PP v Ang Seng Thor

• Jurisdiction: Singapore
• Judgment Date: 26 May 2011
• Date: 26 May 2011
• Docket Number: Magistrate's Appeal No 365 of 2010
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Ang Seng Thor

Defendant

[2011] SGHC 134

VK Rajah JA

Magistrate's Appeal No 365 of 2010

High Court

Criminal Procedure and Sentencing—Sentencing—Principles—Benchmark sentences—Whether distinction between sentencing in public and private sector corruption—Whether principle of equal culpability between giver and receiver in corruption offence breached—Whether offender a whistleblower

The respondent was the Chief Executive Officer and, together with one Tok Kian You (‘Tok’) , joint managing director of AEM-Evertech Holdings Ltd (‘AEM’) . He pleaded guilty to two charges of corruptly giving gratification to agents contrary to s 6 (b) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) .

Both charges related to events which occurred in 2003. One of the charges (‘the Seagate Charge’) related to the respondent giving $97,158 in cash to an employee of Seagate Technology International (‘Seagate’) , in exchange for Seagate ordering goods from AEM. The other charge (‘the Infineon Charge’) related to the giving of $50,000 in cash to a director of Infineon Technologies Malaysia Sdn Bhd (‘Infineon’) to secure the sale of four inspection machines by AEM to Infineon.

Subsequently, in 2005, the respondent wrote a letter to the chairman of AEM's board of directors, disclosing a number of unauthorised activities, purchases, payments and irregular accounting practices by various officers of AEM, including Tok. The respondent also made a series of disclosures to ST Microelectronics Group (‘ST Micro’) , a client of AEM, providing ST Micro with information about its staff being bribed by the officers and employees of AEM, including Tok. ST Micro then notified the Corrupt Practices Investigation Bureau (‘CPIB’) , which commenced investigations into these matters, and the respondent cooperated with these investigations.

The respondent was sentenced by the district judge (‘the District Judge’) to pay the maximum fine of $100,000 for each charge. In sentencing the respondent, the District Judge interpreted the case of Lim Teck Chye v PP [2004] 2 SLR (R) 525 (‘Lim Teck Chye’) as drawing a distinction between cases of corruption involving public servants or bodies, in which the benchmark was a custodial sentence, and cases of private sector or commercial corruption, in which the benchmark was a fine unless the corruption had an impact on the public (what was referred to as ‘the public service rationale’) , in which case a custodial sentence was warranted. The District Judge also considered it inappropriate to impose a custodial sentence, notwithstanding the size of the bribes and the respondent's status within AEM, for a number of reasons, including the fact that the respondent's roles in the Seagate Charge and Infineon Charge pointed to a low culpability, that the respondent was a giver of bribes and not a receiver, and that the respondent was a ‘whistleblower’ whose voluntary disclosure of corrupt transactions in AEM had made a vital contribution towards the discovery and punishment of that corruption. The Public Prosecutor appealed against the sentence imposed.

Held, allowing the appeal and varying the sentence:

(1) The public service rationale referred to the public interest in preventing a loss of confidence in Singapore's public administration, and where there was a risk of that harm occurring, a custodial sentence was normally justified. The public service rationale was presumed to apply where the offender was a government servant or an officer of a public body, but it could also apply to private sector offenders where the subject matter of the offence involved a public contract or service, such as private sector offences which concerned regulatory or oversight roles. Although triggering the public service rationale was one way in which a private sector offender could be subject to a custodial sentence, it was not the only way: the custody threshold could be breached in other circumstances, depending on the applicable policy considerations and the gravity of the offence as measured by the mischief or likely consequence of the corruption. In addition, factors such as the size of the bribes, the number of people drawn into the web of corruption and whether such conduct was endemic would all be relevant to the consideration of whether a custodial sentence was justified: at [33].

(2) The main sentencing considerations in corruption cases were deterrence and punishment, and it would not be wrong to say that deterrence was always a relevant sentencing consideration in corruption cases: at [33].

(3) The District Judge had erred in law in drawing a stiff and artificial distinction between public and private sector corruption for the purposes of sentencing. The public service rationale was not an exhaustive or even primary ground for imposing a custodial sentence on a private sector corruption offender. There was no presumption in favour of a non-custodial sentence for private sector corruption cases. The correct approach was to consider whether a custodial sentence was warranted in light of sentencing principles such as the public interest and other policy considerations, as well as the gravity of the offences including the particular facts and circumstances thereof: at [35], [39] and [42].

(4) There was clearly a public interest 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 the efficient operation of the market was not disrupted: at [41].

(5) Where cases of private sector corruption involved managers (especially senior managers) or concerned corrupt influence over large or otherwise important business transactions, that would add greatly to the seriousness of the offence. Other aggravating included the fact that the offences were systematic, or that they occurred over a long period of time: at [42].

(6) The District Judge had erred in law in considering that the respondent, as a giver of bribes, was less culpable than the receivers of the bribes: at [45] to [48].

(7) The District Judge had erred in fact in finding that the respondent's roles in the Seagate Charge and the Infineon Charge pointed to a low level of culpability: at [51] and [52].

(8) The present case was not one of ‘whistleblowing’ as several key features distinguished the respondent from the archetypal whistleblower, and therefore the respondent was not accorded any additional mitigation beyond a recognition of his high degree of cooperation with CPIB after he was placed under investigation, as well as his early plea of guilt: at [58] to [61].

(9) The sentence imposed by the District Judge was to be set aside and substituted with a sentence of six weeks' imprisonment and a fine of $25,000 on each charge, with each sentence of imprisonment to run consecutively: at [2] and [72].

ADF v PP [2010] 1 SLR 874 (refd)

Angliss Singapore Pte Ltd v PP [2006] 4 SLR (R) 653; [2006] 4 SLR 653 (refd)

Chua Kim Leng Timothy v PP [2004] 2 SLR (R) 513; [2004] 2 SLR 513 (refd)

Chua Tiong Tiong v PP [2001] 2 SLR (R) 515; [2001] 3 SLR 425 (refd)

HKSAR v Lau Yee Lai [1999] HKEC 351 (refd)

Kwang Boon Keong Peter v PP [1998] 2 SLR (R) 211; [1998] 2 SLR 592 (refd)

Lim Teck Chye v PP [2004] 2 SLR (R) 525; [2004] 2 SLR 525 (refd)

PP v Chang Kar Yang [2006] SGDC 85 (refd)

PP v Chew Suang Heng [2001] 1 SLR (R) 127; [2001] 1 SLR 692 (refd)

PP v Fong Kit Sum [2008] SGDC 58 (refd)

PP v Loqmanul Hakim bin Buang [2007] 4 SLR (R) 753; [2007] 4 SLR 753 (refd)

PP v Siew Boon Loong [2005] 1 SLR (R) 611; [2005] 1 SLR 611 (refd)

PP v Subramaniam s/o Muneyandi [2003] SGDC 259 (refd)

PP v Tang See Meng [2001] SGDC 161 (refd)

PP v Wang Ziyi Able [2008] 2 SLR (R) 1082; [2008] 2 SLR 1082 (refd)

PP v Yeoh Hock Lam [2001] SGDC 212 (refd)

R v Wong Tat-Sang [1985] HKCA 196 (refd)

R v Gordon Foxley (1995) 16 Cr App R (S) 879 (refd)

Soong Hee Sin v PP [2001] 1 SLR (R) 475; [2001] 2 SLR 253 (refd)

Wong Loke Cheng v PP [2003] 1 SLR (R) 522; [2003] 1 SLR 522 (refd)

Wong Teck Long v PP [2005] 3 SLR (R) 488; [2005] 3 SLR 488 (refd)

Zhao Zhipeng v PP [2008] 4 SLR (R) 879; [2008] 4 SLR 879 (refd)

Companies Act (Cap 50, 2006 Rev Ed) ss 154 (1) , 154 (4) (a) , 154 (4) (b)

Criminal Procedure Code (Cap 68, 1985 Rev Ed) s 18

Immigration Act (Cap 133, 1997 Rev Ed) s 57 (1) (k)

Penal Code (Cap 224, 2008 Rev Ed) s 34

Prevention of Corruption Act (Cap 241, 1993 Rev Ed) ss 6, 6 (b) , 8, 13 (1) , 37 (1)

Bribery Act 2010 (c 23) (UK)

G Kannan, Edmund Lam and Ng Yiwen (Attorney-General's Chambers) for the appellant

Wendell Wong, Tay Eu-Yen and Choo Tse Yun (Drew & Napier LLC) for the respondent.

VK Rajah JA

Introduction

1 This was an appeal by the Public Prosecutor against the sentences imposed by a district judge (‘the District Judge’) on the respondent, Ang Seng Thor (‘Ang’) , in respect of District Arrest Case (‘DAC’) Nos 20434 and 20435 of 2010 (respectively, ‘DAC 20434’ and ‘DAC 20435’) . Ang pleaded guilty to those two charges, both of which concerned offences of corruptly giving gratification to agents contrary to s 6 (b) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (‘PCA’) , which carries a maximum sentence of five years' imprisonment or a fine of $100,000 or both. Two other corruption charges under the same section and two charges of giving false statements under s 57 (1) (k) of the Immigration Act (Cap 133, 1997 Rev Ed) were taken into consideration for the purposes of sentencing. The District Judge sentenced Ang to a fine of $100,000 (the maximum fine) for each charge, in default fivemonths' imprisonment per charge. The total sentence imposed by the District Judge for the two charges was therefore a fine of $200,000, which Ang has paid in...