Takaaki Masui v Public Prosecutor and another appeal and other matters

• Jurisdiction: Singapore
• Judge: Chan Seng Onn J
• Judgment Date: 02 December 2020
• Neutral Citation: [2020] SGHC 265
• Published date: 05 February 2021
• Docket Number: Magistrate’s Appeals Nos 9178 of 2018/01 and 9179 of 2018/01 and Criminal Motions Nos 35 and 36 of 2019
• Year: 2020
• Hearing Date: 26 July 2019,03 February 2020,21 August 2020,24 February 2020
• Plaintiff Counsel: Nicolas Tang and Charlotte Wong (Farallon Law Corporation)
• Citation: [2020] SGHC 265
• Defendant Counsel: Jasmin Kaur, Loh Hui-min and Lee Jing Yan (Attorney General's Chambers),Sunil Sudheesan and Diana Ngiam (Quahe Woo and Palmer LLC)
• Court: High Court (Singapore)
• Subject Matter: Prevention of Corruption Act,Criminal Law,Principles,Statutory offence,Appeals,Sentencing,Criminal Procedure and Sentencing

Chan Seng Onn J: Introduction

The aim of all sentencing courts, without exception, is to arrive at an appropriate sentence that befits the crime committed by the offender, after having regard to all the relevant facts, circumstances and societal context surrounding the offence. It is this infinite permutation of relevant considerations that renders sentencing a fluid exercise, and which accords the sentencing judge a degree of flexibility and autonomy in arriving at the appropriate sentence. This appropriate sentence is not defined by a rigid formula or a set of unyielding rules. Instead, the court’s discretion is guided by broad general principles of sentencing.

In Singapore, the sentencing process is further aided by the recent proliferation of sentencing guidelines and frameworks in our courts’ jurisprudence that guide, rather than restrict, the sentencing court’s discretion. These judicial creations take a wide variety of forms and have been applied to a wide assortment of offences. Constructed well, they are tools that promote consistency and transparency in our criminal justice system (amongst other aims), while reducing uncertainty and arbitrariness. Constructed poorly, they may generate unintended gaps, discontinuities, ceilings and/or minimum sentences which may result in incoherence and uncertainty in the sentencing process.

When constructing frameworks and guidelines, the form that each framework or guideline takes is secondary. What matters is its substantive content, and whether it adheres to and abides by the broad general principles of sentencing. The present appeals present an opportunity to revisit some of these broad general principles of sentencing.

Facts

The present appeals concern one of Singapore’s largest private sector corruption cases to date. The appellants, Takaaki Masui (“Masui”) and Katsutoshi Ishibe (“Ishibe”), each faces 28 charges under s 6(a) read with s 29(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“PCA”) for conspiring with one another to corruptly obtain bribes from one Koh Pee Chiang (“Koh”) as an inducement for doing acts in relation to their employers’ affairs. After a 15-day trial, the District Judge (“DJ”) convicted them on all charges. His decision can be found in Public Prosecutor v Katsutoshi Ishibe and another [2018] SGDC 239 (“Decision”). The DJ sentenced each appellant to 66 months’ imprisonment and a penalty of S$1,025,701 (in default to serve six months’ imprisonment) (Decision at [129], [132]).

The first charge for Masui is reproduced as follows:

You,

…

are charged that you, between 2002 and 2007, in Singapore, being an agent of [Nissho Iwai International (Singapore) Ltd/ Sojitz Asia Pte Ltd] did abet by engaging in a conspiracy with [Ishibe] to corruptly obtain from [Koh], trading as Chia Lee & Co (“Chia Lee”), gratification as an inducement for doing acts in relation to your principal’s affairs, to wit, by assisting Chia Lee to advance its business interest with [Nissho Iwai International (Singapore) Ltd/ Sojitz Asia Pte Ltd], and in pursuance of the conspiracy and in order to the doing of that thing, an act took place, to wit, sometime in February 2004, you did receive $71,773 from the said [Koh], which act was committed in consequence of your abetment and you have thereby committed an offence punishable under Section 6(a) r/w Section 29(a) of the Prevention of Corruption Act, Chapter 241.

The remaining 27 charges for Masui differ only in respect of: (a) the name of the appellants’ principal as it was renamed after a corporate merger; (b) the date on which the gratification was received; and (c) the amount of gratification received. Ishibe, as the co-conspirator faced the same 28 charges, except that the individual receiving the gratification from Koh was always Masui. For ease of reference, I refer to their respective charges as C1 to C28, with the understanding that each of these refers to one charge for Masui and/or one charge for Ishibe, as the case may be, ie, that C1 represents the first charge proceeded against Masui and/or Ishibe, as the case may be.

Procedural history

The appellants appealed against both their conviction and sentence, and their appeals were heard over the course of four non-consecutive days between 26 July 2019 and 21 August 2020.

On 26 July 2019, I allowed Ishibe’s criminal motion in Criminal Motion No 35 of 2019 to adduce further evidence in the form of the original charges against him dated 25 February 2015.¹ I also allowed Masui’s criminal motion in Criminal Motion No 36 of 2019 to adduce further evidence in the form of two versions of an email from Masui to Koh dated 10 February 2004, an affidavit from a forensic consultant in respect of the email and the original charges against him dated 25 February 2015.²

On 24 February 2020, after hearing the parties’ submissions and going through the evidence in substantial detail, I upheld the DJ’s conviction on all 28 charges. However, I amended the gratification quanta stated in the appellants’ C21 from S$102,115 to S$86,275, and C25 from S$137,340 to S$111,211. The total quantum of gratification received by the appellants is thus S$2,009,433.

Since the DJ’s decision on 19 September 2018, the law on sentencing for corruption offences has developed rapidly. Two new high court decisions on this general subject were published by the time the hearing of these appeals was completed: Hoo Sheau Peng J’s decision in PP v Tan Kok Ming Michael and other appeals [2019] 5 SLR 926 (“Michael Tan”) which involved the corruption of foreign public officials, and Sundaresh Menon CJ’s decision in Public Prosecutor v Wong Chee Meng and another appeal [2020] SGHC 144 (“Wong Chee Meng”) which laid down a sentencing framework for offences under s 6 read with s 7 of the PCA. I will deal with the impact of these decisions as and when they arise in the course of this judgment.

In line with these developments, the parties’ positions have also evolved during these appeal proceedings. To avoid confusion, I have taken the latest positions of the parties to be their final positions and will be referring to them throughout the course of this judgment, unless otherwise stated.

Facts

Apart from the exact quantum of the gratification received by the appellants, I am in agreement with the DJ’s findings of fact which can be found at [8]–[73] of the Decision. As this judgment focuses on the appeals against sentence, I shall only reproduce the salient facts as are necessary for an appreciation of the issues on sentence. I will also explain my decision to amend C21 and C25, and Ishibe’s new argument at the end of this section (see [32] onwards).

Background facts relating to the conviction

At the material time, the appellants worked as employees of Nissho Iwai Corporation (“Nissho Japan”), and following a merger between Nissho Japan and another company in April 2004, as employees of Sojitz Corporation (“Sojitz Japan”).³ At various points in their careers with the Japan Company, the appellants were seconded to Singapore to work for the wholly owned Singapore subsidiary of Nissho Japan, namely, Nissho Iwai International (Singapore) Ltd (“Nissho Singapore”). Following the abovementioned merger in April 2004, Nissho Singapore was renamed Sojitz Asia Pte Ltd (“Sojitz Singapore”).⁴ For ease of reference, Nissho Japan and Sojitz Japan (of which Nissho Japan became a part of after the merger) will be referred to collectively as the “Japan Company” if the temporal dimension is not important; and Nissho Singapore and Sojitz Singapore (the renamed entity after the merger) will be referred to as the “Singapore Company”. At all times, the appellants were agents of the Singapore Company and Japan Company.

The Japan Company is a trading company dealing in various commodities.⁵ Two of the products traded overseas by the Japan Company through its overseas subsidiary, ie, the Singapore Company, are edible and industrial wheat flour, the manufacturer and supplier of which is Nippon Flour Mills Co Ltd. (“Nippon Flour Mills”).⁶ Nippon Flour Mills would appoint its distribution agent for edible and industrial flour through the Singapore Company.⁷

Koh was the sole proprietor of Chia Lee & Co (“Chia Lee”), a longstanding distributor of edible flour for the Singapore Company. From 1978 to 2002, Chia Lee was the sole distributor of only edible flour for Nippon Flour Mills (through Nissho Japan) in Singapore.⁸

Both appellants held senior roles in the Japan Company and Singapore Company. Masui started work for Nissho Japan in 1987 and progressed up the ranks. In April 2002, he was seconded to Singapore and was subsequently entrusted with the role of General Manager of Nissho Singapore’s foodstuffs department in January 2004. He left the Singapore office in February 2005. After his return to Japan, he was promoted to General Manager of Sojitz Japan’s foodstuffs department from April 2005 to September 2007.⁹ There, he was responsible for the flour business in Japan and oversaw the flour business globally.¹⁰ Ishibe joined Nissho Japan in 1989. In October 2004, he was promoted to Manager of Sojitz Japan’s foodstuffs department.¹¹ Ishibe was responsible for, inter alia, the sale of flour to the Singapore Company from the Japan Company¹² and thus signed off on various flour packing lists.¹³

In the course of their employment, the appellants were in charge of setting the selling price of the edible flour, informing Koh (who was trading as Chia Lee) of the market price and negotiating with him in relation to the edible flour business.¹⁴

Prior to 2002, the industrial flour distributor for Nippon Flour Mills was a company called Sin Heng Chan.¹⁵ When Sin Heng Chan faced severe financial difficulties, Nissho Singapore searched for an alternative industrial flour distributor.¹⁶

Sometime in 2002, the appellants approached Koh and asked him for a “favour”....