City Harvest case

High Court panel's decision final: Judge

He explains why ex-fund manager's bid to refer legal issues to apex court was dismissed

The top court has made clear that when a three-judge panel is specially convened to hear a Magistrate's Appeal in the High Court, such as in the City Harvest Church (CHC) case, its decision is to be taken as "final and authoritative".

No permission will therefore be given to pursue a further criminal reference to the Court of Appeal unless there are exceptional circumstances, it ruled.

"This approach is justified because a three-judge Coram is a de facto Court of Appeal and is convened precisely to deal with important questions affecting the public interest which require detailed examination," said Judge of Appeal Andrew Phang in decision grounds on behalf of the Court of Appeal on Wednesday.

He was explaining why the Court of Appeal, which included Judge of Appeal Judith Prakash and Justice Quentin Loh, dismissed in July the bid by former CHC fund manager Chew Eng Han for permission to refer legal questions to it.

Chew, 56, was one of six found guilty of misusing millions of dollars in church money. In April, the jail terms of all six individuals were cut after the High Court reduced their criminal breach of trust charge to a less serious one on appeal. As a result, their initial jail terms of between 21 months and eight years were reduced to between seven months and 3½ years.

But Chew, arguing his own case, applied for permission to refer questions of law of public interest to the apex court. He raised 10 broad issues, including the question of whether there can then be misappropriation and dishonesty under circumstances in which money is not taken for personal use, but handled for the owner's use.

Deputy Attorney-General Hri Kumar Nair, who opposed his application, argued he had not raised novel points of law, among other things.

The court found the questions which Chew sought to refer to the Court of Appeal had already been scrutinised by the district court and the High Court, whose judgments spanned some 570 pages.

Even a "cursory reading of the questions raised by Chew showed the questions he sought to refer were either (impermissible) attempts to reopen and/or change established principles of law in order to escape personal liability for his actions, or were simply questions of fact which could not, by any stretch of the imagination, be characterised as questions of law", said the court.

Justice Phang found the application was a bid to "dress up" such challenges to established principles and findings as novel questions of public interest arising from the High Court's decision: "in substance and effect, a further (and backdoor) appeal on the substantive merits".

The court stressed only in exceptional situations would a party to a criminal matter be allowed to bring a criminal reference to the Court of Appeal to reconsider a question decided by a three-judge panel of the High Court. Otherwise, duplication of efforts would result, undermining the very reason that the three-judge panel was convened in the first place, wrote Justice Phang.

The court noted that the three-judge panel of the High Court does not have the same powers of the Court of Appeal and if, therefore, there is a question of law of public interest posed in the case which only the Court of Appeal can deal with, then leave for the criminal reference should be granted, provided the other conditions are met.

Rejecting Chew's application as "ill-considered and wholly unmeritorious", the court said: "This was a case where the accused persons clandestinely applied church donations collected from CHC's members to advance an aim that was entirely outside the scope of the authorised uses of the donations.

"Both the judge and the High Court had no doubt that (Chew), as the primary financial architect of these transactions, was heavily involved and indeed instrumental in this illegal enterprise."

A version of this article appeared in the print edition of The Straits Times on October 13, 2017, with the headline 'High Court panel's decision final: Judge '. Print Edition | Subscribe