.
Yesterday, Senior Counsel N. Sreenivasan, who acts for Tan Ye Peng, noted that the prosecution is asking the gap to be "filled up by judicial construction".
He said that, despite being aware of "how badly its interpretation will meet with normal instincts", the High Court decided to give the provision its literal meaning and "not to bring in what you want a statute to be".
He said the prosecution's submissions "would make a wonderful second reading speech for amendments to (Section) 409 but it is not what 409 means".
Later, Judge of Appeal Andrew Phang asked Deputy Attorney- General Hri Kumar Nair which is the appropriate institution to determine the issue.
"We can go the Malaysian way or the Indian way," replied Mr Nair.
In a landmark case cited by the prosecution to support its arguments, the Indian Supreme Court rejected the argument that "agent" under CBT law has to be a professional agent. The phrase "in the way of his business" also remains in the relevant provision in the Indian Penal Code.
"A Singapore court will go the Singapore way," said Justice Phang, to laughter in the courtroom. He added: "We have to be grounded in legal principles. We can't amend the statutes."
Selina Lum
