Continue from CHC Trial (Sep 15, 2015) – DPP Oral Submission
Reply Submissions by Chew Eng Han
Your Honour, I will just start off by addressing some of the points of the prosecution in the oral submissions.
Again, the lack of disclosure, the minimizing of disclosure, whether to the EMs and to the public, the real key issue is whether we hid it because we knew we were doing something wrong and that the bonds were shams, or because there was another pure reason for it.
Your Honour would also remember that, at the ruling of the no case to answer, your Honour said that each individual has to be assessed for their own individual state of mind. For each accused, they have to answer what was the reason they went along with Kong Hee’s preference not to disclose.
For myself, your Honour, the most telling is found in the Charlie Lay incident, which, ironically, the prosecution keeps hammering on.
I will read a part of the email without turning to it.
I said: “I prefer to keep this within a small circle because of the proximity of Xtron to Sun and therefore to Pastor Kong. If one day someone turns away from CHC and becomes nasty he may say all kinds of baseless things.”
This was my state of mind, your Honour, regarding why not disclose to Charlie Lay, because of the proximity of Xtron to Sun and therefore to Pastor Kong. In other words, the chief concern, as far as I thought it was, was the misperception which will result in a baseless accusation that the Crossover was done for Kong Hee and for Sun’s personal gain. And that was exactly the same accusation that Roland Poon had thrown at us, that Sun had become the centre of worship, that everything was all about Sun. When I said that it’s because of Roland Poon, I meant it, your Honour, and it shows in the emails.
The prosecution has failed to show any evidence that I went along with the discreet strategy because I knew it was sham bonds. There’s not a single piece of evidence.
They make an issue that we cannot use E-537, where it shows the projections for 1.5 million copies, because that was done way before the inception of the bonds, and they added on another thing. They said because that did not take into account the bonds.
The prosecution makes it like it is so complicated, so difficult to assess whether the bonds can be recovered. It’s actually very simple, your Honour.
The bond amount that is being budgeted for is basically the expenses. If Kong Hee says, “We need $13million, it means the expenses for the Crossover is $13million. Therefore, if the sales is more than $13million, it automatically means the bonds can be repaid and the Crossover is profitable.
It’s not a rocket science. All you need to know are just a few basic figures. If the sales is more than the bond amount, the bonds are good. You don’t need to go into some detailed sophisticated number-crunching to know whether the bonds can be repaid.
If Xtron is controlled by the church, how does it show a mens rea? Yes, granted, there are certain actus reus that does lead to inferences of mens rea, but those actus reus have to be very close to the scene of misappropriation and misspending. Where the scene is, where the money is, where the money is being used or misused, all I get is evidence of how the bonds were structured, was there negotiation. That is far from the scene, your Honour, of where the dishonesty is.
We spent two years arguing whether Sim Guan Seng conveyed the impression that he wanted the bonds redeemed. Now the prosecution is saying it is irrelevant. Of course it’s relevant, your Honour. There is a big difference between wanting to hide the bonds because we knew it was a sham and bowing to the auditors’ request to remove the bonds.
The learned counsel Mr Seah said, “Did we commit a crime just because to deal with the audit issue, to case loss to the church, to defraud the auditors just to solve an audit issue of valuation?”.
The consequences for CBT, your Honour, and falsification, are severe. When I look at what we have done versus the charges, they are out of balance.
The prosecution says that we wanted to remove the bonds without the auditors knowing that it was done using the church’s own funds.
Your Honour, can I trouble your Honour to go to appendix 5 again. [Appendix 5 not show to the public.]
Your Honour will see that before the restructure, what the auditors see in that CHC has exposure to Firna bonds, $11million, and $21.5million in Xtron bonds, of which $13million has gone into deferred expenditure, which is the album.
After the restructure, the auditors will see that CHC has given $21.5 million plus $11.5million of ALRA to Xtron. The auditors see that Xtron has taken $11.5 million of the ARLA, which is CHC’s funds, the church’s funds to buy Firna bonds. Unless Sim Guan Seng is blind, your Honour, he knows that church funds have been used to buy Firna bonds. So what is the prosecution taking about? In what way have we defrauded the auditors? When Sim Guan Seng now wants to value the ARLA, after the restructure, he needs to take into consideration the $13million of deferred expenditure, which you see in the diagram. If that is written down, the ARLA needs to be written down. They need to take into consideration the fact that Xtron has exposure to Firna in the form of the Xtron Firna bonds, and that if $11.5 million bonds has to be written down, then the ARLA, correspondingly, has to be written down.
The prosecution said yesterday[September 14] they have to thank Chew Eng Han for producing these exhibits because it shows that there are so many things that are not visible to the auditors…… Your Honour, the question is not whether the auditors see everything; the question is, given what is visible to the auditors, do they have a true and fair impression of the restructure and the church’s exposure to Xtron and Firna? I submit that, if you look at the diagram, the auditors have a fair and true view of the restructure of debts, and the church is now funding Xtron in the form of the ARLA, and that Xtron has refinanced Firna.
The question is whether what is visible to the auditors, are they able to fairly value CHC’s exposure in the form of the ARLA? And I have already explained they are able to do that. There is no defrauding.
Just because they don’t see in some of the transaction, it doesn’t mean they have been defrauded. [Refers to Ultimate Asset transactions.]
The prosecution says that my argument that the Xtron and Firna bonds were in substance investments into the album ironically means that the bonds are not investments. I’ve already shown from the diagrams that Xtron’s exposure is into the album, and, therefore, when the church buys Xtron bonds, the probability of Xtron repaying the church depends on the album. That’s why I said the substance of the bond is the album. The prosecution themselves queried me during cross-examination, “What is the underlying for the SOF? For it to be an investment, there must be an underlying”. I said it is the album. They are now questioning my same reasoning, that the substance of the bonds are the album.
If you invest into Xtron and Frina and doesn’t invest into anything else, how can Xtron and Firna repay it with interest?
The underlying asset is the album. The probability of the album producing enough sales determines the ability of the two entities to repay the debts. There’s nothing conflicting about it.
They go on to talk about the Firna bond purchase, and said that they are now so shocked that I’ve sort of shifted my position on Firna bond, because I used the RUL example. They say that my position that the real substance of the Firna bond purchase was not that the church was buying new bonds in Firna but that the church was taking over an existing debt owned to UA by Firna. I didn’t say the church didn’t buy new bonds with Firna, your Honour. For the last time, I will just ask the prosecution to stop twisting my evidence.
Of course, the church bought new bonds with Firna. It was through that purchase that CHC then owed a debt to Firna. What I’m saying is that, looking in totality at all the transactions, which include, number one, UA’s previous loan to Firna, number two, the subscription of new Firna bonds by CHC, and then, number three, the refund of the loan by UA to Firna, the net effect of these three transactions is that CHC had effectively taken over UA’s loan to Firna, and that was similar to what happened with RUL.
I only brought up this analogy because the prosecution calls this whole structure glib fiction. I’ve shown that the net effect of all these transactions is no different from other transactions in financial markets, including the RUL case. Just because the prosecution cannot understand my explanation, doesn’t mean I’ve contradicted myself between my EIC and submissions. They call my evidence incoherent, lacking in credibility. I think they had better go and take some courses in financial markets before they throw insults at me.
They say I’m contradicting myself by saying that the ARLA was meant to provide funds for Xtron to secure a building, yet why am I claiming that the ability to acquire the building did not depend on the monies that were transferred under the ARLA that had been used to redeem the Xtron and Firna bonds? I don’t know how else to explain, your Honour. If I go on explaining, it’s going to become very complex.
Whatever ARLA had already been used for the Xtron and Firna bonds to offset them, or to replace them, remain a liability that Xtron had to satisfy.
A separate question is: does the church, and, therefore, does Xtron have enough cash to kick off the building project? I thought that was the angle that the prosecution was coming from, and that’s why I was addressing the issue and saying that there are two separate issues. One issue is whether Xtron is able to satisfy its obligations on those parts of the ARLA that were used to offset the bonds. The other issue is was there enough cash as in that $20 million to kick off Capitol or whatever project that came?
Your Honour will see in appendix 6 that Xtron, in my mind, would be able to fulfill its obligations under the ARLA eventually. The prosecution says, “Oh, you are just kicking the can down the road”. Your Honour, I had no choice. I had to kick it because the album was delayed.
Did I know that the album was going to be delayed? No.
Did I know Sim Guan Seng was going to change his mind and Foong Daw Ching was going to change his mind about related party? No.
But the state of mind is very important, your Honour. What was I thinking when I did the ARLA? Was it a sham that contained no obligations or did I think through it? If we look at appendix 6, you will find that from CHC to Xtron, there’s an obligation of $21.5million plus $11.5million, and I’m just referring to those parts of the ARLA that were used to replace the bonds. Xtron now has this obligation to go and get a building and then to pay rental to the join venture that owns the building, and that’s in step Number Ten. And the way it’s going to satisfy it is,
number one, ….. “Riverwalk Property”, it has to sell off Riverwalk, and,
number two, pay the bank the $10 million loan, and $8.5 million,
number three, will go to Xtron. The second source for the ARLA obligations to be met, satisfied, is through the album sales, and that is point
number four, in JHM, when album sales comes in into JHM,
point five, JHM channels the revenue to UA.
point six, UA needs to give the cut of the profits to Xtron.
point seven, Wahju needs to repay whatever he’s borrowed with interest, and that’s why Serina Wee was tracking the interest in the second layer of accounting. With that
point eight, UA will then inject to Firna the $11.5 million principal plus interest, and Firna would then pay it to Xtron. With a combination of the album sales and the Riverwalk property, the ARLA obligations would have been satisfied by Xtron.
Your Honour, you see, the key is still whether the album is an investment.
If the album was an investment in my mind, then the ARLA was properly recorded, and so was the SOF, because the underlying for the SOF and the underlying for the ALRA was still the album.
That’s why I say the album, the probability of returns from the album, goes right into the core of the mens rea for every transaction, including the round-tripping.
The prosecution says that I, along with Serina Wee and Tan Ye Peng, have now resorted to the alternative argument, that, even if the bonds were not investments into Xtron and Firna, they were investments directly into Sun’s career. I thought I made it very clear in my EIC, right from the start, it’s all about the album. This is not my alternative argument. This is my core argument.
I talk about how the church would have invested directly into the album, without any structure. The only reason why the structure was put up is because of Kong Hee’s preference to be discreet. So when Kong Hee makes the decision and we slot in Xtron and Firna as intermediaries, what happens is that those intermediaries now take on the primary risk for the album investment. So if the album fails, the two entities still have to repay the bonds. But the ability and the probability of repayment of the bonds depends, to a large degree, on the success of the album, and that’s why I say the substance of the investment is into the substance of the bond investment is into the album, because that is the biggest determinant of the chances of repayment.
I don’t think that’s very difficult to understand. The prosecution, again, twisted my evidence yesterday and said that I misled the EMs to think that Xtron and Firna bonds were very, very liquid. So every time something like this happens, your Honour, I go back and check the evidence again. I said I couldn’t have said that to mislead the members, so I went to read it.
In CH-28, page 13, before this part about very, very liquid, I was giving examples of illiquid investments and I said properties are illiquid …… Then I contrasted it with stocks and shares, currencies, and bonds was one of them. I quote what I said: “But instruments like stocks and shares, bonds, currencies especially, they are very, very liquid.” So the liquidity risk is very low for instruments such as currencies and deposits and bonds as well.
This is a far cry from what the prosecution is trying to say. I need to remind the prosecution, too, that one reason why I turned Tan Ye Peng’s idea of a loan into a bond is because I knew that the bonds are more liquid than loans, and, therefore, that’s why I intended to sell off some of the bonds to other investors in E-197 an to pledge them to banks such as UBS, in E-152. So I didn’t think they were as illiquid as the prosecution is deeming them to be.
The prosecution claims that I, along with the other co-accused, planned to use church’s funds to repay the debts that are owed to it under the bond obligations or the ARLA. I’ve set out in my EIC, my re-examination, my submissions, that I’m not involved in many of these schemes, especially the altering of the retainer.
The ones I am involved I want to deal with. The ABSA. Yes, it was church’s money that went to pay rental for Riverwalk that was owned by Xtron. But, your Honour, the prosecution doesn’t deny that this started in E-100.
I want to turn to E-100 for a little while. I said: “I went through Xtron cashflow with Serina last night. Assuming we drawdown total max S$22m… there will be a deficit in 2009 of $3.5m. All the other years till 2014 are ok.”
Riverwalk was proposed by me as a solution to deal with a short-term cashflow deficit in 2009. All the other years till 2014 are okay, meaning the assumption is that the album sales would come in, though a bit late, but the album is good and the bonds are good. I didn’t propose the ABSA to lengthen and to provide a means for Riverwalk rental to repay the $13m of Xtron bonds. That was not my intention.
They say that I was involved in this scheme to skim off profits from CHC’s investments through AMAC in that plan whereby AMAC had to make a minimum of 5 per cent and above, and that AMAC would then donate the excess returns to repay the loans that were taken to repay the ALRA.
First of all, there was an assumption that Sun may not launch the album after all. Secondly, I would invite the prosecution to try and make 5 percent per annum.
It is not an easy task, your Honour. If I guarantee the church 5 percent, but I only make 3, I lose 2 percent, I bear the loss. If I make 7, I take the 2. It rightfully belongs to AMAC. I’m not skimming off the church’s profits.
And again, I need to remind the prosecution, this is three years after the Xtron bond inception and two years after Firna bond. You can’t take post-bond issuance events and put a mens rea to it, unless I had a crystal ball and I knew this was going to happen.
The prosecution says it is plain what the correct entry should be for the round-tripping, and the correct course of action should be to disclose the round-tripping transactions as the sham transactions that they were.
This is a criminal case about intention. In the end, it’s not what the prosecution thinks is the right entry; It’s what I think is the right entry, or, rather, what I thought was the right entry. Till today, I cannot figure out the right entry, which means that I thought this was the right entry. I’m trained in accounting. I don’t know of any other entry, your Honour.
The prosecution has to prove that I knew that the bonds were a sham. The prosecution has to prove that I knew, by doing this, that the auditors were fooled and they thought that the bonds were redeemed not using church funds. I’ve shown through the diagram, it’s plain to see, for Sim Guan Seng to see. It was church’s funds that went to redeem the bonds.
If you look at E-32, I will just read, Serian Wee asked me:
“Xtron is going through its audit for 2009 accounts, The auditor asked about how the $11.45m Firna bonds was funded?
The funds actually came from the advance rentals.”
Serina Wee herself says, from advance rental, your Honour, means from CHC. What is my answer? My reply:
“Yes from advance rental.” In other words, from CHC:
“Tell them the whole story why the advance rental was done, and then since Xtron had no immediate need for all the funds, it was parked in bonds. Let them know. The bonds can be redeemed when Xtron needs the funds.”
In this conversation between me and Serina Wee, we are already agreeing that the funds came from the church, and we spent months arguing. The prosecution had made such a beautiful case that we fooled the auditors, that they didn’t know it came from church funds.
This whole case about round-tripping to defraud the auditors is a nonstarter.
So the auditors knew that although CHC Firna bonds were redeemed, a new set of bonds has been purchased by Xtron which got the monies from City Harvest Church. They saw it, they had every opportunity to cry foul if they thought this was wrong and to correct the accounting entries, which was what Sim Guan Send said he would. He didn’t do it, because he didn’t think it was wrong. It was a right entry.
In E-403, and I will just read out that paragraph:
I said: “I met Christina of Rajah & Tann to arrange all the legal documents, She suggests the agreement to compensate Xtron 40% pf profits be made between Xtron and US jvn as technically that makes the most legal sense.”
The prosecution is saying “all of you didn’t intend any legal obligations”.
I went on to say:
“Also to link the agreement between Xtron and Firna isn’t very good because the parties are all CHC related….”
This issue of related parties was made known to Christina Ng as well. She got the whole picture, she penned it down in the board reso. She had no issue with it. And that’s why at the end of the evening,
I said: “Also after I shared with Christina about why we are using this structure for the Crossover.”
She commented that “God is with us, so let’s pray”.
This structure refers to the shift of Sun’s management from Xtron to UA, and the issue of bonds by Firna, the withdrawal of the loan back to UA, and then UA funds the Crossover. What the prosecution calls “glib fiction” and “sham”, the lawyer and fund manager deems to be good. In the end, it is not what the prosecution thinks, it is what I think. It is my mind, my state of mind. I believe I was legally entitled to do it.
The begging question is this for the ARLA and the round-tripping transactions. We saw how Kong Hee was pressing and anxious about how the ARLA would be repaid. How is it that Kong Hee is not even involved in the round-tripping in the first place to redeem the bonds? Here, we have the auditor that’s closet to the scene, the one that has the most probability of uncovering the sham. There’s a big trap there. Kong Hee is not involved. Why? Because it’s just an audit issue, your Honour.
The financing for Sun’s career itself was not illegal. The lawyers knew it. The auditors knew it. The fund manager knew it. The professional projections for the album was what gave the Crossover an investment stamp. It is an investment because of the professionals.
I honestly believe in Sun’s past track record. It’s all over the place, your Honour. The evidence is all over. The way I fought for her and for Kong Hee. I believe in the album’s profitability. The prosecution needs to disprove this. They have half an hour to or one hour to do it.
[Mrs Light’s comment: I need to pause here, when I was in CHC, I honestly believe Sun’s past track record. BLINDED. In my mind I believe the LORD enabled the donkey to speak, the LORD enabled the horse to sing too. The whole congregation was made to believe the success. Can I just sweep everything under the carpet? Show love don’t judge. Continue Eng Han’s oral submission.]
I’m not guilty of wanting to cause wrongful loss to the church.
I’m not taking about motive, your Honour; I’m taking about intention. If one expected album profits, if we think about it, automatically one is deemed to have intended for the bonds to carry obligations to repay, unless the accused had intention for personal benefit.
Having seen and heard about Sun’s phenomenal past success, it was innate in me to expect the album to succeed. It was inside of me, your Honour. This is something that happened over years from 2002 to 2007.
I also submit, your Honour, for every accused who did not intend to benefit from the bond issue, or to cause personal benefit to someone else, it is logical to assume, that in all likelihood, there was consideration given to the probability of the album generating returns. To assume otherwise is illogical because there’s no motivation for an accused to act this way, to be so reckless, to wake up one day in January 2007 and say “Okay, I’m going to cause wrongful loss to the church”. For what, your Honour?
Then in July 2008, I said, “I’m going to cause another $11million to be lost”.
For what purpose? Only a mad person would do this, your Honour.
An accused is likely to act so recklessly only if he stood to gain from such misspending. We shouldn’t go into argument about motives and intention, your Honour, but the motivation is important. It must not go against rational human behavior. I remind your Honour, as well, I was going through depression. What reason do I have to want to destroy the church?
How could I pen it down in my spiritual journal that I find purpose in doing this, that God is using me to cause wrongful loss to the church? The prosecution needs to answer all this, because there are too many reasonable doubts being thrown into their case scenario.
The prosecution agrees that, despite all the transformation into ABSA, into ARLA, into SOF, that the underlying liability never changed. Because the underlying liability was the deferred expenditure that had been spent on the album. They don’t realize that they are contradicting their own case. If the underlying liability doesn’t change, it means there’s no risk of additional loss through any transformation or liabilities.
If there’s no possibility of any loss, and they slapped CBT charges for this round-tripping, what’s happening, your Honur is that they’re slapping the same charges, the two charges twice, for the same potential loss. That’s why I say this is vicious. When I saw the charges, I said, “This is vicious”. You’re punished twice for the same potential loss.
Ironically, the second layer of accounting that they so happily take about shows that we knew there was only one potential loss, which is the album. I cannot commit on the second CBT for the same loss. This case, as I say, is a nonstarter. How does round-tripping result in loss?
Your Honour, I keep throwing questions because every time the defence throws a reasonable question at the prosecution’s case and they cannot answer, then there is a reasonable doubt about their case scenario and they have to get past this hurdle. I invite them to answer all these questions.
1) Why did I say that the albums will churn revenue to repay the individual loans in 2003?
2) If Sun could sell 150,000 Mandarin CDs in three months, how could I expect US album to sell only 200,000?
3) Why was I prepared to bring Xtron’s and the album’s financials to the banks knowing that it was a sham?
4) Why did I constantly discuss with Foong Daw Ching about financing the Crossover through Shamgar, through the UBS plan, the Xtron bonds, the Firna bonds, knowing that it is a sham?
5) Why did I ask Foong Daw Ching whether members can demand for more details beyond the financial statements? Could I be so bold to ask him this, knowing that my motive was to hide sham bonds?
6) Why did Kong Hee ask me to ask Foong Daw Ching to vet the profit-sharing agreement between UA and Xtron?
7) Why did I say I plan to get other funds to buy over Xtron bonds, in E-197?
8) Why did I tell Kong Hee that incurring major losses is a remote possibility?
9) Why did I propose to convert Firna debt into equity if only one-third of sales comes in? There is obligation, your Honour, on Firna. And the obligation is satisfied by the issue of shares to the church.
10) Why did I say interest for the Firna bonds can be repaid from the profits from the album at the end of the project. In other words, I expected profits.
11) Why did I visit Firna factory, look at their financials and the album projections if there was no obligations for Firna to repay?
12) Why did I tell Christina Ng everything about Xtron and Firna and UA?
13) Why did Christina Ng say “God is with us” in this structure?
14) Why did I write that God is using me for the Crossover and that I find purpose in it? To cause loss to the church?
15) Why did I tell Sharon Tan that we will continue with the Firna bonds until Palm Oil comes in when I was supposed to be so frantic and fearful that Sim Guan Seng is going to find out about these sham bonds? I told her, at the very worst, delay the financial year. He can probe all he wants.
16) Why did I get a valuation for Firna after the 9 April 2009 meeting, and I got it the next day? If I wanted the bonds off the books, I will say, “It’s impossible to get a valuation”.
All these are reasonable doubts.
17) Why did I tell the auditor the whole story about the Xtron Firna bond and the ARLA?
18) Why did Sharon Tan write CH-50b if they were not contemporaneously written? If they were not written during the board meeting, there’s only one possibility: they were written either before or after. How could she wrote it after when, if you look at all the notes and all the points in there, I don’t think Sharon Tan is capable of that, your Honour. was she writing just to practice her handwriting?
19) In what way was there risk of loss for the round-tripping, and is there evidence that the accused knew they were causing loss? There’s no CBT.
20) What benefit was there by transforming the bonds into ARLA? What benefit to the accused? They still had to face the impairment.
21) The last one: Why was Kong Hee not involved at pressing for the bond redemption?
Your Honour, I’ve finished with my submissions.
Thank you, your Honour.
[Mrs Light’s comment:
There is no point for me to argue who is right who is wrong. The verdict will be delivered on October 21. Let me quote what Senior Counsel Sreenivasan said in court.
“It is the prosecution’s evidence that has to be tested and weighed and examined and see whether it passes the test beyond reasonable doubt.”]