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Bribery & Corruption – Singapore

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Bribery & Corruption – Singapore Bribery & Corruption First Edition Contributing Editors: Jonathan Pickworth & Deborah Williams Published by Global Legal Group CONTENTS Preface Jonathan Pickworth & Deborah Williams, Dechert LLP Albania Silva Velaj & Sabina Lalaj, Boga & Associates 1 Argentina Marcelo den Toom & Mercedes de Artaza, M. & M. Bomchil 7 Australia Justin McDonnell, David Eliakim & Natalie Caton, King & Wood Mallesons 15 Bangladesh Dr. Kamal Hossain, Dr. Kamal Hossain and Associates 25 Belgium Joost Everaert, Nanyi Kaluma & Anthony Verhaegen, Allen & Overy LLP 30 Brazil Maurício Zanoide de Moraes, Caroline Braun & Daniel Diez Castilho, Zanoide de Moraes, Peresi & Braun Advogados Associados 36 Canada Mark Morrison, Paul Schabas & Michael Dixon, Blake, Cassels & Graydon LLP 44 Cayman Islands Martin Livingston & Brett Basdeo, Maples and Calder 52 China David Tiang, King & Wood Mallesons 60 Czech Republic Helena Hailichová & Eva Haisová, Johnson Šťastný Kramařík, advokátní kancelář, s.r.o. 70 France Julia Minkowski & Romain Fournier, Temime & Associés 78 Germany Sascha Kuhn, Simmons & Simmons LLP 87 Hong Kong Kyle Wombolt, Robert Hunt & Janice Tsang, Herbert Smith Freehills 95 India Siddharth Thacker, Mulla & Mulla & Craigie Blunt & Caroe 105 Indonesia Kyle Wombolt, Charles Ball & Narendra Adiyasa, Hiswara Bunjamin & Tandjung (HBT) in association with Herbert Smith Freehills 113 Ireland Megan Hooper & Heather Mahon, McCann FitzGerald 121 Italy Roberta Guaineri & Francesca Federici, Moro Visconti de Castiglione Guaineri 131 Japan Daiske Yoshida & Junyeon Park, Latham & Watkins 142 Mexico Edgar M. Anaya & Paula Nava González, Anaya Abogados Asociados, S.C. 151 Singapore Ing Loong Yang & Tina Wang, Latham & Watkins 160 South Africa Dave Loxton, Werksmans Attorneys 168 Spain Esteban Astarloa & Patricia Leandro, Uría Menéndez Abogados 176 Switzerland Grégoire Mangeat & Fanny Margairaz, Eversheds Ltd 186 Thailand Kyle Wombolt, Chinnawat Thongpakdee & Michelle Yu, Herbert Smith Freehills (Thailand) Ltd 197 Turkey Gönenç Gürkaynak & Ç. Olgu Kama, ELIG, Attorneys-at-Law 206 United Kingdom Jonathan Pickworth & Deborah Williams, Dechert LLP 211 USA Cheryl A. Krause & Elisa T. Wiygul, Dechert LLP 220 Singapore Ing Loong Yang & Tina Wang Latham & Watkins Recognised as one of the least corrupt countries in the world, Singapore is renowned for its Government’s strong will to keep corruption at bay. Singapore’s rigorous and effective corruption control system is borne out by its consistently-high ranking in Transparency International’s Corruption Perceptions Index. Overview of Singapore’s anti-corruption legal framework Anti-corruption laws of Singapore The history of Singapore’s battle against corruption can be traced back to its pre-Independence era.1 The primary anti-bribery statute, the Prevention of Corruption Act (Cap. 241) (“PCA”), was enacted in 1960, right after Singapore attained self-government in 1959 and even before Singapore’s declaration of independence in 1965. Since then, the PCA has undergone numerous amendments to reinforce the investigative powers of the investigation offi cers, and enhance punishments for corruption. At the heart of the PCA is a general prohibition on giving, promising or offering, or soliciting, accepting or agreeing to receive a gratifi cation in either the public or private sector.2 Both the demand (the recipient) and supply (the giver) sides of bribery, as well as the intermediaries arranging the same, are caught by the PCA. The word “gratifi cation” is statutorily given a very broad defi nition to include money or any gift, loan, fee, reward, commission, valuable security or other property or interest in property; any offi ce, employment or contract; any part or full payment, release or discharge from any obligation or other liability; any other service, favour or advantage of any description whatsoever; and any offer, undertaking or promise of any such gratifi cation. No particular type of payment or benefi t receives any special treatment under the PCA. Technically, any gift, travel expenses, meal or hospitality payments provided with the requisite corrupt intent will arguably fall within the defi nition of “gratifi cation”, and provision or acceptance of the same could constitute an offence under the PCA. As illustrated in a recent high-profi le corruption case involving a former senior Government offi cial of Singapore, a sexual favour is considered “gratifi cation” for the purpose of the PCA.3 Both individuals and companies can be held liable for bribery offences. The term “person” is defi ned in the Singapore Interpretation Act to include “any company or association or body of persons, corporate or unincorporated”. A special tool has been introduced in the fi ght against public sector corruption, in the form of a statutory presumption. In cases where bribes are paid to a person employed by the Government or a public body, by any person who has or seeks to have dealings with the Government or any public body, the accused public offi cer would be presumed to have received the gratifi cation corruptly as an inducement or reward, unless the contrary could be proved by him.4 This presumption of corruption provides further ammunition for the armoury of the Public Prosecutor. Not surprisingly, for the purpose of charges under the PCA against public servants, the term “public body” is defi ned broadly to include 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 GLI - Bribery & Corruption First Edition 160 www.globallegalinsights.com © Published and reproduced with kind permission by Global Legal Group Ltd, London Latham & Watkins Singapore pursuance of any written law. It was found by the Singapore High Court in a recent corruption case that the National University of Singapore (NUS) is a “public body” under the PCA, and the provision relating to presumption of corruption in the PCA applies to the professor employed by NUS, who was charged with corruption offences in Court.5 Unlike the US Foreign Corrupt Practices Act (“FCPA”), facilitation payments are not expressly permitted or dealt with under the PCA. Such payments, if made or accepted with the requisite corrupt intent, would be considered to fall within the scope of “gratifi cation” under the PCA. The PCA itself, with only 37 sections, is a relatively short statute drafted in simple language. Yet, the PCA is considered by the enforcement agencies to be effective and have provided them with suffi cient teeth and cutting edge for investigation, adjudication and conviction of corruption crimes. There are a number of distinctive features of the PCA, which may differ from anti-corruption laws in other countries. For example, under the PCA, an acceptor of gratifi cation can be considered guilty even if he does not intend to, or does not in fact, return the favour, or even if he does not have the power, right or opportunity to return the favour.6 The PCA expressly disallows admission of evidence to show that any alleged gratifi cation is customary in any profession or trade.7 An example is that of giving “red packets”8 during the Chinese New Year festival − a customary practice and very widely practised by Singaporean Chinese − is not a valid defence per se in a corruption trial. The Court would examine the relevant factors, such as the amount contained in the “red packet”, the timing when the “red packet” was given, the dealings between the giver and recipient of the “red packet”, etc. to ascertain whether such “red packet” is corruptly given or accepted.9 Further, the PCA allows pecuniary resources or property disproportionate to known sources of income, which cannot be satisfactorily accounted for by an accused person, to be admissible as corroborative evidence of corruption in Court.10 It is a statutory liability for every person under investigation to give information. The PCA makes it a seizable offence for any person who knowingly provides any false or misleading information in this regard.11 Extra-territorial jurisdiction can be exercised against Singapore citizens committing corruption offences outside Singapore. Where any Singapore citizen commits a corruption offence outside Singapore, he may be dealt with in respect of that offence as if it had been committed within Singapore.12 Besides the PCA, the Penal Code (Cap. 224) contains provisions relating to bribery of public servants. However, the Penal Code is a much older statute compared with the PCA, and is nowadays rarely used as a basis for prosecuting bribery offences. Scenarios that are covered by the Penal Code include a public servant (including any person expecting to be a public servant) taking a gratifi cation, other than legal remuneration, in respect of an offi cial act; a person taking a gratifi cation in order to infl uence a public servant by corrupt or illegal means; and a person taking a gratifi cation for the exercise of personal infl uence with a public servant.13 One illustration provided under the Penal Code in respect of these anti-bribery provisions is that: “A is a public servant. B, A’s wife, receives a present as a motive for soliciting A to give an offi ce to a particular person. A abets her doing so. B is punishable with imprisonment for a term not exceeding one year, or with fi ne, or with both. A is punishable with imprisonment for a term which may extend to 3 years, or with fi ne, or with both.” Whilst not defi ned in the Penal Code, the explanation provided in the Penal Code makes it clear that the word “gratifi cation” should not be restricted to pecuniary gratifi cations, or to gratifi cations estimable in money. To further ensure the integrity of members of Parliament and Government offi cials in the course of performing their offi ce duties, provisions to such effect have been expressly included in the relevant legislation.
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    Sara Hossain Advocate, Supreme Court of Bangladesh Partner | Deputy Head of Chambers Dr Kamal Hossain and Associates Chamber Building 2nd Floor 122-124 Motijheel C.A. Dhaka-1000, Bangladesh T +8802 9552946, 9564954 | M +8801713 031828 E [email protected] Skype: sarahossain_3 PROFESSIONAL QUALIFICATIONS 1989 Called to the Bar of England and Wales from the Honourable Society of Middle Temple, London, United Kingdom 1990 Enrolled as an Advocate of the District Court, Dhaka by the Bangladesh Bar Council 1992 Enrolled as an Advocate of the High Court Division of the Supreme Court of Bangladesh 2008 Enrolled as an Advocate of the Appellate Division of the Supreme Court of Bangladesh EDUCATION 1988 B.A. (Hons) in Jurisprudence Wadham College, University of Oxford 1989 Barrister-at-Law Middle Temple, London PROFESSIONAL EXPERIENCE 2009-Present Partner, Dr Kamal Hossain and Associates Practice Areas: Administrative Law; Commercial and Corporate; Company Law; Family Law; General Practice; Human Rights; Litigation. 1 2003-2009 Associate, Dr Kamal Hossain and Associates 1997-2003 Legal Officer (South Asia) INTERIGHTS (International Centre for the Legal Protection of Human Rights), UK 1990—1997 Associate, Dr Kamal Hossain and Associates 1989-1990 Pupillage with Mr Aminul Huq, Senior Advocate, former Attorney General of Bangladesh 1989 Pupillage at Syed Ishtiaque Ahmed and Associates AWARDS AND OTHER ACHIEVEMENTS 2016 Received a ‘Women of Courage’ award from the US State Department 2008 Named as a “Young Global Leader” by The World Economic Forum 2007 Named as an “Asia 21 Fellow” by The Asia Society, New York, USA 2005 Named as one of “Top Ten Leading Women”, in annual awards by Ananya (national Bengali language magazine) 1993-1994 Received “Human Rights Lawyer Award” by The Lawyers Committee for Human Rights (now “Human Rights First”), New York, USA MAJOR CASES 1.
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