City Harvest case puts spotlight on procedural justice

Many of us without legal training rely on nothing more than an instinctual sense of justice when reading about cases before the courts. If so, sitting in the parliamentary gallery yesterday may have brought cognitive strain, as the arguments made their way from the judicial branch of government to the legislative one.

The case that triggered debate involved City Harvest Church, whose leaders were convicted of criminal breach of trust (CBT). The question: Should they be sentenced under Section 406 of the Penal Code, which covers any person who commits the crime, or Section 409, which covers "agents"?

The difference matters, because the maximum sentence is seven years under the former, and life imprisonment under the latter.

For 40 years, the courts relied on a 1976 High Court decision defining directors as "agents" - making them liable to the aggravated charge. At least 16 decisions were based on this precedent.

Last year, this was overturned in the City Harvest case. The High Court, which heard appeals from the City Harvest defendants and the prosecution, decided that the law did not in fact say what people thought it had said for 40 years. The initial drafters of the law, the High Court said, did not mean "agents" to include directors.

The matter went to the Court of Appeal when the prosecution applied for a rarely invoked criminal reference, to seek a definitive interpretation of the law. The apex court upheld the High Court's interpretation last week.

As a result, an anomaly arose: Ordinary employees can be jailed for up to 15 years for CBT, but directors only up to seven years.

Explaining the case in a statement to the House yesterday, Law Minister K. Shanmugam called it a lacuna - a gap - in the law. He promised to propose changes in Parliament to remedy the situation.

Two awkward positions came about from last week's court ruling.

First, the appeals court itself agreed that there was no good policy reason to ignore the "heightened culpability" of directors. But the judges felt obliged to apply the law as they understood it. It was Parliament's job to amend the law, they argued.

Second, Mr Shanmugam then defended the court's right to make that ruling, which he did yesterday - even as he declared in no uncertain terms that "the Government believes that the sentences are too low".

But "whether we agree or disagree with (the ruling)", it must be respected. The sentences reflect what the law says, as interpreted by the courts. "The courts decide these matters," he added.

Some members of the public took to attacking the judges online, accusing them of letting off the rich, or of being lenient, perhaps because they were Christians.

Mr Shanmugam yesterday defended the judges against these attacks. He said: "Expressing one's unhappiness with court decisions is fine, but it should not sink to the level of abuse, insult and contempt... Judges should not be personally attacked, their integrity impugned, just because people do not agree with their decision."

To add to the peculiar nature of the case, a separate controversy brewed online over the identity of one of the defence lawyers.

People's Action Party MP Edwin Tong, a lawyer, acted for one of the accused - City Harvest founder-pastor Kong Hee. Mr Tong was harshly criticised by a segment of netizens. Some implied, without basis, that Kong got off lightly because a PAP MP defended him.

Mr Shanmugam also addressed this in the House, reminding that everyone had the right to a defence - "even a child rapist". He recalled how in 1995, he defended International Herald Tribune when it was sued for libel by then Prime Minister Goh Chok Tong , Deputy Prime Minister Lee Hsien Loong and Senior Minister Lee Kuan Yew.

"I thought the IHT had a right to counsel of its choice. They were faced, obviously, with particularly formidable plaintiffs who could get counsel of their choice," he said.

"Lawyers should not be made to feel that they will be hounded online, if they take up cases."

It may not have been easy for some to follow, let alone accept, the legal arguments made yesterday. Despite this (or perhaps because of this), it was important to hear Mr Shanmugam's explanations.

As the debate drew to a close, it was clear what was most curious about the case: Almost everyone thought the church leaders should be judged under heavier sentence limits - but they were not.

Society's intuition about right and wrong felt somewhat violated. Yet, if some in society insisted on getting their way, greater damage would have been done.

For the rule of law to function, the judiciary must interpret in good conscience the law as it stands, not the law that it wishes was there.

The Law Minister must then be prepared to defend the right of the courts to make such a ruling. Or else the country could descend into chaos, with the public taking potshots at the judiciary, and the judiciary possibly being cowed into making populist rulings.

Criminals, however heinous, must also have the right to the counsel they choose, and these counsel must be allowed to defend them without being harassed.

These are not mere technicalities. They are the very foundations of procedural justice, without which there can be no substantive justice.

Such principles may not sit well with all. It is just as well the public does not decide on such matters.

For if a mob had demanded its sense of natural justice in this case, it would have dealt a body blow to the rule of law - and, as a result, natural justice would not be done in many more cases.