Public Prosecutor v Tan Kok Ming Michael and other appeals

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng J
• Judgment Date: 06 September 2019
• Neutral Citation: [2019] SGHC 207
• Court: High Court (Singapore)
• Docket Number: Magistrate’s Appeal Nos 9187 of 2018/01, 9187 of 2018/02, 9200 of 2018/01 and 9200 of 2018/02
• Published date: 05 December 2019
• Year: 2019
• Hearing Date: 22 February 2019
• Plaintiff Counsel: Jiang Ke-Yue, Kelvin Chong and Ang Siok Chen (Attorney-General's Chambers)
• Defendant Counsel: Edmond Pereira and Amardeep Singh s/o Gurcharan Singh (Edmond Pereira Law Corporation),Suresh s/o Damodara, Clement Ong and Sukhmit Singh (Damodara Hazra LLP),Chew Xiang (Rajah & Tann Singapore LLP) as young amicus curiae.
• Subject Matter: Criminal Procedure and Sentencing,Sentencing,Appeals,Sentencing principles,Forms of punishment
• Citation: [2019] SGHC 207

Hoo Sheau Peng J: Introduction

These are cross-appeals against the sentences imposed on Tan Kok Ming, Michael (“Tan”) and Gursharan Kaur Sharon Rachael (“Kaur”) in two separate cases. In the first case, Tan pleaded guilty to and was convicted of one charge under s 5(b)(i) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“PCA”). In the second case, Kaur pleaded guilty to and was convicted of three charges under s 6(a) of the PCA and one charge under s 47(1)(c) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Cap 65A, 2000 Rev Ed) (“CDSA”).

The appeals were heard at the same time because of two common issues. The first issue is whether a sentencing principle known as the public service rationale is applicable in a corruption case where the recipient or intended recipient of a bribe is a foreign public official, and if not, whether the public service rationale should be extended to cover such a scenario. As explained in detail at [62] below, the public service rationale (interchangeably referred to as the public sector rationale) was developed by case law as an aggravating factor in sentencing. The second issue is whether a sentencing framework should be formulated for all corruption offences under ss 5 and 6 of the PCA, and if so, whether the sentencing framework proposed by the Prosecution should be adopted. A young amicus curiae (“the amicus”) was appointed to assist the court on the former issue.

In addition to these common issues, on various grounds, the parties argued that the sentence of four months’ imprisonment imposed on Tan and that of 33 months’ imprisonment imposed on Kaur warrant appellate intervention.

Having had the benefit of submissions of parties and the amicus, this is my decision.

Facts

The facts are as set out in the respective Statement of Facts (“SOF”) admitted to by Tan and Kaur. The contents of Tan’s SOF are reproduced at [4]–[14] of the District Judge’s grounds of decision in Public Prosecutor v Tan Kok Ming, Michael [2018] SGDC 213 (“Tan Michael”), while those in Kaur’s SOF are substantially set out at [3]–[23] of Public Prosecutor v Gursharan Kaur Sharon Rachael [2018] SGDC 217 (“Gursharan Kaur”). I summarise them here.

Tan

Tan pleaded guilty to a charge under s 5(b)(i) of the PCA, for giving one Owyong Thian Lai (“Owyong”) a sum of S$10,000 for the benefit of officers of the Malaysian Maritime Enforcement Agency (known as “APMM”) to detain a vessel belonging to his competitor, Continental Platform Pte Ltd (“CP”). Two further charges under s 5(b)(i) of the PCA were taken into consideration for the purposes of sentencing.

Background

Tan was the sole owner and director of Dynamix Marine Petroleum & Trading Pte Ltd (“Dynamix”), an oil trading company which owned vessels for its business. Tan was acquainted with Owyong since 2014, and knew that Owyong had a reputation for being a “fixer” in the oil market, ie, Owyong was able to help vessel owners resolve or prevent problems with Malaysian and Indonesian authorities through bribes. One such authority was the APMM, an enforcement authority which preserved the security of the Malaysian Maritime Zone.

In 2015, prior to the events of the charge, Owyong became aware that APMM had detained one of Tan’s vessels, the Vitology. He told Tan that he could pay APMM officers a sum of RM100,000 to secure the release of the Vitology. Tan refused, as the matter had already reached the Malaysian courts.¹

The charge

Sometime in late June 2016, Tan and Owyong had a discussion to sabotage two of Tan’s competitors in Singapore, Kian Guan Industries Pte Ltd (“KGI”) and CP. Tan wanted Owyong to get APMM officers to detain the AquaTera07, a vessel owned by CP, and spread the news that KGI sabotaged CP. In this manner, CP and KGI would get into a conflict, leaving Dynamix to “conquer the market”.

Owyong asked for S$10,000 for the APMM officers, which included S$1,500 for their fuel costs. Tan agreed. Pursuant to this, Tan later handed over S$10,000 in cash to Owyong for the benefit of the APMM officers. In doing so, Tan intended the money to be an inducement for the APMM officers to detain CP’s vessel. This is the subject matter of the charge under section 5(b)(i) of the PCA (DAC-940630-2017).

Eventually, Owyong did not follow through with the agreement. He returned S$8,500 out of the sum of S$10,000 to Tan sometime in July 2016, stating that the remaining S$1,500 had been passed to APMM officers for the purchase of fuel.

Charges taken into consideration

I summarise the facts relating to the two charges taken into consideration: DAC-940629-2017 (“Tan’s 1st TIC charge”): In May 2016 (prior to the events of the proceeded charge), two of Tan’s vessels, the Advance Ocean and the An Phu 16 were detained by APMM. Tan knew that Owyong was able to resolve the problem with APMM by giving money to APMM officers. He gave Owyong a sum of S$10,000 for the benefit of the APMM officers to induce them to release the vessels. He also gave a commission of S$2,000 to Owyong. Thereafter, APMM released the two vessels.² DAC-940631-2017 (“Tan’s 2nd TIC charge”): On 7 July 2016, Tan promised to give Owyong an additional S$10,000 for the benefit of APMM officers if he saw proof of the detention of the AquaTera07 in the form of a newspaper report. This sum was intended to reward the APMM officers for the detention of CP’s vessel. Owyong did not agree to this request.³

Kaur

Turning to Kaur, she was an employee of the US government. She pleaded guilty to three charges under s 6(a) of the PCA, for accepting bribes from one Leonard Glenn Francis (“Leonard”), the chief executive officer of Singapore-incorporated Glenn Defense Marine (Asia) Pte Ltd (“GDMA”), to provide non-public information on the US Navy to him. She also pleaded guilty to one charge under s 47(1)(c) of the CDSA, for using the benefits of her criminal conduct to acquire property. Five other charges were taken into consideration for the purposes of sentencing.

Background

At the material time, Kaur was a Lead Contract Specialist of the US Navy based at its Supply Systems Command Fleet Logistics Centre in Singapore (“NAVSUP FLC Singapore”).⁴ She performed duties of a senior contract specialist, and led a team of contract specialists. She was authorised to enter into multi-million dollar contracts on behalf of the US federal government. She therefore stood in a position that required substantial trust, responsibility and accountability to the US government.⁵

In the main, her role as a Lead Contract Specialist included managing complex ship-husbanding contracts. This required her to draft and develop contract requirements, strategise procurements, engage in sensitive foreign country coordination and discussions at senior management levels, conduct pre-award market surveys, solicit, negotiate and evaluate bids, evaluate quotes, and assess performance after the services were provided.⁶

Kaur was subject to federal regulations which prohibited, inter alia: (a) the disclosure of non-public information of the US Navy to external parties; and (b) the acceptance of any bribe, gratuity and/or any form of benefits in the course of employment.⁷

Kaur’s SOF also included the following information. In 2012, Leonard was discovered to be bribing US Navy personnel with millions of dollars’ worth of gifts⁸ in order to, inter alia, divert US Navy vessels to ports in the Pacific and South East Asia where GDMA had a presence, and supply classified and other non-public information. This enabled GDMA to secure lucrative ship-husbanding contracts to supply US Navy vessels at ports located in the region. GDMA also overcharged for goods and services supplied at these ports, defrauding the US Navy of about US$35 million.⁹ The investigations uncovered that the decade-long bribery and fraud conspiracy extended to numerous countries, was the largest in the US Navy’s history, and involved numerous US Navy personnel (including senior personnel).¹⁰

Kaur first became acquainted with Leonard sometime in 1999 to 2005¹¹ when she held a more junior rank. She had more significant interactions with him after she was promoted to Lead Contract Specialist.

On numerous occasions from 2006 to 2013, Kaur initiated disclosure of non-public information of the US Navy to Leonard. Such information included inter alia, procurement-sensitive information, strategic information on new ship-husbanding contracts, pricing strategy, price information of GDMA’s competitors, the names of personnel on the contracts review board, and even the questions posed by the review board to GDMA’s competitors.¹²

In return for the inside information, Kaur and Leonard had a shared understanding that Kaur would be duly rewarded for providing non-public information about the US Navy on an ongoing basis, with a view to ensuring GDMA retained an advantage.¹³ As a result, Leonard could ensure that GDMA’s bids were competitive, so that GDMA continued to secure lucrative ship-husbanding contracts with the US Navy.¹⁴

Kaur took great efforts to conceal her illicit disclosure of information to Leonard.¹⁵ I elaborate on this below at [153]. Furthermore, Kaur understood that, as GDMA’s “insider” within NAVSUP FLC Singapore, she was expected to further GDMA’s interests as far as possible and whenever the opportunity arose. On numerous occasions, Kaur sought Leonard’s input on submissions she made to her superiors, and written replies that she sent on behalf of the US Navy to GDMA’s competitors in connection with potential or ongoing contracts with the US Navy.¹⁶

In all, the inside information leaked by Kaur was linked to 16 US Navy contracts. Of these 16, GDMA bid for 14, and was awarded 11 contracts worth a total of about US$48 million.

4th charge

In December 2008, Leonard arranged for the delivery of a hamper containing food, alcohol, and a red packet with...