PP v Marzuki bin Ahmad

• Jurisdiction: Singapore
• Judgment Date: 27 August 2014
• Date: 27 August 2014
• Docket Number: Magistrate's Appeals Nos 273 of 2013/01 and 273 of 2013/02
• Court: High Court (Singapore)

Public Prosecutor

Plaintiff

and

Marzuki bin Ahmad and another appeal

Defendant

[2014] SGHC 166

Sundaresh Menon CJ

Magistrate's Appeals Nos 273 of 2013/01 and 273 of 2013/02

High Court

Criminal Procedure and Sentencing—Sentencing—Penalties—Basis for quantifying penalty sum under s 13 Prevention of Corruption Act (Cap 241, 1993 Rev Ed) —Accused receiving gratification in form of loan that was subsequently repaid—Whether gratification taking form of loan of money should be treated differently from gratification taking form of gift of money—Whether recipient who repaid loan liable to penalty order for sum equivalent to amount of money originally received—Section 13 Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Penalties—Sentencing for offences under s 6 (a) Prevention of Corruption Act (Cap 241, 1993 Rev Ed) —Relevant factors to be considered in sentencing—Accused forbearing reporting of non-compliance of regulatory and contractual breaches in exchange for gratification—Whether accused's corrupt acts constituting perversion of course of justice by undermining law enforcement process—Section 6 (a) Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

Criminal Procedure and Sentencing—Sentencing—Principles—Principle of parity of sentencing as between giver and recipient of gratification—Giver of gratification sentenced to one year's imprisonment—Whether starting point of imprisonment sentence for recipient of gratification had to be one year

The accused was employed as an assistant property executive by Jurong Town Corporation (‘JTC’). He was tasked to conduct periodic checks and inspections at premises leased out by JTC to ensure that the lessees complied with applicable local laws and regulations as well as with the terms of their leases, and was obliged to report any such infringements. The accused conducted inspections at dormitories for foreign workers at a number of JTC-owned premises which were managed by the giver of the gratification, one Chew Wee Kiang Allen (‘Allen’). The accused discovered that foreign workers were being housed at the premises even though certain approvals from the Urban Redevelopment Authority and the Singapore Civil Defence Force had yet to be obtained at that time. The accused told Allen that he was in need of money and they subsequently came to an understanding that the accused would forbear from reporting the non-compliance that he had discovered in exchange for which Allen would extend some loans to him. Over a period of more than a year, the Accused received $31,500 by way of loans from Allen and attempted to obtain a further loan of $5,000 from the latter.

These formed the basis for thirteen charges of corruption under s 6 (a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (‘the PCA’) against the Accused. Six of those charges were proceeded with and he pleaded guilty to all of them. In respect of those six charges (‘the charges proceeded with’), the Accused had received a total sum of $25,000 pursuant to a number of loans which he had corruptly obtained, namely, one loan of $20,000 and five loans of $1,000 each. A further seven charges were taken into consideration for the purposes of sentencing. Those seven charges (‘the charges taken into consideration’) concerned a number of loans for a total sum of $6,500 and one attempt to obtain a further loan of $5,000. The district judge (‘the DJ’) sentenced the Accused to a total of eight month's imprisonment. The DJ further ordered the accused to pay a penalty of $25,000 under s 13 (1) of the PCA, which provided for the imposition of a penalty where a person was convicted of an offence involving the acceptance of gratification in contravention of any provision of the PCA. The DJ declined to make an order against the accused under s 13 (2) which provided for the imposition of a penalty for charges involving the acceptance of gratification in contravention of any provision in the PCA which were taken into consideration by the court for the purposes of sentencing.

Both the Prosecution and the accused appealed against the imprisonment sentence. The latter contended that the sentence was manifestly excessive while the former contended that the sentence was manifestly inadequate. The accused also appealed against the penalty order made under s 13 (1), seeking a reduction in the aggregate amount which he was to pay as a penalty from $25,000 to $11,500. The Prosecution also appealed against the DJ's decision not to make a penalty order under s 13 (2) and sought a penalty order for the aggregate sum of $31,500 instead.

Held, allowing both appeals in part:

(1) When sentencing an offender for offences under s 6 (a), it would be relevant to have regard to the following non-exhaustive list of factors: (a) whether the offence was committed by a public servant; (b) what the value of the gratification was; (c) the nature of the offender's corrupt acts and the seriousness of the consequences of those acts to the public interest, with corrupt acts that had the object and/or effect of perverting the course of justice or affecting public health and safety standing out in particular as egregious; (d) the offender's seniority and position within the organisation which was his principal for the purposes of s 6 (a), and the nature of the duty owed to that organisation, which duty was compromised by the offender's corrupt act; and (e) the level of control enjoyed by the offender over whether any action would be taken or forborne to be taken as a result of his corrupt act: at [28] .

(2) Applying the abovementioned factors to the present appeals: the accused was a public servant; the gratification amounting to $31,500 and an attempted loan of $5,000 was substantial; the nature and the consequences were not so serious as to constitute perverting the course of justice by undermining the law enforcement process; and the accused although not in a particularly senior position in JTC was in a position of trust and had seriously compromised his duty owed to JTC: at [29] to [32] .

(3) The sentencing precedents relied upon by the Prosecution were not entirely apposite because they were cases in which, as a direct consequence of the offenders' corrupt acts, the givers of the gratification had been able to avoid detection and punishment for their criminal activities, and the failure of the accused persons in those cases to carry out their duties of law enforcement had a greater adverse impact on law and order in Singapore. The accused's acts did not threaten to undermine law enforcement processes in a similar way: at [33] and [34] .

(4) The principle of parity of sentencing as between the giver and the recipient of gratification could not be viewed or applied as an inflexible and rigid rule. Although the general principle was that the giver and the recipient of gratification were equally culpable, many other factors had to also be considered when deciding on the sentence to be imposed on the particular accused person who was before the court. These factors might relate to the degree of culpability of each individual offender in committing the corrupt acts, the unique circumstances of each offender, and also that the sentence imposed on the counterparty in the earlier decision might have been too high or too low by reference to the applicable sentencing precedents: at [45] .

(5) Having regard to the factors to consider in sentencing for offences under s 6 (a), the sentence that was imposed on Allen, and the fact that this was the first offence committed by the accused who did so at an advanced age, the aggregate imprisonment sentence of eight months was neither manifestly excessive nor manifestly inadequate: at [47] .

(6) Gratification that took the form of a loan of money should be treated differently from gratification that took the form of a gift of money, such that offenders who receive money gratification in the form of a loan and who subsequent repay that loan should not be liable to a penalty order under s 13 for a sum equivalent to the amount originally received: at [62] .

(7) The purpose of s 13 was primarily to ensure that offenders were not able to retain their ill-gotten gains and was not meant to operate as an additional punitive measure. In the case of money gratification in the form of a loan that was subsequently repaid, there would generally be no question that the money received was not ill-gotten gains that were retained by the offender: at [61] and [69] .

(8) In determining whether the gratification concerned was given as a gift or as a loan, the court was not confined to examining only the subjective intentions of the giver and the recipient at the time of the corrupt transaction. The key question was whether the recipient had retained the benefit of the gratification: at [70] and [71] .

(9) The underlying principle in general was that where the gratification took the form of a loan of money, a penalty order for a sum equivalent to the sum of money received by the recipient would not be appropriate where: (a) the recipient had returned or repaid the money to the giver; or (b) the money had been disgorged from the recipient, whether voluntarily or otherwise: at [71] .

(10) Where money gratification was given as a gift, the sum of money received was itself the gratification, and that the value of the gratification was the amount of money received. Where money gratification was given as a loan and was subsequently repaid by the recipient, then the value of the gratification was not to be equated with the sum of money received. In such circumstances, the gratification could be quantified for the purposes of s 13 either by reference to the value to the recipient of having had the use of that sum of money from the time of receipt to the time of repayment or by some other method that would not amount to additionally penalising the offender who had...