THE MEANING OF ‘CORRUPTLY’

• Citation: (1999) 11 SAcLJ 147
• Date: 01 December 1999
• Author: CHRISTOPHER ONG DAREN TANG THOMAS KOSHY WENDELL WONG
• Published date: 01 December 1999

To take or not to take, that is the question

I. INTRODUCTION

No man does something for nothing. When a person does an act, he normally expects to obtain some reward for it. Likewise, a person can be induced by the offer of a reward to do something which he would otherwise not. Yet in certain situations, if a person accepts a reward or an inducement to do a certain thing, he is said to cause harm to others and be in violation of our corruption laws.

The common understanding is that this is necessary because persons in certain situations are expected to act not in their own interests but in the interest of a third party. This third party may be a principal in the case of a principal/agent relationship or it may be the public in the case of a public officer. By accepting a reward or an inducement for their own pockets, persons in such situations are pandering to their self-interest. They might then act contrary to the interests of those they are bound to consider as paramount or place themselves in a situation where there is a conflict of interests. Corruption laws criminalise such behaviour.

The exact scope of such laws varies of course from society to society. For example it may be universally agreed that it would be wrong for a judge to accept payment so that he makes a finding favourable to the payor. Yet not all societies would view as corrupt an agent who allows himself to be lavishly entertained by persons seeking to secure a contract with that agent’s principal. In determining what is corrupt, it is important to understand that the boundaries of the law of corruption are shaped by society’s norms1. In Singapore’s context, a corruption free environment has always been touted as one of the lynchpins of our success. Corruption laws are enforced and investigated by an agency specialising in corruption matters — the Corrupt Practices Investigation Bureau (CPIB). The Director of the CPIB is appointed by the President and CPIB officers are granted extensive powers of investigation, search and seizure2.

Singapore has consistently been ranked amongst the least corrupt countries in the world by independent agencies. Given that corruption

has always been in the limelight, and the development of corruption case law in the last few years, the authors feel that an examination of the law on corruption in Singapore is timely.

The starting point of our enquiry is the Prevention of Corruption Act. (Cap. 241) Section 53 of the Prevention of Corruption Act (PCA) states that:—

Any person who shall by himself or by or in conjunction with any other person —

1. (a) corruptly solicit or receive, or agree to receive for himself, or for any other person; or

2. (b) corruptly give, promise or offer to any person whether for the benefit of that person or of another person,

any gratification as an inducement to or reward for, or otherwise on account of —

1. (i) any person doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed; or

2. (ii) any member, officer or servant of a public body doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body is concerned,

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.

This provision is drafted in very wide terms and normal commercial transactions are prevented from falling within its reach only by the qualification that the gratification must be corruptly received or offered. While there are other sections in the PCA dealing with corruption, we shall focus mainly on this section as it has the broadest scope and has received the most judicial attention.

We begin by exploring early case law where certain comments were made on the scope of ‘corruptly’. Thereafter, we go on to look at the more recent cases and attempt to understand the current test that the Courts hañe evolved, which looks at the twin elements of corrupt element and guilty knowledge. To better understand the current test, a summary is then attempted of the factors which have been considered relevant to

the existence of a corrupt element and guilty knowledge. Next, the historical application of the test is critically reviewed. Finally we take a fresh look at the meaning of ‘corruptly’ and consider whether changes are needed to achieve the aims of the PCA.

II. THE EARLY CASES

In the early cases on corruption, the finding of corrupt giving or receipt was based on the accused person’s intention. This accords with common sense — in most corruption cases the fact that something of value has been given or received is not in dispute; rather, the case turns on the intention behind the giving or the receiving.

We start with the Privy Council decision in PP v Yuravaj4. There, a public servant was acquitted by the Malaysian High Court of a charge of corruption under section 4(a) of the Malaysian PCA5. A question was referred to the Federal Court concerning section 14 of the PCA, which creates a presumption of corruption against a public servant once receipt of gratification is proved6. Though the ratio of that case involved the burden of proof required to rebut a statutory presumption, a passage in the judgment is relevant:—

“The policy which underlies s 14 of the Prevention of Corruption Act 1961 is, in their Lordships’ view, clear. The section is limited to persons “in the employment of any public body”. No similar presumption applies to agents of private principals. Corruption in the public service is a grave social evil which is difficult to detect, for those who take part in it will be at pains to cover their tracks. The section is designed to compel every public servant so to order his affairs that he does not accept a gift in cash or in kind from a member of the public except in circumstances in which he will be able to show clearly that he had legitimate reasons for doing so.”7 (Emphasis added)

A question which was not addressed however, was what would qualify as a ‘legitimate reason’. The phrase is not found is the PCA and received no judicial elaboration in its short-lived existence in caselaw.

After Yuvaraj, two very important cases on corruption were decided in quick succession on both sides of the Causeway. Both these cases — Wee Toon Boon v PP8 and PP v Datuk Haji Harun bin Haji Idris (No 2)9 —

involved government officials at the highest level — one a Singapore Minister of State and the other a Malaysian Mentri Besar. In both countries, the appellate courts upheld convictions under their respective PCAs and sent out a strong signal that corruption was unacceptable.

The first case was in Singapore and involved Member of Parliament and Minister of State Wee Toon Boon. The evidence was that Wee had on several occasions personally interceded with different civil servants on behalf of one Lauw. In return, Lauw paid for Wee’s renovation works, guaranteed Wee’s overdraft facilities and even built a bungalow worth $532,000 for Wee. Wee was convicted of five counts of corruption under section 6(a) of the PCA. He appealed against his conviction to the High Court.

It was contended on behalf of Wee that the trial judge should have found that the appellant had proven that the gratifications were not corrupt and thus rebutted the presumption. It was also contended that such practices were common and harmless and were part of the business of Wee as a Member of Parliament. The then Chief Justice Wee Chong Jin had this to say in his judgment:—

“In my opinion the fact that the evidence showed that the acts done by the appellant may well have been commonplace acts which members of Parliament here ordinarily do for members of the public who seek their assistance is immaterial. The real question is, and on this the onus is on the appellant to prove the contrary, did the appellant corruptly accept the gratifications as a reward for the acts he had done. This is a question of fact and in my judgment there was ample evidence to support the trial judge’s finding that the appellant had failed, on a balance of probabilities, to prove that he had not accepted the gratifications corruptly. In my judgment, on the evidence and having regard to the findings of fact of the trial judge, the appellant has failed to show that he had legitimate reasons for accepting the gratifications set out in the first, second, third and fifth amended charges. One of the mischiefs aimed at by the Act was to prevent a public officer or public servant from accepting gifts in cash or in kind from a member of the public except in circumstances in which he will be able to show clearly that he has legitimate reasons for so doing”10 (Emphasis added)

In order to rebut the presumption that the amounts were received corruptly, Wee had to prove that he had legitimate reasons for such receipt.

Across the Straits, at about the same time, no less an important public servant than the Mentri Besar of Selangor was convicted of corruption

in the case of Datuk Haji Harun. In this case, the accused was found by the trial judge to have solicited $250,000 from the Hong Kong & Shanghai Bank on behalf of a political party in return for obtaining the approval of the State government in the construction of a building. The gratification was received in two tranches. First he received $25,000 at an airport and later the remaining $225,000 in his office. This formed the basis of three charges against him under the Malaysian PCA. In discussing what ‘corrupt’ meant in the context of the Malaysian PCA, 1961, Raja Azlan Shah FJ stated that:

“corrupt means ‘doing an act knowing that the act done is wrong, doing so with evil feelings and evil intentions’ (seeLim Kheng Kooi v R; [1957] MLJ 199) ‘purposely doing an act which the law forbids’ (see R v Smith) [1960] 1 All ER 256). ‘Corrupt’ is a question of intention. If...