10 July, 2015
| Category
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Example
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Sentence
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| 1. Where the receiving party is paid to confer 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
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The receiving party purchases or favourably recommends the goods or services offered by the paying party
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Whether the custodial threshold is crossed depends on the facts.
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| 2. 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
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The receiving party, who is under a duty to inspect the paying party’s goods or work, slackens in his inspection or turns a blind eye to any deficiencies in the paying party’s goods or work.
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Custodial sentences will frequently be imposed.
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| 3. Where the 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
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A bribe is solicited by a person who receives applications for licences or permits, to ensure that an applicant’s application is timeously processed and not somehow inexplicably misplaced
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he receiving party can generally expect a custodial sentence, as corruption here involves interference with or deprivation of a person’s legitimate rights unless a bribe is paid
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The Chief Justice emphasized that these three categories were intended only as analytical tools for the diverse factual scenarios in which corruption may manifest itself, and were not meant to be determinative of any case. Instead, they served as a reminder that sentencing, especially in the context of corruption, is an intensely factual exercise.
Facts And Charges
Turning to the facts of this case, the Accused was a 50-year old Bangladeshi national employed by a marine surveyor, PacMarine Services Pte Ltd, as a trainee Associate Consultant. His duties included conducting inspections of vessels seeking to enter an oil terminal. Specifically, he was responsible for, amongst others, certifying that the vessel had the correct documents as well as ensuring that the cargo was properly documented and the vessel was seaworthy and free from any high-risk defects.
Where the vessel inspected was identified to have low to medium-risk defects, the vessel would generally be allowed to dock at the oil terminal where rectification works would be carried out. However, where the defects were classified as high-risk, rectifications would have to be carried out before the vessel would be permitted to enter the oil terminal. Otherwise, the vessel would pose a risk to the terminal and those working inside the terminal.
The Accused was charged with a total of three offences under s 6(a) of the PCA, two of which were proceeded with. Under the first charge, the Accused highlighted several high-risk observations to the ship master after conducting a vessel safety inspection. When asked how he could resolve the situation, the Accused informed the ship master that money would do so. The ship master then agreed to pay the Accused US$3,000 and in return, the Accused omitted to include the “high-risk observations” in the final printed report for the vessel.
Subsequently, the same ship master reported the incident and the Corrupt Practices Investigation Bureau (“CPIB”) launched a sting operation, which formed the basis of the second charge. The same vessel was prepared beforehand with high-risk defects which ought to have been highlighted in the inspection report.Again, after inspecting the vessel, the Accused highlighted several high-risk defects, and asked the ship master to pay him money again to avoid the problem. The ship master passed the Accused USD 3k which had been prepared beforehand and the Accused proceeded to print out the inspection report omitting any mention of the high-risk observations. The Accused was then arrested by the CPIB.
High Court's Decision
The threshold issue considered by the High Court was whether the public service rationale should apply in this case. The Prosecution submitted that the public service rationale was triggered as the Accused’s actions had placed lives and property at risk by allowing a vessel with high-risk defects to berth at an oil terminal on one occasion and allowing another to pass an inspection with the consequence that it would have been allowed entry into the terminal.
The Chief Justice, however, disagreed with the Prosecution’s submission because, although a strategic industry was involved, there were no regulatory or oversight considerations to warrant the extension of the public service rationale. Instead, the arrangement that had been put in place by the oil terminal was a purely commercial one which the terminal operator had chosen to establish.
Although the public interest rationale did not apply in this case, that alone was not sufficient for a non-custodial sentence or a short custodial sentence to be imposed. The Chief Justice found that the DJ had failed to appreciate four material aspects in sentencing the Accused:
(a) Type of corruption involved: The relevant context here involved a system which depended on the Accused’s diligent and faithful discharge of his duties with potentially grave consequences if he failed to do so. As such, the Accused was in a position to exploit good faith vessel operators who wished to enter the oil terminal.
(b) Safety risks involved: Although the precise nature of the safety risks were not identified in the Prosecution’s statement of facts, the High Court considered that it was sufficient that safety risks had been posed to the oil terminal and the workers inside the terminal as a result of the Accused accepting the bribes.
(c) First-time offender: The High Court held that the Accused should not be considered a first-time offender as he had committed multiple offences relating to three separate incidents.
(d) Guilty plea: The High Court disagreed that the Accused’s guilty plea was timely as he had been caught red-handed and the corrupt payments were recovered only after the CPIB officers searched his living quarters.The High Court also took into account several aggravating factors in enhancing the Accused’s sentence to six months’ imprisonment per charge.
Conclusion
This case has established that in deciding whether a custodial sentence is warranted in cases of private sector corruption, critical factors to be considered include the type of corruption that has occurred and its effect on the core values that Singapore stands for. In this regard, the fact that the public service rationale does not apply is not in itself a sufficient reason for a non-custodial sentence. Other relevant factors to be taken into account include the circumstances of the offender and the presence of aggravating factors.
For further information, please contact:
Eng Hui Chua, Partner, RHTLaw TaylorWessing
