Goh Ngak Eng v PP

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ,Steven Chong JCA,Vincent Hoong J
• Judgment Date: 12 October 2022
• Docket Number: Magistrate's Appeal No 9173 of 2021/01
• Court: High Court (Singapore)

Goh Ngak Eng

and

Public Prosecutor

[2022] SGHC 254

Sundaresh Menon CJ, Steven Chong JCA and Vincent Hoong J

Magistrate's Appeal No 9173 of 2021/01

General Division of the High Court

Criminal Procedure and Sentencing — Sentencing — Appeals — Appellant pleading guilty to 15 charges of abetment by engaging in conspiracy with others to corruptly obtain gratification and four charges of corruptly giving gratification — Prosecution and Defence erroneously proceeding on basis that conspiracy charges only caused potential harm thus leading court below into error on levels of harm caused by conspiracy charges — Whether global sentence of 17 months and three weeks' imprisonment was manifestly excessive — Sections 6(a) and 6(b) Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Benchmark sentences — Appellant pleading guilty to 15 charges of abetment by engaging in conspiracy with others to corruptly obtain gratification and four charges of corruptly giving gratification — Whether sentencing framework should be formulated for private sector corruption offences under ss 6(a) and 6(b) Prevention of Corruption Act — Sections 6(a) and 6(b) Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

Held, dismissing the appeal and enhancing the appellant's sentence in respect of the Conspiracy Charges:

The revised sentencing framework for private sector corruption offences under sections 6(a) and 6(b) of the PCA

(1) The appropriate sentencing framework private sector corruption offences under ss 6(a) and 6(b) the PCA was modelled after the two-stage, five-step framework in Logachev Vladislav v PP[2018] 4 SLR 609 (“Logachev”). This was referred to as the “revised sentencing framework”: at [45] and [47].

(2) The Logachev framework was an appropriate sentencing framework for ss 6(a) and 6(b) offences under the PCA. The first stage of the Logachev framework was apt for encapsulating the diverse circumstances in which private sector corruption offences could occur because it classified the severity of the offending conduct based on its salient features (manifesting themselves as offence-specific factors) rather than by reference to the particular facts of each case. The established body of jurisprudence on offences under ss 6(a) and (b) of the PCA also assisted in identifying the salient features of offending conduct from which the relevant offence-specific factors could be derived, which would provide the court with a sense of how the sentencing spectrum under ss 6(a) and 6(b) of the PCA should be spread across in the sentencing matrix: at [47].

(3) The revised sentencing framework was not to be extended to offences under s 5 of the PCA because both ss 6(a) and 6(b) as well as s 5 of the PCA were directed at different mischiefs and so would engage different considerations in the sentencing exercise: at [50].

(4) The overarching sentencing consideration in a case of public sector corruption was the distinct public interest in eradicating corruption in the ranks of public servants upon whom the administration and functioning of the State were dependent. In a case of private sector corruption, the public interest was in the private sector maintaining a reputation for being corruption free, with business being conducted in a fair and transparent manner so as to ensure that the public's legitimate expectations of bona fides, commercial even-handedness and economic welfare were not prejudiced, and that the efficient operation of the market was not disrupted. Thus, although both public and private sector corruption offences under ss 6(a) and 6(b) of the PCA would share a common pool of offence-specific factors, the context in which these factors came to be assessed in a case of public sector corruption differed quite significantly from that in a case of private sector corruption. The revised sentencing framework was therefore not to be extended to public sector corruption offences under ss 6(a) and 6(b) of the PCA: at [53] to [55].

Step one of the revised sentencing framework

(5) Under step one of the revised sentencing framework, the court would identify, by reference to factors specific to the particular offence under consideration, the level of harm caused by the offence and the level of the offender's culpability: at [45(a)].

(6) The offence-specific factors that were identified by the High Court in PP v Wong Chee Meng[2020] 5 SLR 807 (“Wong Chee Meng”), which had set out a sentencing framework for the aggravated offence of participating in a corrupt transaction with agents under s 6 read with s 7 of the PCA, were to be included at step one of the revised sentencing framework: at [59].

(a) In respect of harm-related offence-specific factors, they were: (i) actual loss caused to principal; (ii) benefit to the giver of gratification; (iii) type and extent of loss to third parties; (iv) public disquiet; (v) offences committed as part of a group or syndicate; (vi) involvement of a transnational element: at [60].

(b) In respect of culpability-related offence-specific factors, they were: (i) amount of gratification given or received; (ii) degree of planning and premeditation; (iii) level of sophistication; (iv) duration of offending; (v) extent of the offender's abuse of position and breach of trust; (vi) offender's motive in committing the offence: at [61].

(7) Further offence-specific factors were to be included at step one of the revised sentencing framework. They were as follows: at [95].

(a) The public service rationale was to be included a harm-related offence-specific factor. Where the public service rationale was engaged in a case of private sector corruption, there would be damage caused to public confidence in the provider of public or essential services, in the same way that damage would be caused to public confidence in the public administration in a case of public sector corruption. This was a distinct injury to society apart from those which typically arose from offending conduct under ss 6(a) and 6(b) of the PCA and should separately count in the measure of harm: at [70].

(b) The presence of public health or public safety risks was to be included as a harm-related offence-specific factor. Where such risks were present, there would be a distinct injury to members of the public who were reliant on the agent's dutiful performance of his duties to mitigate or manage those risks, as they now stood to be impacted by such risks that they otherwise would not have if the offending conduct had not taken place: at [72].

(c) The involvement of a strategic industry was to be included as a harm-related offence-specific factor. Where the offending conduct involved a strategic industry or sector, there would be a distinct injury to society because of the detriment caused to the development of that strategic industry or sector: at [73].

(d) The bribery of a foreign public official was to be included as a harm-related offence-specific factor. The bribery of a foreign public official would give rise to a distinct injury to the public interest because it could undermine Singapore's international reputation for standing resolutely against corruption and also ran contrary to Singapore's international obligations to combat transnational corruption: at [75].

(e) The presence of threats, pressure or coercion was to be included as a culpability-related offence-specific factor. An agent who coupled his demand for gratification with threats, pressure or coercion would be more culpable than one who did not, because not only did he engage in the wrongful conduct of demanding gratification, he also did so with the means to make his demand more effective. However, distinctions in the culpability of a giver could conceivably also be drawn, based on whether he had coupled his giving of gratification with the use of threats, pressure or coercion. This factor therefore extended to offending conduct under both ss 6(a) and 6(b) of the PCA: at [81] and [82].

(f) The role played by the offender in the corrupt transaction was to be included as a culpability-related offence-specific factor. It should be examined holistically whether the offender's role in the corrupt transaction had been active or passive. All other things being equal, a giver of gratification who initiated the corrupt transaction would be more culpable than a giver who succumbed to the solicitation and pressure of the recipient. Similarly, an agent who merely received gratification from the giver when offered would be less culpable than one who had actively sought out gratification from the giver: at [84].

(8) The amount of gratification given or received should go towards the assessment of culpability rather than harm, and so was to be included as a culpability-related offence-specific factor. This was so for two reasons. First, although the amount of gratification given or received could serve as a barometer of the degree of harm caused, such harm would already be sufficiently taken into account by the other harm-related offence-specific factors. Also, any greater subversion of the public interest caused by the greater corrupt influence exerted by a higher amount of bribe would be better accommodated by the other offence-specific factors because exactly what dimension of this public interest is subverted was context-specific. Second, in the case of both ss 6(a) and 6(b) offences under the PCA, all other things being equal, the amount of gratification would typically (but not necessarily) bear a relationship to the blameworthiness of the offender: at [86] to [88].

(9) There was no need to designate particular offence-specific factors under step one of the revised sentencing framework as “seriously aggravating”. First, there was no utility in such a designation, since no presumptive sentencing position was to follow by virtue of any such “seriously aggravating” factors being engaged. A...