In a recent decision, the Singapore High Court clarified that in determining an appropriate sentence for corruption, the Court will take into account the specific nature of the corruption. There are no sentencing presumptions in respect of private sector and public sector corruption, both of which can attract a custodial sentence.
Facts
Syed Mostofa Romel (“Syed“) was an Associate Consultant with PacMarine Services Pte Ltd (“PacMarine“). His duties included conducting inspections of vessels seeking to enter an oil terminal, to ensure that the vessels were seaworthy and free from any high-risk defects. If Syed identified defects as low- to medium-risk, a vessel would generally be allowed to dock at the oil terminal, where rectification works would be carried out. If defects were classified as high-risk, the vessel would not be allowed to dock until rectifications works were completed. Regardless of classification of defects, Syed would prepare a report and submit it to his supervisor. First charge On 10 March 2014, Syed conducted a vessel safety inspection. After the inspection, he spoke to the ship master and the chief engineer to highlight several high-risk observations which were likely to result in the vessel not being allowed to enter the terminal until rectification. The ship master did not agree with the observations and thought the defects were minor ones which could be readily rectified. He also felt that it ought not to be reflected in the inspection report. He asked Syed how he could resolve the situation and after some negotiation, the ship master agreed to pay Syed $3,000. In return, Syed would omit the high-risk observations from his report. Second charge Unbeknownst to Syed, the ship master reported the incident to the Corrupt Practices Investigation Bureau (“CPIB“), which then set up and launched a sting operation. A vessel was prepared with high-risk defects which ought to be highlighted. Unsurprisingly, Syed identified the defects and informed the ship master. As with the previous occasion, the ship master asked how he could resolve this situation. Consequently, the same arrangement was entered into. Syed was paid $3,000 and in return he did not point out any of the defects in his report. On a separate occasion, Syed had obtained from another ship master US$1,200 in return for a favourable inspection report.
Decision
Decision below: Syed pleaded guilty and was sentenced to two months’ imprisonment for each charge with both sentences to run concurrently. In the High Court: The Prosecution argued that the sentence was manifestly inadequate and should be increased to 6-8 months. The Prosecution’s appeal was allowed.
Sentencing Considerations
No sentencing presumption based on private versus public sector corruption Public sector corruption typically attracts a custodial sentence. Although this might be typical, the Chief Justice (the “CJ“) in his decision highlighted that the perception that public sector corruption typically attracts custodial sentences while private sector corruption typically attracts the imposition of a fine is wrong and is not reflective of the law in Singapore. Singapore is taking private sector corruption increasingly seriously. Where private sector agents are concerned, the offences which register a lower level of culpability can be dealt with by the imposition of fines. These are cases where the amount of gratification is below $30,000 and where there is no real detriment to the interests of the principal. However, this in no way gives rise to the support or presumption in favour of non-custodial sentences for private sector corruption. Rather, it is critical to be sensitive to the specific nature of the corruption that one is concerned with. There are three broad and non-exhaustive categories in which private sector corruption can manifest. The CJ cautioned that these categories are meant only as analytical tools. They are as follows:
- Where the receiving party is paid for conferring on the paying party a benefit that is within the receiving party’s power to confer, without regard to whether the paying party ought properly to have received that benefit. This is typically done at the payer’s behest.
- Where the receiving party is paid to forbear from performing what he is duty bound to do, thereby conferring a benefit on the paying party. Such benefit typically takes the form of avoiding prejudice which would be occasioned to the paying party if the receiving party discharged his duty as he ought to have. This is also typically done at the payer’s behest.
- Where a receiving party is paid so that he will forbear from inflicting harm on the paying party, even though there may be no lawful basis for the infliction of such harm. This is typically done at the receiving party’s behest.
In the first category, whether the custodial threshold is crossed will depend on the facts. The second category of cases will frequently attract custodial sentences. In the third category, corruption involves interference with or deprivation of a person’s legitimate rights unless a bribe is paid. A custodial sentence may generally be expected. The CJ emphasised that this type of corruption is antithetical to everything Singapore stands for as it undermines the confidence that a person needs in order to do business in Singapore. It also destroys the notion that business in Singapore is clean and transparent and that rules are there for good reason rather than to give people in whom discretion is vested or upon whom duties are placed, opportunities to have their palms greased and pockets lined.
The sentence in the present case
The facts of the first charge fall squarely within the third category. The second charge may be associated with both the second and third categories. As such, the two-month sentence imposed by the court below was manifestly inadequate. However, in meting out a higher sentence, the CJ did not think that the right approach was an extension of the public service rationale. This is because it did not involve any regulatory or oversight considerations that warranted the extension of the public service rationale. The arrangement put in place by the oil terminal was a purely commercial one which the terminal operator had chosen to establish. In considering the sentence determined by the court below, the CJ held that:
- the District Judge (“DJ“) had failed to appreciate the type of corruption involved in this case. The system here was one dependent on Syed’s diligent and faithful discharge of his duties with potentially grave consequences;
- the DJ failed to appreciate the safety risks that were involved in this case. This should be regarded as an aggravating factor;
- the DJ erred in considering Syed as a first-time offender. He had been charged in relation to three separate incidents;
- the DJ erred in giving weight to Syed’s guilty plea. The CJ did not agree that his plea of guilt was timely and evidence of remorse. Moreover, he had been caught red-handed and the corrupt payments were only recovered when the CPIB searched his house.
Accordingly, a sentence of six months’ imprisonment per charge was appropriate.
Comments
The present case demonstrates the court’s abhorrence for corrupt behaviour. The CJ went to great lengths to emphasise how such corrupt acts undermine the collective effort of our society to institutionalise a zero-tolerance culture towards corruption. There is no prima facie sentencing presumption. The Courts must and will take cognisance of the facts and ensure that an appropriate sentence is ordered.
