By Andy Leck and Andrew Martin (Baker McKenzie Singapore)
Primary foreign anti-bribery legislation and enforcement agencies
Primary anti-bribery legislation
- Prevention of Corruption Act 1960 (PCA)
- Penal Code (revised 2008)
Anti-bribery enforcement agencies
- Investigating agencies: Corrupt Practices Investigation Bureau (CPIB); Commercial Affairs Department of the Singapore Police Force
- Prosecuting agency: Public Prosecutor, Financial and Technology Crime Division of the Attorney-General’s Chambers
Offences
Prevention of Corruption Act 1960 (PCA)
Prohibition on corrupt transactions – generally and public officials (s5)
Liability attaches to any person who :
(a) Corruptly solicits, receives, or agrees to receive for himself or any other person; OR
(b) Corruptly gives, promises, or offers to another (whether for their benefit or the benefit of another) any gratification as an inducement or reward for:
- any person doing, or forbearing to do something in respect of any matter or transaction (actual or proposed); OR
- any member, officer, or servant of a public body doing, or forbearing to do something (actual or proposed) concerning the public body.
Prohibitions on corrupt transactions with agents[1] (s6)
Liability attaches to :
(a) Any agent who corruptly
- accepts,
- obtains,
- agrees to accept, or
- attempts to obtain,
from any person any gratification as inducement or reward for doing or forbearing to do, or for having done or forborne from doing any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs of business; OR
(b) Any person who corruptly
- gives,
- agrees to give, or
- offers
any gratification to any agent as an inducement or reward for doing or forbearing to do, or for having done or forborne from doing any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business; OR
(c) Any person who knowingly gives to an agent a false document (or an agent who knowingly uses a false document) intended to mislead the principal.
Corruptly procuring withdrawal of tenders (s10)
(a) It is an offence for a person with intent to obtain from the Government or any public body a contract for performing any work / service / supply / etc to offer another who has made a tender for the contract any gratification as inducement or reward for withdrawing their tender.
(b) It is also an offence for a person to solicit or accept any gratification as inducement or reward for withdrawing his tender for the contract.
Bribing a Member of Parliament (MP) (s11)
(a) It is an offence to offer any gratification to a MP as an inducement or reward for such MP doing or forbearing to do any act in his capacity as MP.
(b) It is also an offence for an MP to solicit or accept gratification under such circumstances.
Bribing a member of a public body (s12)
(a) It is an offence to offer any gratification to any member of a public body as an inducement or reward for :
- the member’s voting, or abstaining from voting, at any meeting of the public body in favour of, or against, any measure, resolution or question submitted to that public body;
- the member’s performing, or abstaining from performing, or his aid in procuring, expediting, delaying, hindering or preventing the performance of any official act; or
- the member’s aid in procuring or preventing the passing of any vote or the granting of any contract or advantage in favour of any person.
(b) It is also an offence for a member of a public body to solicit or accept an inducement or reward under the same circumstances.
Company liability: The PCA can apply to both companies as well as individuals as the Interpretation Act defines ‘person’ to include ‘any company or association or body of persons, corporate or unincorporated‘.
Extraterritorial application (s37) – Singapore citizens are subject to the PCA for acts committed both within and outside Singapore. However, any proceedings against any person under s. 37 which would be a bar to subsequent proceedings against that same person for the same offence (if committed in Singapore), shall be a bar to further proceedings against him, under any written law for the time being in force relating to the extradition of persons, in respect of the same offence outside Singapore.
Defences
The fact that questionable payments are made pursuant to industry norms or business customs, will not constitute a defence to any prosecution brought under the PCA[2] and any evidence pertaining to such customs will be inadmissible in any criminal or civil proceedings under s23 of the PCA.[3]
The PCA does not provide safe harbor monetary guidelines for gifts, hospitality expenses or other entertainment. There are no favourable presumptions if such gifts are below a certain monetary value.
In fact, gratification in the form of inducement or reward need not be monetary and a charge for corruption can be made out notwithstanding payment of consideration for the gratification. For example, the opportunity to purchase shares in a private company was considered as gratification. There was no need to prove that payment for the shares was a sham or inadequate[4].
Penal Code (revised 2008)
Taking a gratification in order to influence a public servant by corrupt or illegal means (s162)
It is an offence for a person to accept, obtain, agree to accept, or attempt to obtain from any person, whether for himself or for any other person, any gratification as a motive or reward for inducing, by corrupt or illegal means, any public servant :
- to do or forebear to do any official act, or
- in the exercise of official functions to show favour or disfavour to any person, or
- to render any service or disservice to any person, with the Government, with any Member of Parliament, the Cabinet or with any public servant.
Taking gratification for the exercise of personal influence over a public servant (s163)
It is an offence for a person to accept, obtain, agree to accept, or attempt to obtain from any person, whether for himself or for any other person, any gratification as a motive or reward for inducing, by the exercise of personal influence, any public servant :
- to do or forebear to do any official act, or
- in the exercise of official functions to show favour or disfavour to any person, or
- to render any service or disservice to any person, with the Government, with any Member of Parliament, the Cabinet or with any public servant.
Extraterritorial application (s4) – applicable to Singapore citizens and permanent residents only. Any act or omission committed by a public servant outside of Singapore in the course of his or her employment that would constitute an offence in Singapore will be deemed to have been committed in Singapore.
Defences
The General Exceptions in Part IV of the Penal Code may be pleaded as a defence. General Exceptions such as mistake of fact (s76) and compulsion by threats (s94) may be of relevance to these sections.
Penalties
Generally:
The Singapore Government Instruction Manual debars companies that are guilty of corruption involving public officials from public contract tenders.
Prevention of Corruption Act 1960 (PCA)
Prohibition on corrupt transactions – generally and public officials (s5)
- Penalties may include a fine not exceeding SGD100,000; or up to 5 years’ imprisonment, or both (s5).
- The penalty of imprisonment increases to a maximum of seven years if the offence is connected to a government contract (s7).
- If convicted and where the value of the gratification can be assessed, the Court can additionally fine the perpetrator to the value of the gratification (s13).
- Where any gratification has, in contravention of the PCA, been given by any person to an agent, a principal may recover as a civil debt the amount or money value of the bribe from either its agent or the giver of the bribe (s14(1)). The fact that the agent has already disgorged an amount equal to the bribes as a penalty under the criminal proceedings does not preclude his principal from recovering the bribe as a civil debt under s14[5]. Under s. 14(2), the right of the principal to recover the bribe paid as a civil debt under s. 14 does not prejudice any other legal rights a principal may have to recover from his agent any money or property in excess of the amount of the bribe[6].
Prohibitions on corrupt transactions with agents (s6(a)-(c))
Penalties include a fine not exceeding SGD100,000; or up to 5 years’ imprisonment, or both (s6)
Corruptly procuring withdrawal of tenders (s10)
Penalties include a fine not exceeding SGD100,000; or up to 7 years’ imprisonment, or both (s10).
Bribing a MP (s11)
Penalties include a fine not exceeding SGD100,000; or up to 7 years’ imprisonment, or both (s11).
Bribing a member of a public body (s12)
Penalties include a fine not exceeding SGD100,000; or up to 7 years’ imprisonment, or both (s12).
Penal Code (revised 2008)
Penalties include:
- imprisonment for a term which may extend to 3 years, or a fine, or both (s162);
- imprisonment for a term which may extend to 1 year, or a fine, or both (s163).
[1] Pursuant to section 2 of the PCA, an “agent” is defined to mean any person employed by or acting for another, and includes a trustee, administrator and executor, and a person serving the Government or under any corporation or public body, and for the purposes of section 8 of the PCA, includes a subcontractor and any person employed by or acting for such subcontractor.
[2] See Public Prosecutor v Soh Cham Hong [2012] SGDC 42
[3] Chan Wing Seng v Public Prosecutor [1997] 1 SLR(R) 721.
[4] PP v Teo Chu Ha [2014] SGCA 45
[5] Carrefour Singapore Pte Ltd v Leong Wai Kay [2006] SGHC 160
[6] Ibid.