By Yi Lin Seng* and Andrew Martin* (Baker McKenzie Singapore)
1. Domestic bribery (private to public)
1.1 Legal framework
The primary legislation regulating corruption/bribery in Singapore is the Prevention of Corruption Act, Chapter 241 of Singapore (the “PCA”), which applies to both private sector bribery and bribery of public officials. Other bribery legislation includes the Penal Code, Chapter 224 of Singapore (the “Penal Code”), which contains provisions directed at public officials. The Corruption, Drug Trafficking and other Serious Crimes (Confiscation of Benefits) Act, Chapter 65A of Singapore (the “CDTSA”) is a related statute that provides for the confiscation of benefits derived from, inter alia, corruption offenses.
As the corruption/bribery offenses relating to public officials under the Penal Code largely overlap with those in the PCA, and the punishment meted out under the Penal Code is lesser than the prescribed punishments under the PCA, it is very rare for a prosecution to be brought under the Penal Code for the receiving or taking of illegal gratification.
1.2 Definition of bribery
The key offense is set out in Section 5 of the PCA1:
A person is guilty of a corruption offense when he, by himself, or in conjunction with any other person:
(a) corruptly solicits or receives, or agrees to receive for himself, or for any other person; or
(b) corruptly gives, promises, or offers to any person whether for the benefit of that person or of another person,
any gratification as an inducement to or reward for, or otherwise on account of any person to do or forbear to do anything in respect of any matter or transaction whatsoever, actual or proposed.
Therefore, the two core elements are that: (a) the transaction was corrupt; and (b) gratification was given/received.
There must first be a corrupt element in the transaction according to the ordinary and objective standard, followed by the accused’s guilty knowledge that what he was doing was, by that standard, corrupt.
Both limbs must be fulfilled beyond reasonable doubt. The question of ‘corrupt’ would therefore be determined on the facts of the individual case.
In particular, there is a presumption of corruption where it is proved that gratification has been given to Singapore public officials.
The definition of “gratification” under the PCA is very broad and includes monies, gifts, loans, fees, rewards, commissions, valuable security and properties, and can also cover “any other service, favour or advantage of any description whatsoever.”
Penal Code
The Penal Code contains provisions that prohibit, among others, any public servant from taking any gratification as a motive or reward for doing or forbearing to do any official act, or the taking of any gratification by any person as a motive or reward for inducing, by the exercise of personal influence, any public servant to do or forbear to do any official act.
1.3 Definition of public official
The definition of “public person” under the PCA and the Penal Code are both very broad.
The PCA defines a public body as “any corporation, board, council, commissioners or other body which has power to act under and for the purposes of any written law relating to public health or to undertakings or public utility or otherwise to administer money levied or raised by rates or charges in pursuance of any written law.” This has been held by a Singapore court to include the National University of Singapore, an autonomous university that is open to the public for tertiary education.
Under the Penal Code, the definition of “public servant” includes, among others, officers in the Singapore Armed Forces, judges, officers of a court of justice, assessors assisting a court of justice or public servant, and officers of and acting on behalf of the Singapore government.
1.4 Consequences of bribery
PCA
A person guilty of bribery of a public official under the key provisions of the PCA (Section 5 or Section 6) shall be liable on conviction to a fine not exceeding SGD 100,000, or to imprisonment for a term not exceeding five years, or both. There are also certain offenses relating to government contracts or bribery of a member of a public body under certain circumstances, which may result in a fine not exceeding SGD 100,000, or to imprisonment for a term not exceeding seven years, or both. If a person is convicted for accepting any gratification in contravention of the PCA, the court may also order him to pay a penalty equivalent to the amount of bribes he received as a fine.
In this regard, please note that the Singapore High Court has clarified that there are no sentencing presumptions in respect of private sector and public sector corruption, both of which can attract custodial sentences.
The term “person” includes any company or association or body of persons, and as such, a company could accordingly face the consequences of bribery. Although the prosecutions for bribery offenses in Singapore to date have been at an individual level, there is no legal impediment barring companies from being prosecuted for a bribery offense.
“Criminal conduct,” as defined in the CDTSA, covers a range of serious offenses, including bribery under the PCA.2 Where a defendant is convicted of one or more serious offenses, the court shall, on the application of the public prosecutor, make a confiscation order against the defendant in respect of benefits derived by him from criminal conduct if the court is satisfied that such benefits have been so derived.
Penal Code
A bribery offense under the Penal Code shall be punishable by imprisonment of up to three years or a fine, or both.
1.5 Political contributions
Political contributions that are not provided for a corrupt purpose or intent, or for the purposes of influencing a public servant to do or forbear to do any official act, are acceptable. However, as previously mentioned, under the PCA there is a presumption of corruption where it is proved that gratification has been given to public officials in Singapore.
1.6 Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)
Neither the Penal Code nor the PCA provides any “safe harbor” monetary guidelines for gifts, hospitality expenses or other entertainment, nor are there favourable presumptions under the statutes if such gifts are below a certain monetary value. Generally, and only as a rule of thumb, any arrangements that may be considered as lavish, extravagant or excessive so as to invite an inference to be drawn that the arrangements were intended as a form of corruption, should be avoided.
Based on anecdotal evidence, we understand that no public official may receive any gifts in a personal capacity. Gifts should only be officially made to the relevant government department, and the giver should write to the relevant Permanent Secretary (or at least the official’s superior or head of department) to offer the gift.
2. Domestic bribery (private to private)
2.1 Legal framework
Private bribery is regulated under the PCA.
2.2 Definition of private bribery
Paragraph 1.2. Section 5 (and Section 6) of the PCA applies to private bribery as well.
2.3 Consequences of private bribery
As mentioned in paragraph 1.4, a person guilty of bribery shall be liable on conviction to a fine not exceeding SGD 100,000, or to imprisonment for a term not exceeding five years, or both. If a person is convicted for accepting any gratification in contravention of the PCA, the court may also order him to pay a penalty equivalent to the amount of bribes he received as a fine. Under the CDTSA, the Singapore courts can also make a confiscation order against a defendant in respect of benefits derived by him from the bribery offense (as mentioned in paragraph 1.4).
Also, as mentioned in paragraph 1.4, there are no sentencing presumptions in respect of private sector and public sector corruption, both of which can attract custodial sentences.
2.4 Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)
As mentioned in paragraph 1.6, the PCA does not provide any safe harbor monetary guidelines for gifts, hospitality expenses or other entertainment, nor are there favourable presumptions under the statute if such gifts are below a certain monetary value.
3. Corruption of foreign public officials
3.1 Legal framework
There is no specific legislation regulating corruption in relation to foreign public officials. However, Section 37(1) of the PCA provides that the provisions of the PCA have effect, in relation to Singapore citizens, outside as well as within Singapore, where an offense under the PCA is committed by a citizen of Singapore in any place outside Singapore. Accordingly, the corruption of foreign public officials by a Singapore citizen outside of Singapore will be an offense under the PCA. Where the corruption takes place outside of Singapore, it will be an offense only if the person committing such offense is a Singapore citizen.
It has also been announced that there will be a legislative review of the PCA, and there may be a change to the PCA to strengthen its extraterritorial scope.
Notwithstanding the above, if the corruption takes place within Singapore and involves a foreign public official, Section 5 (or possibly Section 6) of the PCA will apply to any Singapore citizen who gives the bribe to, or receives the bribe from that foreign public official.
3.2 Definition of corruption of foreign public officials
Please see paragraph 1.2, which will apply to the corruption of foreign public officials.
3.3 Definition of foreign public official
There is no definition of “foreign public official” in the PCA. However, the PCA does apply widely to all natural persons as well as companies or association or body of persons (corporate or incorporate), which includes foreign public officials.
3.4 Consequences of Corruption of foreign public officials
As mentioned in paragraph 1.4, a person guilty of bribery shall be liable on conviction to a fine not exceeding SGD 100,000, or to imprisonment for a term not exceeding five years, or both.
3.5 Limitation applicable to hospitality expenses (gifts, travel, meals, entertainment, among others)
As mentioned in paragraph 1.6 above, the PCA does not provide any safe harbor monetary guidelines for gifts, hospitality expenses or other entertainment, nor are there favourable presumptions under the statute if such gifts are below a certain monetary value.
4. Facilitation payments
As explained in paragraph 1.2, the definition of “gratification” under the PCA is very broad and will include facilitation payments.
Accordingly, the provisions of the PCA will likely apply to any facilitation payments if such facilitation payments have been given or received corruptly.
5. Compliance programs
5.1 Value of a compliance program to mitigate/eliminate the criminal liability for legal entities
The PCA does not specifically recognize compliance programs as a mitigating factor that will eliminate liability for companies. However, in the event that an entity is prosecuted for a bribery offense, the fact that such entity has a compliance program in place may mitigate any punishment imposed in respect of such offense. That said, the degree of mitigation is not clear and determination of liability will likely be based on the particular facts.
5.2 Absence of a compliance program as a crime
The absence of a compliance program is not an offense.
5.3 Elements of compliance program
The PCA does not provide for elements that must be present in a compliance program. However, we would recommend that the compliance program include the following:
- Processes for assessing compliance risks, including due diligence on third party business partners
- Company anti-bribery policies / codes of conduct
- Compliance training and appropriate messaging from the board and senior management
- Compliance audits, reporting and monitoring procedures>
- Whistleblowing procedures
6. Regulator with Jurisdiction to prosecute corruption
The regulator responsible for the investigation and prevention of corruption in Singapore is the Corrupt Practices Investigation Bureau (CPIB).
The functions of the CPIB are:
- to receive and investigate complaints alleging corrupt practices;
- to investigate malpractices and misconduct by public officers with an undertone of corruption; and
- to prevent corruption by examining the practices and procedures in the public service to minimize opportunities for corrupt practices.
The CPIB does not have prosecution functions. The CPIB will hand any such potential cases over to the public prosecutor, who has prosecutorial discretion to initiate criminal proceedings.
1 – Separately, Section 6 of the PCA specifically provides for corrupt transactions involving agents. In this regard, a person commits an offense by giving, and an agent commits an offense by receiving, gratification as an inducement or reward for doing or forbearing to do any act in relation to the principal’s affairs or business. A recent decision by the High Court established that the lack of an agreement or discussion prior to the event does not prevent a finding of corruption from being made. The crucial inquiry is whether the agent, in carrying out his duties, showed favor to the third party or was tainted by the contemplation of a reward. To prove corruption in cases where gratification was received after the allegedly corrupt conduct had occurred, the evidence must at least lead the court to infer that the idea of gratification was already operating in the accused’s mind at the time the allegedly corrupt conduct occurred. – Back
2 – It may be sufficient for the public prosecutor to prove criminal conduct under the CDTSA through circumstantial evidence. In a recent District Court decision (Public Prosecutor v Kabaleeswaran s/o Subramaniam [2016] SGDC 254), the Singapore courts noted the practical difficulties faced by the prosecution in adducing direct evidence in CDTSA cases. In this regard, the court held that offences necessary to show ‘criminal conduct’ need not necessarily be proved only by direct evidence but may also be proved by way of inferences from other evidence, including circumstantial evidence. – Back
|
|
