Highlights of the decision

Agent or not?

The Court of Appeal ruled the term "agent" in Section 409 of the Penal Code, which provides for enhanced punishment for criminal breach of trust (CBT) for certain classes of people, applies to someone who is a professional agent.

As such, company directors and key officers of charities, such as the six found guilty in the City Harvest Church case, could not be convicted under Section 409.

The court said its conclusion was supported by the language and structure of the provision itself. There is also a coherent and well-established line of authority, tracing back almost two centuries, that an "agent" under Section 409 must be an individual who is in the business of providing agency services.

Ruling's ramifications

For the past 40 years, company directors who commit CBT have been charged under Section 409, following a High Court ruling in the 1970s.

Now that this position is held to be wrong in law, this means there is a lacuna - or a gap in the law - relating to the punishment to be meted out to company directors and key officers of charities and societies who commit CBT.

Parliament to fill gap

The court said the gap in the law should be remedied by Parliament.

The court acknowledged there is a strong and urgent impulse to ensure that persons in positions of responsibility are made to undergo a sentence that reflects the full measure of their harm and culpability.

But a "strained application of interpretative principles" by the courts would only represent "a proverbial papering over part of the conceptual cracks and shortcomings" in Section 409.

Unanimous decision

Judges of Appeal Andrew Phang and Judith Prakash, and Justices Belinda Ang, Quentin Loh and Chua Lee Ming concurred on the interpretation of "agent" under Section 409.

This was unlike the split decision in April last year, in which Justice Chan Seng Onn had a different view from then Judge of Appeal Chao Hick Tin and Justice Woo Bih Li.

That decision saw the former church leaders cleared of their original convictions under Section 409 and found guilty of simple CBT under Section 406.

Principles for criminal reference

The court laid down guiding principles for scenarios when the Public Prosecutor files a criminal reference in cases where the magistrate's appeal has been heard by a specially convened panel of three judges sitting at the High Court.

Though the City Harvest case had been decided by a three-judge High Court, the Court of Appeal found that the circumstances were "sufficiently exceptional" to justify hearing the case to make an authoritative determination.

This was because there were two High Court decisions - the 1970s judgment and the one in April last year - that adopted diametrically opposite positions on the issue.

It was amplified by the fact that the High Court panel was split on its decision last April.

Selina Lum

A version of this article appeared in the print edition of The Straits Times on February 02, 2018, with the headline 'Highlights of the decision'. Print Edition | Subscribe