Public Prosecutor v Syed Mostofa Romel

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 28 April 2015
• Neutral Citation: [2015] SGHC 117
• Plaintiff Counsel: Grace Lim (Attorney-General's Chambers)
• Docket Number: Magistrate’s Appeal No 9019 of 2015
• Date: 28 April 2015
• Hearing Date: 26 March 2015
• Subject Matter: Appeals,Criminal procedure and sentencing,Sentencing
• Year: 2015
• Citation: [2015] SGHC 117
• Defendant Counsel: Thong Chee Kun, Ho Lifen and Muslim Albakri (Rajah & Tann Singapore LLP)
• Court: High Court (Singapore)
• Published date: 30 April 2015

Sundaresh Menon CJ: Introduction

This was an appeal brought by the Public Prosecutor (“the Prosecution”) against a sentence imposed by a district judge (“the DJ”). The Prosecution submitted that the concurrent two-month imprisonment sentences imposed on the respondent, Syed Mostofa Romel (“the Respondent”), for two charges of corruption under s 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“PCA”) was manifestly inadequate and should be increased to between six to eight months. I allowed the Prosecution’s appeal and set out my reasons below. The DJ’s decision can be found at [2015] SGDC 51 (“the Judgment”).

Facts The background

The Respondent was a 50 year-old Bangladeshi national. He was employed by PacMarine Services Pte Ltd (“PacMarine”) as a trainee Associate Consultant. PacMarine was in the business of marine surveying. As an Associate Consultant, the Respondent’s duties included conducting inspections of vessels seeking to enter an oil terminal. His specific responsibilities included the following (see the Judgment at [3]): certifying that the vessel had the correct documents; ensuring that the cargo was properly documented; and ensuring that the vessel was seaworthy and free from any high-risk defects.

Where the defects on a vessel were identified in the course of a survey but classified as low to medium-risk, the vessel would generally be allowed to dock at the oil terminal where the rectification works would be carried out. Where the defects were classified as high-risk, rectifications would have to be carried out before the vessel would be permitted to enter the oil terminal: see the Judgment at [3]. Regardless of how the defects were classified in any given case, after the vessel inspection survey had been conducted, the Respondent would prepare a report and submit it to his supervisor.

The offences

The Respondent was charged with a total of three offences under s 6(a) of the PCA. Two charges were proceeded with and the remaining one was taken into consideration for the purposes of sentencing. The proceeded charges are DAC 911675/14 and DAC 916677/14. Before I set out the facts which gave rise to the respective charges, I first set out for convenience, s 6(a) of the PCA:

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.

DAC 911675/14

On 10 March 2014, the Respondent conducted a vessel safety inspection on the “MT Torero” at Vopak Terminal Banyan Jetty. After the inspection, he spoke to the ship master, Mr Vladimir Momotov (“Mr Momotov”), and the chief engineer, Mr Noel Casumpang Janito, to highlight several high-risk observations which would likely result in the vessel not being allowed to enter the terminal until these defects had been rectified: see the Judgment at [3].

Mr Momotov did not agree with the observations and thought that the defects were minor ones which could be readily rectified. He also felt that they ought not even to be reflected in the inspection report. He asked the Respondent how he could resolve the situation and the Respondent informed him that money would do so. After some discussion, it was agreed that the Mr Momotov would pay the Respondent the sum of US$3,000. The Respondent in return omitted to include the “high-risk observations” in the final printed report for the MT Torero: see the Judgment at [4].

DAC 916677/14

Unknown to the Respondent, Mr Momotov had reported the incident. As a result, when the same vessel arrived on a subsequent occasion on 27 May 2014, the Corrupt Practices Investigation Bureau (“CPIB”) was standing by and launched a sting operation. The Respondent was assigned to conduct the vessel safety inspection and unknown to him, the vessel had been prepared beforehand with high-risk defects which ought to have been highlighted in the inspection report. The Respondent proceeded to inspect the vessel and having identified the breaches, he spoke to Mr Momotov to highlight the high-risk defects that he had identified. Mr Momotov then asked him how the problem could be avoided and the Respondent reminded him of the last occasion when money had been paid to him. He asked Mr Momotov to do the same once again.

Mr Momotov passed the Respondent US$3,000 which had been prepared beforehand and the Respondent proceeded to print out the inspection report omitting any mention of the high-risk observations. The Respondent was then arrested by the CPIB (see the Judgment at [5]). In the subsequent investigations, a total sum of US$7,200 was recovered from the Respondent house when the CPIB searched the premises.

The charge taken into consideration: DAC 916676/14

DAC 916676/14 was the charge that was taken into consideration for sentencing. On 17 March 2014, the Respondent corruptly obtained the sum of US$1,200 from the ship master of the MT Topaz Express, Mr Vishal Verma (“Mr Verma”), in return for which he issued a favourable inspection report for the vessel.

Decision Below

The Respondent pleaded guilty to the offences he was charged with and was sentenced by the DJ to two months’ imprisonment for each charge with both sentences to run concurrently. He gave the following reasons for his decision: The main sentencing considerations in corruption cases were deterrence and punishment: the Judgment at [12]. While the “public service rationale” principle could be applied to the private sector (see Ang Seng Thor v Public Prosecutor [2011] 4 SLR 217 (“Ang Seng Thor”)), it should not be extended to the present case as the principle would be stretched too far. Instead, causing a loss of confidence in the maritime industry should just be treated as a separate aggravating factor: the Judgment at [14]. It was irrelevant that the Respondent did not have the final say on whether the vessel could dock or not: the Judgment at [15]. The Respondent’s mitigating factors were of little weight as they constituted personal and family hardship and did not justify a non-custodial sentence: the Judgment at [16].

No order was made under s 13 of the PCA as the amount that had been corruptly received by the Respondent had been fully recovered: see the Judgment at [18].

The law on corruption

Corruption finds its origins as an offence in the common law. In England, it has been characterised as “the product of a hesitant common law and piecemeal and overlapping statutory development”: Criminal Law: Essays in Honour of J C Smith (Peter Smith, ed) (Butterworths, 1987) at p 92. The common law offence was later supplemented by the Public Bodies Corrupt Practices Act 1889 (c 69) (UK) and this was eventually extended to private agents under the Prevention of Corruption Act 1906 (c 34) (UK) (“the 1906 Act”). It was the 1906 Act which provided the background against which we in Singapore saw the enactment of the Prevention of Corruption Act (Ordinance 39 of 1960) (“the Ordinance”): Michael Hor, “The Problem of Non-Official Corruption” (1999) 11 SAcLJ 393 at p 393.

The passage of the Ordinance in 1960 was a milestone in our legal history; but even more, it was a watershed moment in our national history as the government of the day embarked on a ground-breaking and sustained campaign to tackle the scourge of corruption in all its forms and resolved to eradicate its hold at every level in our society. In the 55 years since then, our national character has come to be defined, among other things, by an utter intolerance for corruption.

At the Second Reading of the Prevention of Corruption Bill, the then Minister for Home Affairs, Mr Ong Pang Boon, said that the Bill would provide more effective powers to fight bribery and corruption so as to “make its detection easier and to deter and punish severely those who are susceptible to it and engage in it shamelessly.” (Singapore Parliamentary Reports, Official Report (13 February 1960) vol 12 at col 377 (Ong Pang Boon, Minister for Home Affairs)). It has more recently been noted by Law Minister K Shanmugam in his speech “The Rule of Law in Singapore” [2012] Sing JLS 357 at p 357, that one of the characteristics that defines Singapore is our intolerance of corruption. But as successful as we have been in tackling corruption, there remains a need for the legal framework to be reviewed periodically to ensure that it is equal to the task. One aspect of that framework is sentencing and as this case concerns an appeal against sentence, I will focus on the sentencing aspects of both public and private sector corruption.

Public sector corruption

Public sector corruption typically attracts a custodial sentence. This is unsurprising, and the reasons are well-known. In Public Prosecutor v Chew Suang Heng [2001] 1 SLR(R) 127 at [10]–[11], Yong Pung How CJ observed that: 10 For corruption offences under the PCA which involve government servants, the norm is a custodial sentence and it is departed from where the facts are exceptional. For example, in Meeran bin Mydin v PP [1998] 1 SLR(R) 522, the appellant had pleaded guilty to two charges of bribing an immigration officer and was sentenced to nine months' imprisonment on each charge. 11 There is no doubt that an element of public interest exists in corruption offences involving the bribery of a public servant and that the courts have taken a stern view of such offences. In view of this public interest...