This feels like an opinion which is begging for a ruling from the Court of Appeal.

The Case#

In PP v Michael Tan and another [2019] SGHC 207, the High Court had the opportunity to consider whether the punishment for bribing foreign government officials should be similar to the punishment for bribing local government officials. The facts are not so material to the question. Simply stated, in one case an owner of a shipping company bribed port officials in Malaysia to get out of trouble or to get its competitors into trouble. The second case is related to the notorious US Navy case — the accused was the recipient of the bribes (passive bribery). Appeals from the accused failed in this court. In the second case, the jail term was even increased.

More interestingly, the Prosecution failed in two jurisprudential questions:

• Whether the “public service rationale” should be extended to foreign public officials
• Whether a new sentencing framework should be proposed for corruption offences.

Of course, the focus of this post is on the first question. The judge decided at [72] that the “public service rationale” should not be extended to foreign public officials because the public interest in the original rationale is distinct from that for foreign public officials. Instead, foreign public officials are a separate and distinct aggravating factor for punishment (at [75].

Impact of this case#

It’s odd that despite being number 3 on the Corruption Perceptions Index, there has not been much caselaw on foreign bribery. The Prevention of Corruption Act does not refer to foreign bribery, except that oddly Singaporeans who bribe overseas are treated as bribing in Singapore.

In Transparency International’s 2018 “Exporting Corruption” Report, which focus on each country’s enforcement of anti-corruption laws with respect to foreign officials, Singapore is labelled “Little or No Enforcement“. Specific recommendations in the report include “Establish laws that clearly prohibit Singaporean persons and entities from engaging in corrupt practices overseas” and “Define “foreign public officials” in the PCA and other applicable laws”.

It ain’t exactly the recommendation, but it goes some way towards it. This case establishes the juridicial basis of bribery of foreign officials as an aggravating factor. The opinion should be praised for referring to Singapore’s obligations under the United Nations Convention Against Corruption. The reasons fairly comprehensively set out why Singapore should do its part to punish foreign bribery.

The Distance ahead#

Based on the reasons which the Prosecution did not succeed (such as a shiny new sentencing guideline), there is ample room for the Court of Appeal to comment on the scope of the law with respect to foreign bribery.

Judicial decisions can’t paper over all legislative cracks. The main provisions of the PCA, which have stayed largely the same over the last 30 years are badly due for review. The latest events in Singapore in this event have all involved cross-boundary and involve startling amounts.

• The FCPA case against Keppel Offshore & Marine involved political parties and foreign officials, and resulted in a staggering $422 million enforcement action.
• The above case was the largest and most extensive bribery and fraud conspiracy in the history of the United States Navy. The accused in the case was Singaporean.
• Singapore is also involved in the 1MDB scandal. Singaporeans and financial institutions have been taken to task over their roles in the scandal.

One other recent development — the recent introduction of deferred prosecution agreements which would allow the government to hold companies accountable for crimes such as Anti-Bribery. As DPAs are extensively used in the US and UK for anti-bribery offences, it is not difficult to see them having the same application here.

Conclusion#

Save for a comprehensive review of the Prevention of Corruption Act, several pieces are in place for a long overdue modernisation of Singapore’s Anti-Bribery Laws. This is timely as more Singapore corporates are involved in cross-boundary business, which increases the risk of bribery. Singapore’s reputation for being a clean country is well-earned; it must adjust to the new circumstances to keep it.