A guest today from Wilson Ang (a Partner at Norton Rose Fulbright in Singapore).
Corruption in Singapore has recently been characterised by high-profile cases involving public officials. These cases involving two former senior public officials allegedly obtaining sexual gratification in exchange for favouring certain companies and a university professor allegedly obtaining sexual gratification and other gifts from a student in exchange for better grades, have raised interesting issues in relation to Singapore’s anti-corruption laws.
On 14 May 2013, former director of the Central Narcotics Bureau (CNB), Ng Boon Gay was acquitted of four charges of corruptly obtaining sexual gratification from a female sales executive in exchange for assisting to further the business interests her two IT company employers on the grounds that there was neither a corrupt element, nor guilty knowledge on the part of the accused as the parties were in a pre-existing romantic relationship.
Conversely, both Peter Lim and Tey Tsun Hang faced guilty verdicts. On 31 May 2013, Lim, the ex-commissioner of the Singapore Civil Defence Force (SCDF), was convicted of one charge of corruptly obtaining sexual gratification from a female general manager of a vendor in the IT industry in exchange for favouring the business interests of her employer. He later admitted to seven other corruption charges for trysts with two other women, who were working for technology companies that were SCDF vendors. He was sentenced to six months in jail. On 28 May 2013, Tey, a professor at the National University of Singapore (NUS), was found guilty of six charges of corruption including two acts of sexual intercourse with, and the receipt of four gifts of varying monetary values from, one of his law students and was sentenced to five months in jail. Both Lim and Tey claimed they were in a romantic relationship with their gratification-giver. However, these claims failed.
While these cases captured the attention of the media and the public, the judgments handed down by the courts also clarified and advanced the understanding of the Singapore legal landscape. Here are ten things to know about anticorruption developments in Singapore.
1 – Sex is Gratification
It is trite law that sexual favours amount to gratification under Singapore laws. Sex between consenting adults in an intimate relationship can amount to gratification for the purposes of establishing corruption. Gratification is defined in isolation without the notion of corrupt intent. It would be erroneous to define gratification by the reason it takes place. The context in which the gratification was received is only relevant to establish the intention behind it.
2 – Presumption of Guilt
If any gratification is given 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 that public body, it is presumed that there is corrupt intent and that the gratification was an inducement or reward, unless this presumption is successfully rebutted on the facts.
In all three cases, the “public body” test was satisfied. However, only Ng managed to successfully rebut the presumption. The judge found that the sexual acts took place in the context of a romantic relationship, and that both the intentions of the recipient and giver of gratification were innocuous. Although the presumption of corruption was triggered by law when the sexual relationship began, due to the fact that Ng knew of her dealings with the Government, Ng was able to successfully rebut the presumption.
3 – Quid Pro Quo Not Needed
Under Singapore law, on satisfaction of the “public body” test, there is no need to prove that the receipt of gratification was an inducement for a specific corrupt act. It is sufficient for the gratification to be given in anticipation of some future corrupt act. However, the accused must have corruptly accepted the gratification i.e. believing that it was offered as an inducement, before this presumption is triggered.
Case law refers to the sense of obligation the receipt of the gratification must create in the recipient. The relationship has been characterised by the courts as the purchase of the recipient’s “servitude,” establishing a “retainer relationship and the accused being “beholden to” the giver.
4 – Ability to Favor Not Required
Under Singapore law, on satisfaction of the “public body” test, there is no requirement for the accused to have the ability to show favor in exchange for the gratification. It is sufficient that the accused believed that the gratification was offered as an inducement to favourable treatment.
In Tey’s case, it was argued that Tey was never in a position to show favour in relation to the student’s grades due to NUS’ anonymous marking system. As the defence failed to rebut the presumption of corrupt intent, Tey’s supposed lack of power to alter grades had no effect on his guilt.
5 – Gift Thresholds in Singapore
Although there is no specific guidance on monetary thresholds of gifts in Singapore law, practical guidance can be found in the approach of public bodies.
The Instruction Manual, published by the Singapore Government, which applies to all Singapore public officials, details when gifts and entertainment can be accepted and when they must be declared. As a matter of practice, all gifts need to be approved by a permanent secretary and only gifts under S$50 can be accepted. Any gifts valued at more than S$50 can only be kept if they are donated to a governmental department or independently valued and purchased from the Government. Taking a slightly different approach, Tey’s case revealed that the NUS Policy on Acceptance of Gifts by Staff requires consent to be sought for all gifts over S$100.
6 – What is a Public Body?
Under Singapore law, the definition of “public body” is broad, encompassing a wide range of bodies on a purposive reading. Both the CNB and SCDF were held to be public bodies, being departments of the Government.
Despite the defence’s arguments, NUS was also found to be a public body in Tey’s case, being a “corporation … which has the power to act… relating to… public utility or otherwise to administer money levied or raised by rates or charges…”, since the public utility include the provision of public tertiary education.
NUS’ receipt of funds from the Government and function as an instrument of implementing the Government’s tertiary education policy further supported the finding that NUS was a “public body.”
7 – Violation of Internal Codes and Policies Can Indicate Corrupt Intent
If internal codes of conduct and policies and procedures are knowingly breached, the court may infer that the accused knew what he did was corrupt. Therefore, knowingly acting in conflict of internal codes or policies invites an inference of guilty knowledge. In Tey’s case, his breach of the NUS Code of Conduct was found to be tantamount to corrupt intent.
8 – Not Every Conflict of Interest Permits the Inference of Corruption
A corrupt element is not always constituted due to the contravention of some code or policy. The fact that Ng’s sexual acts were carried out in the context of a romantic relationship led to the court’s finding that there was no corruption, despite his breach of internal conflict of interest rules.
9 – Statements Can Be Retracted, Credibility Can Be Impeached
The retraction of earlier statements made to enforcement agencies was a common feature. Whilst this is procedurally permitted by the courts, the risk is that the witness’s credibility will be impeached. Applications for impeachment were made in all three cases. However, the court will only impeach witnesses if there are serious discrepancies or material contradictions in their evidence.
Both Lim himself and Ng’s gratification-giver were successfully impeached. One should note, however, that the totality of the impeached witness’ evidence does not have to be rejected by the court. The evidence must be scrutinised to determine what is true and what should be disregarded.
10 – Focus on Abuse of Power and Position
The abuse of power and position has been the common underlying basis.
In Tey’s case, it was determined that there was a clear imbalance of power between Tey and his student. The court emphasised his self-portrayal as a person who could influence her academic prospects, that he revealed her examination results before they were officially released, and that he took her out for lunch and disclosed information to her that was not available to other students.
In Lim’s case, the court pointed to Lim’s substantial control over SCDF’s procurement procedures and noted that, whilst his gratification-giver may not have had direct knowledge of the full extent of his power, she did have an impression of his substantial influence. The court further determined that Lim was aware that she would factor this in when he asked her for oral sex, considering that she did not want her company’s business interests with SCDF to be negatively affected but wanted to have them enhanced.
Conversely, the court in Ng’s case pointed to the lack of imbalance of power, noting that his gratification-giver was not “someone who could be easily taken advantage of or someone who would cower in the fear of persons in authority”.
[A version of this post first appeared on www.cfoinnovation.com]