Public Prosecutor v Tan Kok Ming Michael and other appeals

• Jurisdiction: Singapore
• Judge: Hoo Sheau Peng J
• Judgment Date: 06 September 2019
• Docket Number: Magistrate's Appeal Nos 9187 of 2018/01, 9187 of 2018/02, 9200 of 2018/01 and 9200 of 2018/02
• Court: High Court (Singapore)

Public Prosecutor

and

Tan Kok Ming Michael and other appeals

[2019] SGHC 207

Hoo Sheau Peng J

Magistrate's Appeal Nos 9187 of 2018/01, 9187 of 2018/02, 9200 of 2018/01 and 9200 of 2018/02

High Court

Criminal Procedure and Sentencing — Sentencing — Appeals — Accused person corruptly giving gratification for benefit of foreign public officials as reward — Foreign public official corruptly accepting gratification as reward — Whether sentence manifestly excessive or inadequate — Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Forms of punishment — Returning to offender bribe money given by him before money reached intended recipients — Whether fine additional to term of imprisonment appropriate for disgorgement of returned bribe moneys — Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Forms of punishment — Returning to offender bribe money given by him before money reached intended recipients — Whether fine additional to term of imprisonment appropriate for disgorgement of returned bribe moneys — Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

Criminal Procedure and Sentencing — Sentencing — Principles — Foreign public official corruptly accepting gratification as reward — Whether accused person's medical condition warrants exercise of judicial mercy — Prevention of Corruption Act (Cap 241, 1993 Rev Ed)

Held, dismissing the appeals in Tan's case and Kaur's appeal, allowing the Prosecution's appeal in Kaur's case and enhancing Kaur's sentence:

(1) Corruption of foreign public officials did not, and should not, fall within the ambit of the public service rationale. The public service rationale was concerned with preventing corruption of Singapore's public administration. Extending its scope so as to fit cases involving foreign public sector corruption would dilute the true purpose and meaning of the principle. The public interest and the public service rationale were distinct: at [69] to [72].

(2) Nevertheless, the bribery of foreign public officials implicated Singapore's public interest, and it could not be said to be akin to “merely commercial” cases of corruption. The appropriate course was to recognise the corruption of foreign public officials as an aggravating factor distinct from the public service rationale. The former aggravating factor was grounded in the public interest, which was distinct from that underlying the latter aggravating factor. Some non-exhaustive aspects of the public interest underlying the corruption of foreign public officials included the threat to Singapore's international reputation for incorruptibility, the undermining of Singapore's obligations and efforts to combat transnational corruption, and the risk of fostering a culture of corruption in Singapore. This aggravating factor arose where a foreign public official was a recipient or the intended recipient of the bribe, and “foreign public official” included any employee of a foreign government: at [75] to [78], [80] to [85], [92], and [149].

(3) It was not appropriate to formulate a general sentencing framework for ss 5 and 6 PCA offences. There was insufficient analysis to show that the full spectrum of punishment had not been considered in past cases. Furthermore, given the wide variety of acts caught by ss 5 and 6 PCA, a single sentencing framework would not be adequate to cater to the full range of different factual scenarios. The context in which the corruption occurred had to be considered to determine how aggravating factors present were to be weighed: at [96] to [98], and [104].

(4) Where the aggravating factor of the corruption of a foreign public official was present, the starting point would be a custodial sentence. Within this category of offences, the sentencing factors identified in previous cases of corruption applied as well: at [105].

(5) Tan's case should not be classified as one of private sector corruption. Tan, in giving gratification to Owyong for the benefit of APMM officers, triggered the policy considerations relevant to the corruption of foreign public officials. A custodial sentence was thus appropriate: at [110].

(6) Tan had knowledge of Owyong's connection with APMM, based on his statement of facts which he admitted to without qualification: at [111].

(7) The facts of Tan's 1st TIC charge, as included in Tan's statement of facts, were that Tan made payment to Owyong to bribe APMM officials, which was for the purpose of inducing their release of his vessels. These facts could be considered at sentencing. At the material time, Tan believed that Owyong had been successful in the incident giving rise to the 1st TIC charge, and that subsequently giving gratification to the APMM officers through Owyong would in all likelihood induce APMM's detention of the Aquatera07: at [113] to [115].

(8) The District Judge's inferences to the effect that Tan wanted to gain an unfair advantage in the market were in relation to Tan's motivations, and not the actual advantages he reaped from his corrupt transaction. She did not err in this regard: at [117].

(9) Although Owyong returned S$8,500 to Tan, the full S$10,000 Tan gave to Owyong for the benefit of APMM officers should be considered. Further, the amounts involved in the TIC charges (S$20,000) could also be considered in the sentencing court's exercise of its discretion to accord the TIC charges due weight: at [118].

(10) The transaction was initiated via a discussion between Tan and Owyong. Tan broached the subject of sabotaging his competitors first, and in response Owyong asked for S$10,000: at [119].

(11) Tan wanted to induce the APMM officers to exercise their powers of detention, notwithstanding that such an exercise would be illegitimate. This reflected his culpability. However, as for the aspect of harm, not only was the Aquatera07 not detained, the facts do not establish that the APMM officers were eventually in receipt of any gratification. Given the extent of the admitted facts, there was no potential undermining of Singapore's port and maritime industries: at [121] and [122].

(12) The fact that Tan had not offended two years after learning of Owyong being a “fixer”, and even initially refused Owyong's offer to bribe APMM officers in 2015, did not reveal “restraint”. Saying so was speculative, and failed to recognise that such a fact is merely neutral: at [124].

(13) Based on the facts and circumstances of Tan's case, and the relevant sentencing precedents, Tan's sentence of four months' imprisonment was neither manifestly excessive nor inadequate: at [127] to [132].

(14) No additional fine was imposed on Tan to disgorge the returned bribe money. One purpose of imposing such an additional fine was to disgorge the offender's substantial benefit or profits from his offending. The purpose of such disgorgement was to deter offenders. A custodial sentence imposed on Tan without any additional fine was sufficient punishment: at [134], [139] and [140].

(15) The District Judge was correct in declining to apply the doctrine of judicial mercy in Kaur's case. Nothing in the evidence showed that imprisonment would risk exacerbation or recurrence of Kaur's medical condition. For similar reasons, no sentencing discount was warranted on account of her medical condition: at [147] and [148].

(16) Kaur was a foreign public official; it did not matter that she was a civilian employee who was not in the uniformed service. Kaur's case therefore fell within the category involving corruption of foreign public officials, which was an aggravating feature: at [149].

(17) Kaur could not be said to have offended as part of the wider conspiracy involving the corruption of other US Navy officials forming Leonard's bigger scheme, as the facts did not disclose her awareness of this. In so far as Kaur's offences concerned the US Navy, the aggravating factor of the corruption of a foreign public official was applicable, and took into account this transnational connection: at [151] and [152].

(18) While the degree of sophistication was not at the high end of the spectrum, that did not detract from the fact that Kaur had taken careful steps to conceal her illicit disclosure to Leonard. These were important steps to avoid detection, and revealed Kaur's premeditation: at [155].

(19) Kaur stood in a position of substantial trust and authority. She committed a serious breach of trust by disclosing confidential information to Leonard and by behaving as GDMA's “insider”, furthering its business interests as far as possible: at [157].

(20) The quantum of gratification involved in the 4th and 6th charges was high. Furthermore, in respect of the 6th charge, the gratification enabled Kaur to purchase an asset which she subsequently sold for a profit. In respect of the 9th charge, the bribe had to be viewed in context, and here, the gratification amount involved in the 9th charge was sizeable as it started as a blank cheque to Kaur: at [158].

(21) While it was unclear who initiated the arrangement between Kaur and Leonard, it is clear that Kaur prompted Leonard into giving her gratification in relation to the 6th and the 9th charges. In relation to the 9th charge, there was a significant extent of prompting, which involved Kaur contacting Leonard and providing further information. This was aggravating: at [159].

(22) Based on the facts and circumstances of Kaur's case, and the relevant sentencing precedents, Kaur's sentences were not manifestly excessive. Instead, they were manifestly inadequate. The individual sentences were enhanced to imprisonment terms of 16 months for the 4th charge, 19 months for the 6th charge, and 14 months for the 9th charge. The five-month imprisonment term for the 7th charge remained. The 4th, 6th and 7th charges ran consecutively, which resulted in a global sentence of 40 months' imprisonment: at [160] to [162].

Case(s) referred to

Angliss Singapore...