'2013 Annual Review of Criminal Law (Singapore)', Singapore Academy of Law Annual Review, Volume 14,...

(2013) 14 SAL Ann Rev Criminal Law 273

13. CRIMINAL LAW

CHEAH Wui Ling LLB (Hons), LLM (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-Law (New York State); Assistant Professor, Faculty of Law, National University of Singapore.

Introduction

13.1 In 2013, the Singapore judiciary issued a number of important and interesting decisions on corruption, drug offences, commercial sex with minors, and the interpretation of criminal law statutes. On the one hand, the Judiciary continues to develop a criminal law jurisprudence that seeks to sensitively differentiate between levels of blameworthiness, and rigorously identify the elements of an offence that should be proved before an individual is subject to criminal sanctions. In doing so, judges have been careful to ground their decisions and reasoning in legislative text. This may reflect the Judiciary’s desire to avoid being perceived as engaging in judicial legislation.

13.2 In several cases, Singapore judges closely examined legislative text and intent in elaborating on the specific elements comprising an offence. Among others, and as further explained below, the Court of Appeal emphasised that an accused seeking to rebut the presumption of knowing the nature of the drugs as imposed by the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) only needs to show that he did not know the nature of the drugs, rather than lack of recklessness or negligence regarding their nature. By insisting on the careful scrutiny of criminal law statutes, rather than their broad interpretation, these decisions place a limit on prosecutorial powers and the reach of the criminal law.

13.3 On the other hand, judges were willing to adopt a stricter approach towards the accused when motivated by social objectives and protective concerns, especially those recognised by Parliament. Singapore courts did not hesitate to approve of Parliament’s removal of the defence of reasonable mistake of age for the offence of commercial sex with minors. Also, in a number of high-profile corruption cases, Singapore judges did not hesitate to criticise the accused who had taken advantage of individuals from whom they had received sexual gratification. Judges take a broader approach to interpreting criminal laws when seeking to protect those perceived as vulnerable.

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General concepts

Knowledge: Rebuttal of presumed knowledge under s 18(2) of the Misuse of Drugs Act

13.4 The following cases dealt with the question of how an accused is able to rebut the presumption of knowing the nature of the drug, as imposed by s 18(2) of the MDA when certain facts are in place. The relevant provisions are:

18.–(1) Any person who is proved to have had in his possession or custody or under his control –

(a) anything containing a controlled drug;

(b) the keys of anything containing a controlled drug;

(c) the keys of any place or premises or any part thereof in which a controlled drug is found; or

(d) a document of title relating to a controlled drug or any other document intended for the delivery of a controlled drug,

shall, until the contrary is proved, be presumed to have had that drug in his possession.

(2) Any person who is proved or presumed to have had a controlled drug in his possession shall, until the contrary is proved, be presumed to have known the nature of that drug.

(3) The presumptions provided for in this section shall not be rebutted by proof that the accused never had physical possession of the controlled drug.

13.5 In Mervin Singh v Public Prosecutor [2013] SGCA 20 (“Mervin Singh”), the Court of Appeal considered whether the two appellants had successfully rebutted the presumption set out in s 18(2) of the MDA. The Central Narcotics Bureau (“CNB”), on 27 November 2008, trailed a car driven by Sallehuddin, a friend of the first appellant, Mervin Singh. There was a third person in the car, Rizal. The first appellant asked Sallehuddin to stop at a car park at Tampines Avenue 9, alighted and walked to the void deck. There, he made two outgoing calls to Subashkaran, the second appellant. He then received an incoming call from the second appellant. Shortly after, the first appellant walked towards a lift, the door opened, and the second appellant walked out. The first appellant walked into the lift and carried out a pink detergent box. The second appellant then walked to a car parked near the block and while getting grocery bags from the car, was arrested by police. The first appellant got another call from one Nizam (also known as “Sopak”), who instructed the first appellant to meet him at a specific coffeeshop in Tampines. The first appellant asked Sallehuddin to drive


him to the coffeeshop. On the way there, they were stopped and arrested by the police. The pink box was found between the first appellant’s legs and was not sealed. Nine packets of drugs that were subsequently tested to be diamorphine were removed. The police later raided both the first and second appellant’s flat and room respectively. They found diamorphine, a blue sealer, a box of aluminium foil, two pieces of aluminium foil, each containing a straw, and a rolled up note in the first appellant’s flat. They also found two cartons of contraband cigarettes in the second appellant’s room.

13.6 The main issue was whether both appellants had rebutted the presumption of knowledge regarding the nature of the drugs, which was activated by s 18(2) of the MDA. The Court of Appeal affirmed the legal principles set out in the earlier case of Nagaenthran a/l K Dharmalingam v Public Prosecutor [2011] 4 SLR 1156 (“Nagaenthran”). An accused, when seeking to overturn the presumption imposed by s 18(2) of the MDA (Nagaenthran at [27], cited in Mervin Singh at [26]):

… can do so by proving, on a balance of probabilities, that he genuinely believed that what was in his possession was something innocuous (eg, washing powder, when it was in fact heroin (see Warner v Metropolitan Police Commissioner [1969] 2 AC 256)), or that he thought it was a controlled drug other than the one actually found in his possession (eg, where he genuinely believed he was carrying ‘ice’, rather than heroin (see Khor Soon Lee v PP [2011] 3 SLR 201)).

13.7 Based on these principles, the Court of Appeal confirmed that an accused only has to prove that he did not know the nature of the drugs. He does not need to prove that he was not reckless or was not negligent regarding the nature of the drugs. The Court of Appeal’s confirmation that knowledge is the level of culpability required by s 18(2) of the MDA is to be welcomed, given earlier case law that had at times used the language of negligence or recklessness to describe the culpability of the accused under this same MDA provision.

13.8 The Court of Appeal found that the first appellant had successfully rebutted the presumption of knowledge imposed by s 18(2) of the MDA, contrary to the lower court’s finding. The first appellant had claimed that he thought the pink box he collected contained contraband cigarettes instead of drugs, but the lower court had found this explanation not “compelling”. The Court of Appeal observed (at [35]) that the lower court had not elaborated on why it found the first appellant’s story not “compelling” and, more importantly, that the first appellant was only required to rebut the presumption of knowledge “on a balance of probabilities, and not to provide ‘compelling’ evidence” [emphasis in original].


13.9 However, with respect to the second appellant, the Court of Appeal decided (at [58] and [59]) that he had failed to rebut the presumption of knowledge triggered by s 18(2) of the MDA because he had failed to disassociate himself from the phone call used to contact the first appellant and explain why his DNA had been found on the pink box and the two sheets of newspaper used to wrap one of the nine packets containing the drugs.

13.10 In this case, the Court of Appeal confirmed that all an accused needs to show to rebut the presumption of knowing the nature of the drugs imposed by the MDA is that he did not know the nature of the drugs. Nevertheless, as further explained below, Singapore judges have used language in some decisions that can be further improved. This is to ensure that Singapore courts clearly and consistently indicate that a lack of knowledge is the level of culpability that an accused needs to show to rebut the presumption of knowledge imposed by s 18(2) of the MDA.

13.11 The accused, in Public Prosecutor v Tiben A/L Katharsan [2013] SGDC 53, was entering the Woodlands Immigration Checkpoint when he was stopped by the police who found upon a search that the accused had a packet of diamorphine or heroin under the lining of the helmet he had been wearing. He was charged with importation of a packet of diamorphine under s 7 of the MDA.

13.12 To establish the charge, the Prosecution invoked the presumptions in s 18 of the MDA. As the accused had physical custody of the helmet, s 18(1) of the MDA applied and he was presumed to have had the drug in his possession unless he could prove otherwise.

13.13 The court found (at [30] and [31]) that the accused failed to rebut the s 18(1) presumption and that s 18(2) of the MDA would also apply:

Since the accused was presumed under s 18(1) of the MDA to have had possession of the controlled drug, s 18(2) of the MDA was triggered. The issue here was whether the accused had proved the contrary of what s 18(2) presumes, ie, whether he has proved that he did not know or could not reasonably be expected to have known that the controlled drug in the helmet was diamorphine.

The accused agreed he had ample time and opportunity to see what had been placed inside the helmet. He did not bother to take the simple step of checking despite the fact that he was told the helmet contained dangerous things and he thought he was doing something illegal. Further, he said he suspected that it contained drugs. In my judgment, the accused had turned a blind eye and I found that he had failed to rebut the presumption.


13.14 In order to rebut the presumption of knowledge activated by s 18(2), the court held that the accused would have to prove that he “did not know or could not reasonably be expected to have known” that the drug was diamorphine. The court’s use of the word “reasonably” in the section of its judgment cited above describes the level of culpability that the accused needs to prove in terms of reasonableness. This falls below knowledge and amounts to negligence. Nevertheless, the court also went on to highlight that the accused had failed to check what was inside the helmet despite having the opportunity to do so and that he had suspected that it contained drugs.

13.15 The court’s observation in this case that the accused would have to prove he “did not know or could not reasonably be expected to have known” may be interpreted in two different ways. The court may have been referring to how the accused had decided to take the risk that the helmet contained drugs. Or the court may have been alluding to the concept of wilful blindness through its observation of how the accused had consciously turned “a blind eye” and had been wilfully blind to the risk that the helmet contained drugs. In other words, the accused had chosen not to look inside the helmet so that he may remain “blind” to the fact that it contained diamorphine: see Chan Wing Cheong, “Culpability in the Misuse of Drugs Act: Wilful Blindness, the Reasonable Person and the Duty to Check” (2013) 25 SAcLJ 110 at 117–118, paras 20–22. This second interpretation is to be preferred of the two. Based on the Court of Appeal’s decision in Mervin Singh, s 18(2) of the MDA engages the knowledge of the accused, rather than his recklessness or negligence. It is only “wilful blindness”, rather than a simple awareness of risk or negligence, from which knowledge may be inferred.

13.16 In Public Prosecutor v Abdul Haleem bin Abdul Karim [2013] 3 SLR 734, the High Court’s language also seemed to blur the line between knowledge and recklessness. The first accused, Abdul Haleem, and the second accused, Muhammad Ridzuan (“Ridzuan”), faced two charges of trafficking in diamorphine under s 5(1) of the MDA. Both accused had known each other for a year before the offences. The Prosecution’s case was that the accused had agreed to purchase heroin to repack and sell. The second accused had met one Rosli who had asked him whether he was interested in trafficking drugs, and he was then repeatedly contacted by one Afad, who identified himself as Rosli’s friend. On 4 May 2010, when Afad called the second accused, the latter agreed to purchase one “ball” of heroin from the former. Afad told the second accused that he would be contacted by Gemuk who would tell him when he could collect the heroin from a jockey. The second accused made arrangements with the jockey and passed $7,000 to the first accused to collect the “ball” of heroin from the jockey. After collecting it, both accused packed the heroin into 20 sachets and kept the leftover to be packed with the next batch. Two days later, on 6 May 2010, the


second accused received a call from Gemuk who told him to get ready to collect more drugs, though the exact amount of drugs and how this was discussed was challenged by the accused. It was during this time, after he had collected the second batch of drugs in a sling bag, that the second accused was arrested by CNB officers. The CNB officers chased the second accused into a room in a flat where they found the two accused along with three others, who were not implicated. The CNB officers found the sling bag, 20 sachets and other drug paraphernalia in the room and asked the first accused where his sling bag was and he pointed it out. The sling bag contained eight bundles of heroin wrapped in black tape.

13.17 The two accused faced charges of trafficking in diamorphine under s 5(1)(a) of the MDA read with s 34 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”). The first charge related to the drugs in the slingbag, and the second charge related to drugs in the sachets. The Prosecution’s case against the first accused for the first charge was that he had physical possession of the seven bundles for the purpose of trafficking. On the second charge, the Prosecution alleged that the first accused had entered into an agreement with Ridzuan to sell heroin and they had a common intention to traffic the heroin that was the subject of the second charge. For the first charge against the second accused, the Prosecution argued that he was in joint possession of the seven bundles with the first accused. For the second charge, the Prosecution alleged that the second accused had agreed with the first accused to sell the heroin in the 21 plastic sachets and one of the eight bundles and was in possession of the heroin for this.

13.18 In its decision, the High Court focused on determining whether the two accused were able to rebut the presumption activated by s 18 of the MDA that they knew the nature of the drugs. The court decided that the second accused, Ridzuan, did have actual knowledge that the drugs concerned were heroin. The court also found that even if this was not so, s 18(2) of the MDA would apply, and that Ridzuan had failed to rebut the presumption that he knew the nature of the drugs (at [48]):

The circumstantial evidence and Ridzuan’s own admissions at trial as to his state of mind gave rise to the ineluctable inference that even if Ridzuan did not know as a matter of fact that the additional bundles contained heroin, he turned a blind eye or simply did not care what type of drugs the additional bundles contained. Ridzuan testified that Gemuk told him that he could take one of the bundles that was meant for him, without specifying which of the unmarked bundles contained the half ‘ball’ of heroin that Ridzuan had purchased. It followed therefore that the other bundles also contained heroin. Ridzuan claimed that he did not receive any benefit from doing this favour for Gemuk. If Ridzuan had truly been adamant that he was only willing to accept a limited amount of heroin as he did not want to risk his life, he could easily have clarified with Gemuk whether the extra bundles also


contained heroin or refused to hold more than a specified number of bundles on Gemuk’s behalf. He did neither. By failing to do so despite his awareness that Gemuk was involved in the supply of heroin and that the jockey was delivering heroin to him on the very same occasion, I found that Ridzuan’s conduct amounted to wilful blindness that went beyond mere carelessness or negligence. There was nothing in either Ridzuan’s testimony or the objective evidence to persuade me as to the truth of Ridzuan’s assertion that he did not know that the additional bundles contained heroin. I was therefore satisfied that the s 18(2) presumption was not rebutted.

13.19 In the paragraph reproduced above, the High Court distinguished its finding of “wilful blindness” from that of “mere carelessness or negligence”. It did not expressly distinguish “wilful blindness” from recklessness. Due to this, the court may give the impression that it was equating “wilful blindness” with “recklessness”. However, the court’s other observations portrayed Ridzuan as being more than just reckless. The court observed that Ridzuan “did not care” or had “turned a blind eye”. It noted that if Ridzuan truly had not wanted to “risk his life”, he would have clarified whether the extra bundles given to him contained heroin or he would have refused to hold more bundles than that originally agreed. There had been an opportunity for Ridzuan to check the nature of the drugs but he had purposely not done so. The court did not expressly state that Ridzuan had not taken this opportunity to check the nature of the drugs because he had wanted to avoid confirming the nature of the drugs. Despite Ridzuan’s claims that he had not known the nature of the drugs, the court decided that he had failed to rebut the presumption of knowledge and had in fact been wilfully blind, which would allow an inference of knowledge.

Defences

Private defence

13.20 The facts in Public Prosecutor v Zhou Xinming [2013] SGDC 304, were as follows. On 25 December 2011, the accused and the victim had been involved in a traffic accident along Jurong East Central. This led to a confrontation after which both of them drove off. However, the victim followed the accused until he stopped at the Jurong Regional Library. The accused stepped out of his car to change his shoes. Another confrontation ensued, during which the accused made physical contact with the victim and the victim fell, suffering a fracture. The accused then returned to his car and left. At trial, the accused represented himself and put forward two claims: first, he had only “pushed” the victim and therefore the victim’s fracture must have been self-inflicted; second, he had pushed the victim because he feared for his safety and was protecting himself and his family. In assessing the accused’s second


claim, the District Court took it that he was raising the right of private defence as set out in s 96 of the Penal Code.

13.21 The court noted that it had entertained some concerns as to whether the right of private defence could apply as the accused was charged for a rash act causing grievous hurt rather than a voluntary act. It accepted the Prosecution’s submissions that this right could apply to such a charge as s 96 of the Penal Code was “all-encompassing”:

Nothing done in private defence is an offence

96. Nothing is an offence which is done in the exercise of the right of private defence [emphasis added by the District Court].

Accordingly, the court considered the Penal Code provisions applicable to the right of private defence. It remarked (at [27]) that according to s 102, which governed the commencement and continuance of the right of private defence of the body, the accused must show that when committing the alleged crime he was “under reasonable apprehension of danger”. The court highlighted (at [28]) that the accused had to show he had pushed the victim in private defence, rather than “out of anger or annoyance”. To determine whether this had been met based on the facts of the case, the court considered whether the accused had truly apprehended danger to himself and/or his family members as a result of earlier events prior to his stopping at the library and whether the victim had made a dash at the accused at the library.

13.22 Upon examining the facts of the case, the judge found that if the accused had been “truly fearful” of the victim, he would have driven away or sought assistance from the police or passers-by. By engaging the victim directly, his conduct had showed quite the opposite. Also, the accused had allowed his daughter to exit the car and enter the library to return her books. This showed that he did not fear for his life or that of his family. The accused had not called for police assistance at the time of the incident. He did not mention experiencing any fear in later police statements and reports prior to his cautioned statement. In other words, the court found that the accused’s conduct did not demonstrate that he genuinely apprehended any danger to himself or his family. There was no need for the court to assess whether any apprehension experienced was reasonable, as required by s 96, as such apprehension did not exist.

13.23 This case is interesting because of observations made by the court regarding the accused’s lack of fear. When examining statements made by the accused to the police, the court observed (at [43]) that though the accused had asserted in his cautioned statement that he felt the victim “posed a threat” to himself and his family, he had not stated that he was “fearful” of the victim. The court’s emphasis on the absence of any fear on the part of the accused was relevant to its determination


of whether the accused genuinely experienced any apprehension in this case. It should not be interpreted to require an individual to be fearful before he or she has the right of private defence. For example, an individual may be trained in martial arts and particularly brave. When this individual sees someone charging at him unexpectedly, he may reasonably perceive a threat to his body but yet be without fear due to his training and character.

Section 376B and s 377D: Unavailability of defence of reasonable mistake as to age

13.24 In Public Prosecutor v Buergin Juerg [2013] SGDC 143, the accused was convicted of two charges under s 376B(1) of the Penal Code for purchasing sexual services from Chantelle, a person who was under 18 years of age on the material dates. Before the District Court, the accused argued that s 376B(1) should not result in absolute liability. Rather, the Prosecution should be required to prove that the accused knew Chantelle was below 18.

13.25 The District Court recognised that though there is a presumption that mens rea should be an element of a statutory offence, this presumption may be overturned by a statute’s wording and subject matter. The court proceeded to apply a purposive approach (at [17]) to interpreting s 376B(1), asking if:

… the purpose of this section is best achieved by making it an absolute offence, ie, without making it an essential ingredient of the offence that the person guilty of such an offence must possess the necessary knowledge that the person offering commercial sex was below 18.

It further noted (at [19]–[20]) that the absence of words “knowingly” or “dishonestly” did not necessarily displace the presumption of mens rea, but that this was a “good starting point” showing Parliament’s intention of displacing the presumption.

13.26 Next, the court examined discussions that took place in Parliament when s 376B(1) was introduced. It concluded (at [25]) that these discussions “clearly signalled” that Parliament’s intention in adopting s 376B(1) was to provide greater protection to minors and prevent their sexual exploitation. However, the court admitted that parliamentary discussions did not expressly recognise that greater protection would be facilitated by making s 376B(1) an offence of absolute liability.

13.27 The court nevertheless inferred Parliament’s intention to impose absolute liability based on two reasons. First, the court noted (at [26]) that the Senior Minister of State had referred to Singapore


“joining the ranks” of the UK and Australia in criminalising sexual activities with minors. Based on this, the court surmised that Singapore’s parliamentary draftsman must have considered UK and Australian legislation when drafting Singapore’s own legislative provisions. The court noted that the draftsman had chosen not to adopt the wording and approach of the UK and Australian laws. Compared with the relevant UK and Australian provisions, the court found that s 376B(1) imposed “a higher standard of care” on individuals.

13.28 The court then observed (at [36]–[37]) that “the only defence available” to s 376B(1) is provided under s 377D:

Section 377D provides:

(1) Subject to subsections (2) and (3) and notwithstanding anything in section 79, a reasonable mistake as to the age of a person shall not be a defence to any charge of an offence under section 376A(2), 376B or 376C.

(2) In the case of a person who at the time of the alleged offence was under 21 years of age, the presence of a reasonable mistaken belief that the minor, who is of the opposite sex, was of or above –

(a) the age of 16 years, shall be a valid defence to a charge of an offence under section 376A(2); or

(b) the age of 18 years, shall be a valid defence to a charge of an offence under section 376B or 376C

13.29 The District Court (at [39]) also dealt with defence counsel’s argument that knowledge or mens rea should be considered an ingredient of the offence under s 376B. Defence counsel argued (at [40]) that if the offence under s 376B was truly one of absolute liability, there would be no need for s 377D. This argument was rejected by the court. Based on the court’s reading, the existence of s 377D showed that the offence under s 376B(1) was intended to be one of absolute liability.

13.30 In finding that the offence under s 376B was one of absolute liability, the District Court explained (at [42]) that it was not “absurd” to remove the requirement of mens rea “as there is no compulsion on anyone to have to proceed with the sexual act. If in doubt, the person can always walk away”. It also observed (at [43]) that due to the nature of the illicit sex trade, it is “most unlikely” that any age representation of the minor can be accepted at face value. Because of its finding that s 376B(1) is an absolute liability offence, the court (at [45]) did not find it necessary to discuss the question of whether the accused had mens rea, was “wilfully blind” or was “a victim of deception”.

13.31 The accused then made an appeal to the High Court, which confirmed his conviction in Buergin Juerg v Public Prosecutor [2013] 4 SLR 87. There, the High Court judge found that the existence of


s 377D(1) left no doubt that the appellant, who was 39 years old during the offences, could not argue that he did not know Chantelle was under-aged as a defence. The High Court dismissed the defence counsel’s argument that the appellant had been a “victim” of deception practised by Chantelle and the pimp who had orchestrated the encounter between Chantelle and the accused, explaining that criminal law did not recognise a defence based on the accused’s being a victim of some other offence. The court observed that the appellant was in reality arguing that he had not known that Chantelle was under-aged, an argument that was precluded by s 377D(1).

13.32 This case demonstrates how removing the defence of reasonable mistake may be asking too much of individuals. In its decision, the High Court noted that based on the lower court’s findings, the appellant had asked Chantelle for her identification card, upon which she had shown him her elder sister’s identification card. The High Court also observed that the lower court had found that the appellant had not known that Chantelle was under-aged. It is recalled that according to the District Court, the aim of the relevant legislative provisions is to require a higher standard of care from individuals. If so, what else could the accused have done to ensure that he did not fall foul of s 376B(1)? It is submitted that requiring individuals to observe a higher standard of care could be achieved by imposing a mens rea of negligence as to age, or by placing the burden of production on the accused, rather than completely removing the defence of reasonable mistake regarding age. By doing so, an individual is held liable regardless of the amount of care he has exercised.

13.33 In addition, the offence of commercial sex with a minor is one that carries with it significant moral disapproval and stigma, as reflected by the numerous speeches condemning this activity in Parliament during the passage of the relevant legislative provisions. The District Court observed that the accused could have simply walked away. This is true, but as of now, Singapore does not criminalise commercial sex per se. It may be viewed by many as immoral, but remains permissible by law. By checking Chantelle’s age and asking for her identification card, the appellant arguably did all that he could to ensure that he was not engaging in illegal activity. What can the State demand from its citizens and those subject to its law? (See also Chan Wing Cheong, “No Punishment without Fault: Kindling a Moral Discourse in Singapore Criminal Law” (2013) 25 SAcLJ 38.)

13.34 The District Court, in determining Parliament’s intent, emphasised what the parliamentary draftsman must have taken into account and rejected when drafting the provision concerned. Specifically, it was observed that the draftsman had consciously chosen not to adopt the wording or provisions of comparable UK or Australian legislation. It


is suggested that this intention of the parliamentary draftsman cannot be automatically equated with the intention of Parliament. Also, if Parliament’s objective was to require a higher standard of care from those paying for commercial sex, this would not be achieved by making the offence under s 376B(1) one of absolute liability. In doing so, individuals will be held liable regardless of the care they exercised.

Statutory interpretation

13.35 In Public Prosecutor v Adnan bin Kadir [2013] 3 SLR 1052, the Court of Appeal considered how the word “import” in s 7 of the MDA should be interpreted. The High Court had decided that “import” should be interpreted to require the Prosecution to prove that the accused had brought the said drugs into Singapore for the purpose of trafficking. The Prosecution had then referred this question of public interest to the Court of Appeal in accordance with s 397(2) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

13.36 The Court of Appeal held that the starting point for interpreting the word “import” should be s 2(1) of the Interpretation Act (Cap 2, 2002 Rev Ed) (“IA”) (at [5]) which reads:

Interpretation of certain words and expressions

2.–(1) In this Act, and in every written law enacted before or after 28th December 1965, the following words and expressions shall … have the meanings respectively assigned to them unless there is something in the subject or context inconsistent with such construction or unless it is therein otherwise expressly provided:

…

‘import’, with its grammatical variations and cognate expressions, means to bring or cause to be brought into Singapore by land, sea or air; …

13.37 It was highlighted that according to s 2(1), the definitions set out in the IA “shall” apply “unless there is something in the subject or context inconsistent with such construction” or “unless it is therein otherwise expressly provided”. As the MDA did not expressly provide for a definition of “import”, the question was whether the meaning assigned by the IA was inconsistent with the MDA’s “subject or context”: at [7].

13.38 The court referred to the definition of “context” set out in Francis Bennion, Bennion on Statutory Interpretation (LexisNexis, 5th Ed, 2008) (at [8]):

For the purpose of applying the informed interpretation rule, the context of an enactment comprises, in addition to the other provisions of the Act containing it, the legislative history of that Act, the


provisions of other Acts in pari materia, and all facts constituting or concerning the subject-matter of the Act.

13.39 Regarding the MDA’s subject, the court stated (at [8]) that “the MDA is a law enacted by Parliament as a demonstration of Singapore’s determination (and in fulfilment of her international obligations) to suppress the illicit importation into and exportation from Singapore of controlled drugs and the illicit trafficking of the same”.

13.40 In deciding whether the “context” or “subject” of the MDA required a different meaning to be given to “import”, the court considered the following factors: first, the predecessor of the MDA, the Dangerous Drugs Act (Cap 151, 1970 Rev Ed) (“DDA”) had a definition of “import” which was not adopted by Parliament when the DDA was repealed and replaced by the MDA (at [10]); second, in s 5(2) of the MDA which establishes the offence of trafficking, it is expressly stated that the offence of trafficking is made out if the person has the drug in his position “for the purpose of trafficking” (at [11]); Parliament had clearly stated the definition in a number of other statutes where the word “import” has been used: at [12]. The court explained (at [12]) that this practice of Parliament showed that when a specific definition for “import” was intended, it would be expressly stated in the statute, and the question was whether the MDA was a departure from this practice.

13.41 The Court of Appeal noted (at [15]) that the 1961 Single Convention on Narcotics Drugs, to which Singapore is a Party State, may not require Party States to criminalise the cross-border movement of drugs, but it also expressly allows states to adopt stricter laws. It then observed (at [16]) that Singapore case law has consistently applied the IA’s definition of “import” to s 7 of the MDA. Though these cases were transit cases, the court did not find a good reason to distinguish between cases where the drugs were brought into Singapore for the purpose of transit and cases where the drugs were brought into Singapore for the purpose of personal consumption: at [22].

13.42 However, the court also noted (at [23]) that it was not bound by its previous decisions and could reconsider the issue. It considered cases concerning the offence of importation where the defence of personal consumption had been alluded to or expressly raised. Based on its reading of these cases, which differed from that of the High Court, personal consumption cannot be a defence to importation: at [27]. It then considered cases of drug trafficking under s 5 of the MDA, where it was decided that this offence required that the drugs concerned were possessed for the purpose of trafficking. It noted (at [34]) that the courts concerned had decided so based on three considerations: first, in s 2 of the MDA’s definition of “traffic”, the word “transport” is placed between verbs that “imply a transfer of possession between parties”;


second, the verbs used in s 2 to define traffic, in their ordinary and natural meaning, involve dealings between two parties; and third, the offence of trafficking aims to deal with the mischief of supplying and distributing drugs to others.

13.43 In contrast, the court observed that the application of these three considerations to the word “import” gives rise to different conclusions. It is not surrounded by other verbs that give rise to such an interpretation (at [35]); it has a plain and ordinary meaning that is different (at [35]); and if it indeed had such an element of transfer, the offence of importation would always amount to an offence of drug trafficking and there would be no need for a separate offence of importation: at [36].

13.44 The Court of Appeal then considered a number of cases which gave a more restrictive interpretation of “import” in other statutes. It observed that such a narrower interpretation of “import” had been given for the following reasons: when the word had been expressly defined in the statute itself, courts would be slow to read other elements into such a definition; other words in the statute may show that Parliament had intended a different interpretation; when there are no words that suggest a more restrictive interpretation was intended, courts would be slow to depart from its plain meaning: at [44].

13.45 The judges then assessed parliamentary speeches to examine if Parliament had intended a different definition of “import”. They concluded (at [50]) that though these speeches show that the MDA’s deterrent sentences aimed to combat drug trafficking, they do not “necessarily” demonstrate that Parliament intended s 7 of the MDA to apply to those who import drugs for the purpose of trafficking. The court also observed (at [51]) that though Parliament had drawn a distinction between drug traffickers and addicts, this distinction does not “necessarily” require that s 7 of the MDA applies only to those importing drugs for the purpose of trafficking. This distinction could be preserved through the imposition of lenient sentences.

13.46 Next, the court considered (at [53]) the MDA’s scheme of punishments, where importation offences generally attract a greater penalty than drug trafficking offences. Based on this, the High Court had held (at [53]) that the offence of importation should involve a purpose for trafficking as importation is only more dangerous than trafficking when it makes more drugs available for trafficking by increasing the supply of drugs available for such purpose in Singapore. The Court of Appeal, however, observed that this same concern that the stock of drugs available in Singapore is increased applies even when someone imports drugs into Singapore for their own consumption. It therefore held (at [54]) that there is a rational basis for imposing a


higher punishment on those who import drugs into Singapore, even when this is for their own personal consumption, than on those who obtain drugs in Singapore for their own consumption, as the former adds to the supply of drugs in Singapore.

13.47 The Court of Appeal agreed with the Prosecution’s suggestion that drug trafficking should not be assumed to be more dangerous than drug importation as drugs may be cheaper and more available overseas. Enforcement efforts aimed at addicts may be undermined by the import of cheaper drugs from overseas: at [55]. In addition, the court also observed (at [56]) that it was “possible” that harsher penalties for the offence of importation had been intended by Parliament, regardless of the purpose of such importation:

… as the prospect of fresh drugs infiltrating Singapore’s borders to be such a great menace that it justifies the blanket imposition of tough penalties to deter drug importation.

13.48 Among others, the accused argued (at [58]) that Parliament could not have intended the imposition of a minimum sentence on those who bring trace amounts of drugs into Singapore for their own consumption. The court considered the three cases from Hong Kong, the US and the UK which were referred to by the accused in support of this. The accused argued that in these cases, the courts had adopted broader interpretations of drug-related offences, but this had been influenced by the absence of a mandatory minimum sentence.

13.49 The Court of Appeal agreed (at [62]) that the presence of a minimum sentence is relevant in statutory construction “where the provision could reasonably be read in two or more different ways”. However, in this case, the court observed that the word was “plain and unambiguous” but also assigned a meaning by the IA. Thus, it is “more difficult” for the court to conclude that Parliament did not intend the plain meaning: at [62]. There would need to be “very compelling” evidence that Parliament intended otherwise. The presence of a mandatory minimum sentence may appear “harsh” but was not so “inexplicable or unreasonable” as to “compel” the conclusion that Parliament intended to define “import” as applying to only those who imported drugs for the purpose of trafficking: at [63]. It further noted (at [63]) that the question of a mandatory minimum sentence had been considered by Parliament.

13.50 The accused had also argued (at [65]) for the application of a strict construction rule that would require any ambiguity to be resolved in favour of accused persons, especially since the offence carried with it a harsh sentence. The court disagreed with this (at [67]), confirming that this rule only applies when all other interpretive rules have failed. It


held that in this case, there was no room for the strict construction rule to apply.

13.51 Lastly, the Court of Appeal rejected the argument of the accused that a possible defence to s 7 of the MDA was proof by the accused that the drugs were imported for a purpose other than trafficking: at [68]. It held (at [69]) that to do so would amount to “judicial legislation”.

13.52 This approach taken by the Court of Appeal in its interpretation of the MDA emphasises fidelity to legislative text and the court’s reluctance to be perceived as engaging in “judicial legislation”.

Specific offences

Corruption: Inducement or reward

13.53 Singapore courts dealt with a number of corruption cases in 2013. For ease of reference, the relevant provisions of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“PCA”) are set out:

Punishment for corrupt transactions with agents

6. If –

(a) any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, 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;

…

he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both.

Presumption of corruption in certain cases

8. Where in any proceedings against a person for an offence under section 5 or 6, it is proved that any gratification has been paid or given to or received by a person in the employment of the Government or any department thereof or of a public body by or from a person or agent of a person who has or seeks to have any dealing with the Government or any department thereof or any public body, that gratification shall be deemed to have been paid or given and received corruptly as an inducement or reward as hereinbefore mentioned unless the contrary is proved.


13.54 Singapore courts have developed a framework to determine whether corruption has taken place under s 6 of the PCA. According to this framework, four elements must be established:

(a) acceptance of gratification;

(b) as an inducement or reward;

(c) there was a corrupt element in the transaction; and

(d) the accused accepted the gratification with a guilty knowledge.

13.55 In Teo Chu Ha v Public Prosecutor [2013] 4 SLR 869(“Teo Chu Ha”), the accused had been convicted by the lower court of 12 counts of corruption under s 6(a) of the PCA. He had been accused of corruptly accepting gratification between 2004 and 2010 to help Bitforst Singapore Pte Ltd (“Bitforst”) secure trucking contracts from his employer, Seagate Technology International (“Seagate”). The first charge of corruption related to the accused’s receipt of 20,000 of Bitforst shares. The second to 12 charges related to 11 payments received by the accused at different times. The District Court in Public Prosecutor v Teo Chu Ha @ Henry Teo [2013] SGDC 61 found the accused guilty of all 12 charges. The accused appealed to the High Court and was acquitted.

13.56 The main issue on appeal was held (at [8]) to be “the reason for the issue of shares and the 11 payments made”. The High Court judge further held (at [8]) that in order to qualify as corruption, the gratification must be given as “a reward or as an inducement for the act done by the appellant in relation to his principal, Seagate”. Specifically, there must be “a direct causal link between the alleged gratification and the alleged acts looked at from both the receiver’s and giver’s perspectives”.

13.57 With respect to the share transfer in the first charge, the High Court noted that these shares had been transferred for value. The judge held (at [9]) that the Prosecution must prove beyond a reasonable doubt that the payment was in reality a “reward or inducement” rather than a “sham or cover up”. The High Court held that though the Seagate contracts may have been “within the contemplation of the controlling minds of Bitforst”, there was “only a weak correlation” between the share transaction and the Seagate contracts, noting that the Prosecution had provided no evidence about what the shares were actually worth. Though this share acquisition may be a breach of the accused’s fiduciary duties or employment agreement, this did not turn an “ordinary share transaction” into a “sham one”: at [10].

13.58 In relation to the 11 other payments received by the accused, which formed the basis of the other charges, the High Court noted


(at [11]) that these payments corresponded to the accused’s share ownership in Bitforst, and though the method of payment seemed suspicious, these payments did not correspond with the tender dates of the Seagate contracts which the Prosecution alleged the accused had procured in exchange for the payment. As there was no “correspondence of time”, the High Court held (at [15]) that the Prosecution must demonstrate why these payments were given as a reward to the accused for his securing of the Seagate contracts. Because of this, though there may have been a conflict of interest, corruption was not made out: at [18].

13.59 In finding the accused not guilty of corruption, the High Court judge focused on the question of whether the transaction concerned was an “inducement” or “reward”. The court highlighted the fact that when consideration is given for a benefit, this undermines the allegation that the benefit was in fact an “inducement” or “reward”. The Prosecution had to prove why the consideration given was a “sham”.

13.60 In Teo Chu Ha, the High Court also underscored the need for the Prosecution to demonstrate a “correlation” between the allegedly corrupt transactions and the dates of the Seagate contract tenders. This statement should be understood against the facts of this case, in particular the consideration given by the accused for the shares. It should not be interpreted as imposing the requirement that a benefit always has to be linked to a specific favour before it is deemed to be an “inducement” under the PCA. This would be in line with the High Court’s earlier decision of Pandiyan Thanaraju Rogers v Public Prosecutor [2001] 2 SLR(R) 217, where it was held (at [38]) that an inducement or reward under the PCA does not need to be made for a “specific corrupt act or favour” as long as it was given to “purchase the receiver’s goodwill” and “as a form of retainer for future unspecific services as and when required”.

Corruption: Corrupt element

13.61 The accused in Public Prosecutor v Leng Kah Poh [2013] SGDC 123 was convicted of 80 charges of corruptly accepting gratification under s 6(a) of the PCA. While employed in a managerial position with IKEA, the accused was alleged to have received payments in exchange for his favouring of AT35, a company that supplied food to IKEA. The District Court convicted the accused. The accused appealed to the High Court and was acquitted.

13.62 On appeal (see Leng Kah Poh v Public Prosecutor [2013] 4 SLR 878 (“Leng Kah Poh”)), the issue was whether there was a corrupt element to the transaction and whether the accused had “corrupt intent or guilty knowledge”: at [6]. To decide on the existence of a corrupt element to


the transaction, the High Court followed the test set out in Chan Wing Seng v Public Prosecutor [1997] 1 SLR(R) 721. This required the court to examine whether the accused “intended to do an act which was objectively corrupt”, and whether “such intention tainted the transaction with a corrupt element, objectively ascertained”: at [7].

13.63 The High Court observed (at [8]) that:

The assumption is that there must be at least three parties for a transaction to be corrupt: there is the principal whose loss is at issue, the agent whose corrupt intention is at issue, and then there is the person or entity inducing the agent to act dishonestly or unfaithfully.

If the accused was the “master mind” or “co-conspirator”, he cannot be said to have been “induced” by someone else to carry out the corrupt acts: at [10]. Upon examining the underlying arrangement in this case, the court found (at [13]) that the accused had, “at the very least”, entered into a “conspiracy” with the person that the Prosecutor had depicted as inducing the accused to act corruptly.

13.64 The Prosecution was held to have not proven, beyond reasonable doubt, that there were “three separate parties”, and that the accused “was being induced, as IKEA Singapore’s agent, to act in a particular way in relation to his principal’s affairs” (at [13]). The court observed (at [15]) that this did not mean that the accused’s actions were completely above board, noting IKEA was not precluded from starting a civil action against the accused for fraud or breach of his fiduciary duties.

Corruption: Corrupt intent

13.65 A number of corruption cases heard in 2013 put much emphasis on the nature of the relationship existing between the giver and the recipient in determining whether corruption had taken place. An overview of each of these decisions will be given before a brief comparative analysis of their findings is undertaken. In Public Prosecutor v Tan Boon Yeong [2013] SGDC 124 (“Tan Boon Yeong”), the accused, who had been employed as a Market Development Manager by Aviva, was charged with corruptly receiving a Rolex watch from one Edward Wong as a reward for facilitating the movement of his team of agents to a new firm. The accused was charged under s 6(a) of the PCA, and the trial focused on whether the watch was a bona fide birthday gift from Wong to the accused: at [19].

13.66 Upon considering the facts of the case, the court found (at [83]) that the accused had known that the watch was given to him as not just a birthday gift. Rather, the watch was a reward for his facilitating the


transfer of Wong’s agents and clients over to the new firm. The watch was therefore not a bona fide gift.

13.67 The court also found that the transaction had a corrupt element, noting (at [86]) that it is “not uncommon for bribes to be given under the guise of a bona fide gift or loan” and there does not need to be an express request for a bribe or an express reference to a favour. To determine the nature of the transaction, it should be viewed in a “broad and pragmatic perspective”: at [86]. The court cited the following in finding that there was an objective corrupt element in the transaction: the relationship of the accused and Wong was not close; the watch given was very expensive; the accused had placed himself in a conflict of interest; and the accused had broken Aviva’s human resources rules.

13.68 In addition, the accused was found to have had the subjective guilty knowledge that the transaction was corrupt by the ordinary and objective standard. The court noted (at [115]) his initial refusal of the watch and his attempt to hide the watch from the investigators. It did not matter whether Wong had given the watch to the accused without a corrupt intent or whether the accused had not known of the actual intent of Wong behind the gift: at [134]. What mattered was that the accused had accepted the gift with such guilty knowledge.

13.69 In Public Prosecutor v Ng Boon Gay [2013] SGDC 132 (“Ng Boon Gay”), the accused faced four charges of corruptly obtaining sexual gratification from Cecilia Sue Siew Nang (“Sue”) in exchange for his showing favour to her employers in relation to his principal’s affairs. The accused then served as Director-Designate and Director of the CNB.

13.70 The accused argued that sex between consenting adults in an intimate relationship cannot amount to a “gratification” as stated in the PCA. The District Court rejected this argument (at [15]), explaining that the nature of the relationship would be only relevant to determining the accused’s intent behind the gratification and whether there was “corrupt intent/and guilty knowledge”: at [16].

13.71 Due to the position held by the accused in CNB and Sue’s role as a sales representative in which she sold IT products to, among others, the CNB, the court found (at [18]–[19]) that s 8 of the PCA applied along with its presumptions. It held (at [21]) that the accused would therefore have to rebut the following:

(a) that he had reason to believe or suspect that the gratification was an inducement to show favour in relation to his principal’s affairs namely by assisting to further the business interest of Sue’s respective employers, as a vendor of IT products with CNB;


(b) that there was a corrupt element in the transactions;

(c) that he obtained the instances of fellatio with the guilty knowledge that what he did was corrupt.

13.72 The court found that there was a genuine intimate relationship between the accused and Sue. This relationship predated the benefits allegedly obtained by Sue’s employers, and was crucial to the court’s determination of whether the accused had rebutted the three presumptions stated above. First, the court decided (at [104]) that the sexual acts were given in the context of the accused and Sue’s intimate relationship, rather than as inducement or with any ulterior motive.

13.73 Second, in determining if there was a corrupt element in the transactions concerned, the court found (at [117]) that the existing intimate relationship between the accused and Sue “negated” the existence of any such element.

13.74 Third, the court (at [130]) examined whether the accused had the guilty knowledge that what he was doing was corrupt. It examined the transactions concerned, and found that the accused acted in conflict in at least one stage of the contracts approval stage. However, the court held (at [131]) that not every conflict of interest would result in an inference of corruption.

13.75 In the high-profile case of Public Prosecutor v Tey Tsun Hang [2013] SGDC 165 (“Tey Tsun Hang”), the accused faced six charges under s 6(a) of the PCA for receiving gifts and sexual intercourse from his former student, Darinne Ko, as bribes. The main issue at trial was the accused’s alleged “corrupt intent”: at [302].

13.76 The court found that s 8 of the PCA, and its presumptions applied in this case, as the accused’s employer, the National University of Singapore (“NUS”), fell within the PCA’s definition of “public body” as set out in s 2 of the PCA:

‘public body’ means 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 of public utility or otherwise to administer money levied or raised by rates or charges in pursuance of any written law ….

13.77 NUS performed the public service of providing public tertiary education, and this amounted to a “public utility” as interpreted purposively. NUS therefore fell within the scope of s 8: at [524]. The court also accepted (at [525]) the Prosecution’s additional argument that NUS should be deemed a public body as it received substantial


funding from the Government and administered public moneys or “money levied or raised by rates or charges”.

13.78 Given the application of s 8 of the PCA, the court held (at [529]) that the accused needed to rebut the following presumptions on the balance of probabilities:

(a) that he had reason to believe or suspect that the gratification was an inducement to show favour in relation to his principal’s affairs;

(b) that there was an objectively-corrupt element in these transactions; and

(c) that he obtained these gratifications with the guilty knowledge that what he did was corrupt.

13.79 The accused failed to rebut these presumptions at trial. The issue at stake during trial was the accused’s mens rea, specifically, whether he had a corrupt intention. The court considered a list of factors in finding that the accused had a corrupt intention. Many of these factors went to the nature of the relationship between the accused and Ko, specifically, the accused’s abuse of his position and power over Ko: at [537]. For example, the court highlighted his initiation of the illicit relationship (at [538]); his hinting to Ko that he needed a fountain pen and iPod (at [542] and [552]); his directing of Ko to pay for his two tailored shirts and a group dinner at Garibaldi (at [549] and [550]); and his initiation of sexual acts: at [556].

13.80 Having decided that the accused had a corrupt intention, the court went on to examine whether there was a corrupt element in the transaction according to an ordinary and objective standard: at [569]. The court rejected the accused’s claim that he was engaged in a romantic relationship with his student, finding instead that it was “an illicit romantic relationship that was laced with ulterior motives and corrupt intention in which the accused intentionally abused his position and took full advantage of a student”: at [570]. The court also held (at [571]) that due to this relationship both the accused and his student knew at the time of the various gratifications that the accused was in a position to show favour to his student. Therefore, any “bystander” would have viewed the accused’s conduct as “dishonest”: at [572].

13.81 The court then considered (at [573]) whether the accused had the “guilty knowledge that what he did was corrupt”. It noted (at [576]) that the accused had knowingly breached the NUS Code of Conduct and other NUS policies. Also, the accused had concealed his corrupt activities; such secrecy was one of the common characteristics of persons with corrupt intent. In addition, the court observed (at [577]) that the acts undertaken by the accused, such as by asking his student to


pay for his shirts and the Garibaldi group dinner, were instances where his acts were “so obviously corrupt by the ordinary and objective standard that he must know his conduct was corrupt”.

13.82 In concluding, the court held that the accused had failed to rebut the presumptions triggered by s 8. The court also found (at [581]) that even if these presumptions had not applied, the evidence presented by the Prosecution against the accused was “overwhelming”.

13.83 The accused, in the case of Public Prosecutor v Peter Benedict Lim Sin Pang [2013] SGDC 192 (“Peter Benedict Lim Sin Pang”), was charged with one count of corruption under s 6(a) of the PCA, for having corruptly obtained gratification in the form of oral sex from Pang Chor Mui (“Angie”).

13.84 The District Court held that s 8 of the PCA and its presumptions applied to the facts of the case. The accused was, during the time of the acts, Commissioner of the Singapore Civil Defence Force (“SCDF”) and employed by the Government. Angie was the general manager of Nimrod that had a subsisting contract with SCDF and had dealings with the Government: at [16]. Though Angie was not a sales representative of Nimrod, the court drew attention to her senior position within Nimrod and how she had marketed Nimrod to the accused. She was found to have had a role to play in the pricing of Nimrod products, and was “not totally disconnected with the sale activities of Nimrod”: at [17]–[19].

13.85 Due to the application of s 8’s presumptions, the court held (at [20]) that the accused would have to “rebut that he had reason to believe or suspect that the gratification was an inducement to show favour by advancing the business interest of Nimrod, which was a vendor of SCDF with SCDF, that there was a corrupt element in the transaction and that he obtained the oral sex with guilty knowledge that what he did was corrupt”. The court also noted that reading s 9 of the PCA with s 8 meant that the s 6(a) charge would be established regardless of whether the accused had the power or even the intention to show favour to Angie or Nimrod in their business dealings with SCDF. The Prosecution did not need to prove that the accused did favour Angie or Nimrod: at [21].

13.86 To decide whether there was an objectively corrupt element in the transaction concerned, the court considered (at [51]) the intention of the accused at the material time. In doing so, the court highlighted facts establishing how the accused took advantage of his position vis-à-vis Angie. It noted (at [52]) that the accused had deliberately planned for the incident to take place. When the accused obtained oral sex from a woman who is an agent of a vendor of SCDF, “he would have known


or be reasonably sure that Ms Angie would not reject him”: at [61]. The court then examined whether the accused obtained the oral sex “having reason to believe or suspect” that it was offered as an inducement: heading to [63]. The court found (at [66]) that when the accused had asked Angie for oral sex, he would have known that Angie would be concerned about Nimrod’s business interests being affected and would rather have it advanced. This being so, the accused was making her “an offer which she could not refuse”: at [66].

13.87 Lastly, the court considered whether the accused obtained this gratification from Angie with the guilty knowledge that what he was doing was corrupt according to an ordinary and objective standard. It observed that the accused had breached rules on conflict of interest. Also, the judge found (at [77]) that “any high ranking civil servant of 25 years[’] worth of public service” should have known that what he had done was “in an obvious conflict of interest situation”.

13.88 In each of the four corruption cases set out above, the court considered the relationship between the parties as a crucial factor in determining whether the four elements of corruption under s 6 of the PCA were met. In Tan Boon Yeong (above, para 13.65) and Ng Boon Gay (above, para 13.69), the courts studied the relationship between the parties to establish whether the transaction was an inducement, as alleged by the Prosecution, or a bona fide gift or intimate act, as argued by the accused in the two cases respectively.

13.89 The judges also considered the parties’ relationship when assessing whether the transaction had an objectively corrupt element. This required judges to consider the accused’s corrupt intent and whether the transaction would be considered corrupt by an objective and ordinary standard. In Ng Boon Gay, the court held that the accused did not have a corrupt intent as this was negated by his genuinely intimate relationship with Sue. In contrast, the accused in Tey Tsun Hang and Peter Benedict Lim Sin Pang were found to have had corrupt intent. In finding such corrupt intent, the courts seemed to place much emphasis on facts that demonstrated how the accused abused their position vis-à-vis the other party. Tey was criticised for abusing his power over Ko, his “impressionable” student: at [569]. Lim was censured for asking Angie for something he knew she could not refuse: at [61].

13.90 How were such abuses of power linked to the accused persons’ corrupt intent? In other words, how did such acts of power abuse show that the accused had a corrupt intent? By themselves, these acts show that the accused had taken advantage of the imbalance of power in their professional relationship with the other parties. However morally corrupt the behaviour of the accused may have been, such acts do not automatically amount to corruption. More must be done to explain how


these facts established corrupt intent. For example, as explained above, Tey and Lim were both found to have initiated the transactions: Peter Benedict Lim Sin Pang at [55]. Why would such acts be relevant to establishing that the accused acted with corrupt intent? The fact that the accused had taken advantage of the other party may undermine the former’s argument that the transaction is an intimate act between two individuals involved in a romantic relationship. In contrast, the existence of a romantic relationship predating the allegedly corrupt transactions may undermine the Prosecution’s case that there had been an “inducement” in the form of sexual acts.

13.91 It is hard to determine what facts are relevant and how they are relevant because there is no clear definition of “corrupt” in the PCA or case law. It is only the term “corruptly” that distinguishes acts criminalised under the PCA from acts that are gifts, genuine tokens of appreciation, or intimate behaviour. In other words, if one removes the phrase “corruptly” from s 6 of the PCA, what one is left with is a description of behaviour that is innocent and ordinary in daily social interactions. Yet, Singapore courts have refrained from setting out a more comprehensive definition of corrupt, noting that “the factual permutations of corruption can be endless”: Chan Wing Seng v Public Prosecutor [1997] 1 SLR(R) 721 at [26].

13.92 Commentators have suggested that “corruptly”, as stated in the PCA, should be understood as targeting acts that “tend to induce a conflict of interest in respect of the discharge of a duty”: Christopher Ong et al, “The Meaning of Corruptly” (1999) 11 SAcLJ 147 at 183. However, as highlighted by the High Court in Leng Kah Poh (above, para 13.62) and Teo Chu Ha (above, para 13.55), the existence of a conflict of interest alone when discharging a duty does not amount to corruption. A focus on conflict of interest and breach of duty does not sufficiently capture the heart of what is blameworthy about corruption.

13.93 In Hassan bin Ahmad v Public Prosecutor [2000] 2 SLR(R) 567, the court identified corruption with the concept of the accused being “bought over”, and when “payments were not made innocently, but to purchase the recipient’s servitude”: at [20]. Interpretive assistance may also be sought from the United Nations Convention against Corruption, which delineates the scope of corruption by defining it as an “undue advantage” given or received in order that the person acts “in breach of his or her duties, act or refrain from acting”. A more comprehensive definition of the phrase “corruptly” in the PCA could be developed based on this. Among others, it should include an understanding by the accused that the inducement offered is an advantage that was “undue” and that was given “in order” that he or she acts in breach of his or her duties, whether the acts demanded are specifically identified or lie in the future.


Intent to defraud

13.94 The High Court held, in Li Weiming v Public Prosecutor [2013] 2 SLR 1227 (“Li Weiming”), that s 477A of the Penal Code requires the Prosecution to establish a particularised intent to defraud. The appellants faced six charges. One charge was brought under s 477A read with s 109 of the Penal Code. The other five charges were brought under s 47(1)(b) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed). The s 477A charge related to an alleged conspiracy between the petitioners to issue an invoice that falsely sought payment to a company, Questzone Offshore Pte Ltd (“Questzone”). The other charges related to five separate payments made by Questzone to the petitioners out of proceeds obtained from the s 477A Penal Code offence.

13.95 The court held (at [34]) that “an essential ingredient” of the s 477A Penal Code offence was that an accused had the “intent to defraud” and that this had to be particularised. It noted the Explanation in s 477A of the Penal Code:

Explanation. – It shall be sufficient in any charge under this section to allege a general intent to defraud without naming any particular person intended to be defrauded, or specifying any particular sum of money intended to be the subject of the fraud or any particular day on which the offence was committed.

This explanation was held to serve the case where deception is directed “indiscriminately” at the general public: at [36].

13.96 In seeking to determine what “intent to defraud” meant, the court noted that s 477A should be interpreted within its specific context. It referred to Indian judgments dealing with the Indian equivalent of s 477A. These judgments highlighted that the phrase “intent to defraud” comprised the two elements of deceit and injury: at [40]. Therefore, the Prosecution had to prove an intent to mislead and an intent to injure the interests of a particular person or that in general: at [41].

13.97 Upon referring to Indian commentaries on the legislative objective of this section, the court noted (at [44]) that s 477A aimed to relieve the Prosecution from having to prove that a particular sum had been misappropriated or a particular occasion on which money had been misappropriated, rather than to excuse the Prosecution from having to name the particular person intended to be defrauded. The Prosecution, therefore, could not “hide behind the explanatory note in s 477A PC” but had to indicate whether the gain was obtained by “a general deception” or “at the expense of a particular person or entity”: at [45].


13.98 By deciding that the “intent” in this crime is one that needs to be “particularised”, the court held that the Prosecution has to clearly indicate whether “a general deception” is intended by the accused or the “particular person or entity” that the accused intends to deceive. Though the primary concern of the court in this case seems to focus on the need for the Prosecution to set out its case clearly, its decision also more clearly demarcated the scope of s 477A. By defining the offence more specifically, its reach is made narrower and more focused. Conversely, defining an offence vaguely sweeps more individuals within its reach.

Computer Misuse Act: Damage requirement of s 3(2)

13.99 The case of Liew Cheong Wee Leslie v Public Prosecutor [2013] 4 SLR 170 (“Liew Cheong Wee”) concerned an appeal to the High Court by an appellant convicted by the lower court on six charges under the Computer Misuse Act (Cap 50A, 1998 Rev Ed). The appellant was an engineer who, during the time of the offence, had been employed by Power Automation Pte Ltd (“PA”) to work on a project for the Marina Bay Sands Integrated Resort. During this time, he worked on a computer system for managing and controlling all digitally controlled equipment in the resort, including the casino. On 12 May 2010, the casino experienced a blackout around 12.20am.

13.100 The relevant provisions of the Computer Misuse Act are as follows:

3.–(1) Subject to subsection (2), any person who knowingly causes a computer to perform any function for the purpose of securing access without authority to any program or data held in any computer shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years or to both and, in the case of a second or subsequent conviction, to a fine not exceeding $10,000 or to imprisonment for a term not exceeding 3 years or to both.

(2) If any damage is caused as a result of an offence under this section, a person convicted of the offence shall be liable to a fine not exceeding $50,000 or to imprisonment for a term not exceeding 7 years or to both.

13.101 The appellant faced five charges under s 3(1) and one charge under s 3(2). At the lower court, he was sentenced to a fine of $3,000 each for the first five charges and two weeks imprisonment along with a $15,000 fine for the sixth charge (at [2]).

13.102 In its decision, the High Court highlighted how the appellant had taken elaborate steps to give himself remote access through his personal computer to gain access to the system. This excluded the


possibility of accidental action, and resulted in the “inescapable conclusion” that the accused had “deliberately intended to cause the blackout”: at [3]. The judge further stated that as “there were no instructions or reasons for doing so”, the “natural inference” must be that the accused had done so “with mischief in mind”.

13.103 However, the judge noted that it was only possible to impose enhanced sentencing under s 3(2) “if any damage is caused”. Section 2 defines “damage” as:

… except for the purposes of section 13, any impairment to a computer or the integrity or availability of data, a program or system, or information, that –

(a) causes loss aggregating at least $10,000 in value, or such other amount as the Minister may, by notification in the Gazette, prescribe except that any loss incurred or accrued more than a year after the date of the offence in question shall not be taken into account;

(b) modifies or impairs, or potentially modifies or impairs, the medical examination, diagnosis, or treatment or care of one or more persons;

(c) causes or threatens physical injury or death to any person; or

(d) threatens public health or public safety.

13.104 The charge in this case did not point out what damage was caused. The Prosecution had not “particularised” the damage in the charge. The High Court also noted that a loss of reputation to the casino referred to by the Prosecution was not defined as damage under s 2. The High Court observed (at [5]) that “the reputation and standing of a private institution” may be the subject of private practice lawyers and the civil court, but are “not matters that are the concern of the public prosecution service and the criminal court generally, and in this offence specifically”.

13.105 On appeal, the Prosecution submitted that this blackout may have been a threat to public safety, and this could fall within s 2’s definition of “damage”. However, the High Court pointed out that this had not been particularised in the charge and no evidence had been provided to support this. The High Court, therefore, amended the s 3(2) charge to one under s 3(1), varying the sentence for this charge to a fine of $3,000 or three weeks’ imprisonment in default to reflect this change.

13.106 In this case, the damage requirement was clearly indicated in the legislative text. In the case of Li Weiming (as discussed above, para 13.94) the court had interpreted the statutory provision concerned as including an intent that needs to be directed at the general public or a particular


person or entity. In both cases, the courts aimed to prevent an overly broad interpretation and implementation of legislative provisions that may facilitate prosecutions that are not adequately justified.

13.107 The judge in Liew Cheong Wee made an interesting observation on how there are some matters that fall within the scope of the civil courts and not that of criminal courts. The concern that criminal law should not be used for civil law matters runs through many recent criminal law decisions. The conduct of the accused may have been reprehensible, and it may expose him to civil action or moral disapprobation, but it may not have all the elements necessary to engage the sanction of criminal law and the coercive powers of the State.

'2013 Annual Review of Criminal Law (Singapore)', Singapore Academy of Law Annual Review, Volume 14,...

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Transcript of '2013 Annual Review of Criminal Law (Singapore)', Singapore Academy of Law Annual Review, Volume 14,...