Monday 15 September 2014

What will Kong Hee's confession letter achieve?

Hello everyone! I'm taking a short break from my series of articles on Tunisia to return to the ongoing case of Kong Hee, CHC and Sun Ho. In a surprise move, Kong Hee has submitted a 'letter of confession' to the court on the 11th September. In this 12 page letter, Kong asked for leniency and admitted that he shouldered responsibility for what has happened. This is a move that took all involved in the case (including myself) by surprise. What is Kong Hee trying to achieve with a letter of confession like that? Does this signal a change in Kong Hee's tactics? What will happen next?

I would like to refer you to an insightful article on Todayonline where it was pointed out that Kong’s CAD statements were ‘at odds with confession letter’. This demonstrates that this is letter of confession does not tantamount to a guilty plea, far from it. It simply signals that Kong probably realizes that he is not going to get a not guilty verdict and thus he is trying at this stage of the game, to simply soften the blow when it does arrive. Perhaps his lawyer Edwin Tong has finally talked some sense into him, maybe his wife Sun Ho has finally awoken to the fact that her husband may be going to jail for a long time. Regardless of what triggered this change of heart, it is clear that Kong has definitely changed his stance.
What are we to make of Kong Hee's confession letter then?

It was reported in the Todayonline article, "Kong recorded his statement at the Commercial Affairs Department (CAD) the next day, his account to the authorities was marred by hazy recollections, Some of the discrepancies were brought up by co-accused Chew Eng Han, the church’s former treasurer, who felt that certain points in Kong’s letter and subsequent CAD statements were not coherent." Allow me to draw a parallel to another high profile case in South Africa - that of Oscar Pistorious. In the words of Judge Thokozile Masipa, Pistorius was a “very poor witness” who lied about his intentions when getting his gun, she said, but being “untruthful” did not necessary mean he “must be guilty”. The burden of proof rested with the state, she pointed out. “The state has not proved beyond reasonable doubt that the accused is guilty of premeditated murder,” she said. “There are just not enough facts to support such a finding.”

Pistorius has been found not guilty of premeditated murder, but of a lesser charge of culpable homicide (manslaughter). Many in South Africa have felt that this was a somewhat unfair verdict that was more a result of the technicalities of the case and that Pistorius has literally gotten away with murder. Let's look at the similarities between Pistorius and Kong. In both cases, there is no doubt that both men are guilty of the deed they are accused of - the case is more an issue of what you can prove beyond a shadow of doubt with evidence and what charges you can hold up in court. Both cases involve a lot of evidence to be analyzed - in Pistorious' case, not only did the court have a lot of forensic evidence from the scene and an autopsy report, but the entire relationship between Pistorius and Reeva Steenkamp have been placed under scrutiny to try to understand if Pistorius was the kind of man who would have murdered his girlfriend in cold blood.
In Kong's case, we are talking about a large amount of evidence gathered over a period starting from 2002 when Sun Ho first launched her music career. The prosecution has been digging for evidence of Kong Hee and his team siphoning off church funds to fund her music career and they have uncovered some pretty interesting pieces of evidence. Whilst the focus has mainly been on the way Sun Ho's attempt to break into the American market has been funded (remember China Wine?), it was uncovered that as early as 2004, CHC spent half a million in church funds buying up Sun Ho's unsold Mandopop albums. Whilst only five individuals have been arrested and charged in court (note that Sun Ho has not been charged with anything), the number of witnesses involving this case is very large and clearly, it has already dragged on far long than the Pistorius trial and it is likely to go on for quite a while longer yet.

One characteristic that Kong and Pistorius share in common is the fact that they are both very poor witnesses who have a very hazy (if not selective) memory about the details of the case. Clearly, neither men are going to give the judge or the prosecution any evidence which will be to their own detriment - they would have been advised by their lawyers to say that they do not remember if the judge or prosecution is pressing for that kind of detail. Would Kong Hee be hoping for a similar outcome as Pistorius, by playing the same game as Pistorius in being such a poor witness?  For the judge to spare him of the most serious charges and only find him guilty of the less serious ones because of the lack of evidence?
Will justice prevail in this case?

Given how long the case has dragged on though, I think the time has come and gone for any kind of plea bargaining.There is just one contradiction that confuses me: a poor witness (like Pistorius) can refusing to cooperate in court by being difficult, evasive or simply having a 'very poor' memory - this can lead to the prosecution being unable to find enough facts to build a case to find them guilty of the most serious charges. It is a gamble that has played off for Pistorius, but in doing so, you lose the goodwill of the judge by being behaving like that in court. One can only assume that Kong's letter of confession is an attempt to win the goodwill of the judge, but after having been at best, an unreliable witness throughout this trial, this sudden change of heart may be just too little, too late to try to change his fate.

Let's see what the prosecution makes of Kong's latest move. Feel free to leave a comment, thanks for reading.

5 comments:

  1. I think your claim that "there is no doubt that both men are guilty of the deed they are accused of - the case is more an issue of what you can prove beyond a shadow of doubt" is a loaded one.

    There is nothing unusual about requiring the prosecutor to prove beyond reasonable doubt. This is not just a mere technicality that many South Africans seem to think; it serves to minimize the risk that innocent people are convicted. A trial based on public perception, instead of the facts and law, is dangerously close to a lynch mob.

    Pistorius was justified to protect himself from what he thought was an intruder. I shouldn't dwell on the facts of the case as it has been covered extensively in the media, but here's an example of why proof beyond reasonable doubt is important: Some people think that Steenkamp locked herself inside the toilet only because Pistorius was behvaing violently following an argument, as if she could not be locking herself to hide from a possible intruder.

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  2. If Pistorius was justified to protect himself from the intruder, how come he does not see it justified to make absolute sure his wife in protected from harm's way by ensuring that she is in safe hands first ?

    Just like KH is implying that it is the duty of his investment manager, auditors & lawyers to protect the Church's interests, how come it never occurred to himself that he has a primary duty of care to ensure that the church members' interests are not compromised in any way like using the Church building funds to purchase his wife's albums?

    Does it not appear that both are in fact blaming others to absolve their own responsibilities ?

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    1. Thank you for your comment Alan, I couldn't agree more!

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    2. Certainly it's hard for Kong Hee to rationalize his spending of church funds to purchase his wife's albums. (But if the judge thinks KH is legally authorized to use church funds in this manner, he wouldn't be guilty of criminal breach of trust.) In any case, the point of my comment was that proof beyond reasonable doubt is not just a mere technicality that Alex is trying to suggest.

      While you're joining Alex in comparing Kong Hee with Pistorius, let me also point out that your comparison is flawed. Pistorius tried to protect his girlfriend (not wife as you said) from harm's way by shooting at what he thought was an intruder.

      Arguments that Pistorius should have done this or that often ignores the fact that emergencies call for quick reaction under stressful conditions, thus Pistorius shouldn't be liable for what is only in hindsight, a poor judgment. How'd you feel if you're convicted of murder / culpable homocide for trying to protect somone?

      On the other hand, Kong Hee isn't experiencing any kind of emergency that Pistorius thought he was in. The latter also never tried to put the blame on anyone else.

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    3. OK let me respond to your point above: my point is simple, that there is no doubt that Pistorius shot Steenkamp, but it was just a matter for the judge to decide what he should be found guilty of and under what circumstances it took place (murder, manslaughter, self-defence etc). At no stage did Pistorius claim that he did not shoot her - there's no doubt about that. Likewise, Kong Hee was in charge of CHC when all this happened, so regardless of what Kong Hee may claim in defence, he is in the center of this case whether he likes it or not. I suppose if you wanna split hairs, then yes in the Pistorius case, there were only 2 people involved: him and Steenkamp - who were at the scene of the crime when it happened, but in the case of Kong Hee, there are far more people involved so there's more leeway over who did what and who should bear responsibility for this and that etc.

      So as you said, there's no doubt that Kong did use the money to support his wife's music career - the same way there's no doubt that Pistorius did kill Steenkamp - it will boil down to the legal technicalities of whether or not, as you say, Kong he was legally authoriezd to use church funds in this (admittedly highly unorthodox, if not illegal) manner.

      Perhaps my judgement is slightly clouded as I did like Oscar Pistorious (prior to this awful case) and as for Kong Hee, my articles on my blog speak for themselves...

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