Hyflux trial: Prosecutor crosses swords with defence in re-examination of lead investigator

CNA

a day ago

SINGAPORE: The prosecutor in charge of the Hyflux trial attempted to take his first witness, the lead police investigator, through clarifying questions on Wednesday (Aug 13) morning but was met with repeated objections from the defence counsel.
Both senior counsels stressed their points on a certain question about what ultimately happened to a S$720 million (US$561 million) loan Maybank had extended to Hyflux in 2013. Eventually, the judge agreed with Mr Davinder Singh and Deputy Chief Prosecutor Christopher Ong backed down.
The trial, which is in its third day, wrapped up for the week after under an hour of re-examination by Mr Ong.
In the dock are six former leaders of the now-defunct water treatment plant Hyflux: company founder Olivia Lum Ooi Lin, 64, former chief financial officer Cho Wee Peng, 56, and former independent directors Gay Chee Cheong, 68; Teo Kiang Kok, 69; Christopher Murugasu, 66; and Lee Joo Hai, 69.
Except for Cho, who is on trial for only one charge, the rest are contesting two charges each for this trial under the Securities and Futures Act (SFA).
In essence, they are for omitting the electricity sales portion - a new business with new risks - of the Tuaspring project, whether to the Singapore exchange or to investors.
According to the prosecution, Hyflux had pitched the Tuaspring project to the public as its second and largest seawater desalination plant in Tuas, while hiding the fact that it would fund the sale of water at a very low price to national water agency PUB, with a new business of selling electricity from a power plant it would build.
When the project ran into financial problems due to weak electricity sales, Hyflux suffered losses and eventually entered liquidation, with 34,000 investors owed S$900 million.
RE-EXAMINATION BY PROSECUTION
On Wednesday morning, Mr Ong took his first witness, Commercial Affairs Department (CAD) officer Ms Jacqueline Wei Maojun, through several answers she had given in response to Mr Singh's questioning.
Under Mr Ong's questioning, Ms Wei said she had sought views from a securities expert, Mr Kevin Gin, before "overt investigations" had commenced.
At one point, Mr Singh's team objected, saying the question that was asked was a leading question, and Principal District Judge Toh Han Li asked Mr Ong to rephrase his question.
After Mr Ong worded his question differently, Ms Wei explained that Mr Gin's views "did help to shape" the eventual "omitted" information that made its way into the charges against the accused.
"However, the actual framing of the (omitted) information was done by CAD, with consultations from various parties, including the regulators, the prosecutors," said Ms Wei.
Under Mr Ong's questioning, she also stated that she had exercised her discretion in allowing Lum to review a statement she had given to another investigator four months earlier.
Lum had requested to do so as she was "tired" on the day of the statement-taking and did not review it properly at the time.
Mr Ong then asked about a question Mr Singh posed to Lum - where he said it was a feature of a number of Lum's answers to Ms Wei, that she said the events occurred 10 years ago and she could not recall what happened, but she still tried to be helpful. Mr Singh then said this was primarily because of the time gap, to which Ms Wei said "possibly".
"Why did you say possibly?" asked Mr Ong.
"As I said, it's not for me to speculate," said Ms Wei. "One of the possible reasons is the time gap."
Mr Ong then asked Ms Wei what other possible reasons there were, but before she could answer, he withdrew the question, saying she had already stated that it was not for her to speculate.
Mr Ong then asked Ms Wei about the very first statement recorded from Lum. He asked her to tell the court about the circumstances leading up to the recording of this statement.
As Ms Wei began answering about how CAD visited Lum in early June 2020, Mr Singh got to his feet and asked: "How is that arising from any question or answer (in my cross-examination)?"
The scope of questions the prosecution can ask in re-examination is very limited and has to be focused only on the questions asked by the defence and the answers provided during cross-examination.
Mr Ong responded that Mr Singh had cross-examined Ms Wei regarding the nature of the answers from Lum.
"I think the context from which the statement was taken is relevant," he said.
"If relevant, it should be led in the examination-in-chief (by the prosecution)," countered Mr Singh. "This is re-examination of questions I asked in cross-examination. I didn't ask any questions about the circumstances leading up to this."
The judge then asked Mr Ong if he could "situate" his question based on what Mr Singh had asked.
Mr Ong tried again and asked: "At the time Ms Lum was giving this statement recorded by you, what did Ms Lum know about the purpose of the statement?"
Mr Singh objected again, asking what this clarification was about. The judge agreed and asked the prosecutor to make reference to something Mr Singh had asked before asking his question.
Mr Ong then referred to a specific question Mr Singh had asked, about an answer Lum had given in her police statement. She had said that Hyflux management had "guessed" that PUB would want to focus on the desalination plant, and not focus so much on the power plant.
Mr Ong asked Ms Wei to explain why she had accepted this as Lum's position.
"The reason is Mr Singh added (the word) 'honest'," said Ms Wei, referring to how Mr Singh had asked her if she accepted Lum's answer as "an honest position or answer".
"My role is just to accept what she answered," said Ms Wei. "It's not for me to guess at that point in time whether it's honest or dishonest. Regardless, I still have to record whatever she says in her statement."
She also said in response to questions from Mr Ong that her investigation findings showed that the banks had issue with the word "approval" appearing in an in-principle commitment letter for S$527 million they issued to Hyflux for the Tuaspring project on Jan 14, 2011.
"So there was some resistance from the banks, because from investigations, it shows that concerns (arose) primarily due to the power plant," said Ms Wei.
Mr Singh had argued that the Jan 14, 2011 letter went against the prosecution's claim that banks were concerned about the power plant part of the project, since the letter gave in-principle commitment for S$527 million despite the so-called concerns 10 days earlier.
Ms Wei continued that Hyflux "also knew the banks wanted to water down the phrasing in the 14 Jan letter and there appears to be some discussions among the banks on how best to reach a balance, a point they are comfortable with" and that Hyflux was also accepting of in order for the letter to be submitted to PUB.
This was because Hyflux had won a bid in response to a tender conducted by PUB.
Mr Ong then asked Ms Wei: "Later on in the cross-examination, Mr Singh suggested to you that the Maybank loan that was given to Hyflux a few years later was actually very relevant to this case. When Hyflux eventually collapsed financially, do you know what happened to this Maybank loan?"
Mr Singh had raised this S$720 million loan a day ago, suggesting that the reason there were no Maybank documents produced, and that the prosecution was not calling Maybank as a witness was because it would undermine the prosecution's case.
The prosecution's case is that six banks were so concerned about the power plant and electricity sales portion of the Tuaspring project that none of them eventually funded the construction of the power plant.
Mr Singh objected again to this question, asking which specific question Mr Ong was referring to.
The judge told Mr Ong "we all know (the loan) was extended" and asked him what the question was about. Mr Ong then said his question was the outcome, because if the giving of the loan is relevant, then the fate of the loan is also relevant.
"I didn't ask any question about that," said Mr Singh.
The parties wrangled over this for some time before the judge agreed with Mr Singh, saying that the collapse of Hyflux took place in 2019, six years after the loan was extended in 2013 and it was "too far" after the time in question.
At one point, Ms Wei asked if she could say something and Mr Singh objected strongly, saying "the witness is trying to advocate". The judge told her to hang on and she did not speak.
"At that time, 2013, there was an announcement (that Maybank was extending a loan to Hyflux)," said the judge. "But what happens in 2019, that's a whole different set of issues, right. I don't think we need to go into that now, because that's not been led."
Mr Ong replied: "I stand guided. In that case, no further questions."
He had no re-examination of any of the questions from the other lawyers for the other five accused.
The trial will resume on Monday afternoon, with former Hyflux corporate communications officer Winnifred Heap Ah Lan taking the stand.
She was originally meant to testify on Tuesday, but was sick with COVID-19.
The court heard that the prosecution is likely to take a full day questioning her in their examination-in-chief, and Mr Singh said he would likely take at least two days to cross-examine her.
The prosecution also handled administrative matters on which dates to vacate the trial, as they had to attend magistrate's appeals and other hearings on certain dates.
If convicted of consenting to Hyflux's intentional failure to disclose the electricity sale information to the securities exchange, Lum can be jailed for up to seven years, fined up to S$250,000, or both.