Panoramic night view of Singapore bussines district in sepia colors

In brief

In a recent appeal before the Honourable Chief Justice Sundaresh Menon involving two individuals who had participated in public sector corruption (Public Prosecutor v Wong Chee Meng and another appeal [2020] SGHC 144), the High Court set out a new sentencing framework for corrupt transactions which take place in relation to contracts with the Government or public bodies under s 6 read with s 7 of the Prevention of Corruption Act (Cap 241) (the PCA).


Contents

Key takeaways

  • Public sector corruption (i.e. which relates to the Government or public bodies) is considered an aggravated form of corruption in Singapore because it undermines the integrity of the Government, and erodes the public’s trust and confidence in the various organs and bodies of the State. Given Singapore’s zero-tolerance approach to corruption, custodial sentences are presumptively the norm in cases involving public sector corruption.
  • The new sentencing framework pertains only to public sector corruption involving agents. The High Court declined to extend the new sentencing framework to cover all corruption offences under ss 5 and 6 of the PCA generally.
  • The new sentencing framework adopts a five-step analysis (please see below).

In more detail

Background

Wong was the general manager of the Ang Mo Kio Town Council (AMKTC) at the material time, and was in charge of AMKTC’s operations, including overseeing and providing input on the selection of contractors for the execution of work. Chia was a shareholder and director of two companies which were in the business of providing construction-related works for various Town Councils in Singapore (the Companies).

From 2014 to 2016, Wong corruptly received and obtained various forms of gratification from Chia (e.g. discounts on a car, remittances to Wong’s mistress, and entertainment expenses). In return, Wong advanced the business interests of the Companies in their dealings with AMKTC by, amongst other things, preferring the tenders submitted by the Companies (even though they were not the lowest), tweaking AMKTC’s tender requirements to suit the Companies’ specifications, and providing input and advice to Chia on the Companies’ bid pricing and technical information.

At trial, both Wong and Chia pleaded guilty to three charges of participating in public sector corruption with an agent under s 6 read with s 7 of the PCA. The Public Prosecutor appealed on the basis that the sentences imposed by the District Judge were inadequate. Wong and Chia cross-appealed on the basis that the sentences imposed were excessive.

Issues

As a common law jurisdiction, the general approach towards sentencing in Singapore has always been to have regard to past cases which have identified a number of categories and factors pertinent to the sentencing process.

However, in respect of corruption cases, past decisions have tended to be of limited relevance given the Public Prosecutor’s discretion to bring charges for the basic corruption offences (under ss 5 and 6 of the PCA) even if the facts could warrant invoking the enhanced punishment provisions (under s 7 of the PCA). This has created two issues for the Singapore courts:

  1. precedents tend to be of limited use; and
  2. even where the facts of previous cases are similar, a high degree of caution is still required as the sentences imposed in those cases may have been under the basic corruption offences.

In the circumstances, a sentencing framework for public sector corruption is warranted so as to provide a consistent and coherent methodology for the courts when dealing with such offences going forward.

The sentencing framework

1. Identify the level of harm caused by the offence and level of culpability, having regard to the list of offence-specific factors. Accordingly, both the level of harm and level of culpability can be broadly classified into three categories scaled according to severity.

Offence-specific factors*
Factors going towards harm

Actual loss caused to principal

Benefit to the giver of gratification

Type and extent of loss to third parties

Public disquiet

Offences committed as part of a group or syndicate

Involvement of a transnational element

Factors going towards culpability

Amount of gratification given or received

Degree of planning and premeditation

Level of sophistication

Duration of offending

Extent of the offender’s abuse of position and breach of trust

Offender’s motive in committing the offence

* These are non-exhaustive factors

2. Identify the applicable indicative starting range that would apply based on the level of harm and level of culpability determined in Step 1, and the following sentencing matrix:

Harm

Culpability

SlightModerateSevere
LowFine or up to 1 year’s imprisonment1 to 2 year’s imprisonment2 to 3 years’ imprisonment
Medium1 to 2 year’s imprisonment2 to 3 years’ imprisonment3 to 4.5 years’ imprisonment
High2 to 3 years’ imprisonment3 to 4.5 years’ imprisonment4.5 to 7 years’ imprisonment

 

3. Identify the appropriate indicative starting point within the sentencing range that had been chosen. This entails an examination of the offence-specific factors. This is also where the sentencing court should have regard to the public service rationale, which will typically attract a custodial sentence save for exceptional cases.

4. Make adjustments to the indicative starting point to account for offender-specific factors.

Offender-specific factors*
Aggravating factors

Offences taken into consideration for sentencing purposes

Relevant antecedents

Evident lack of remorse

Mitigating factors

A guilty plea

Co-operation with the authorities

Actions taken to minimise harm to victims

* These are non-exhaustive factors

5. Take into account the totality principle and make final adjustments to the sentence.

For further information and to discuss what this development might mean for you, please get in touch with your usual Baker McKenzie contact.

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