THE NEXUS BETWEEN GRATIFICATION AND DUTY IN THE LAW OF CORRUPTION

• Date: 01 December 2000
• Published date: 01 December 2000
• Author: MICHAEL HOR

There are really two major issues in the law of corruption — whether there is a duty which is protected by the criminal law; and if so, whether the giving or acceptance of gratification sufficiently endangers fidelity to that duty. This article explores the second issue in the context of several interesting cases in recent years which have had to deal with fact situations which vary from the core corruption paradigm — gifts to sweeten the relationship; gifts for doing what one is duty bound to do anyway; gifts given innocently out of custom or with the consent of the principal. The article argues that while there are no easy answers to these questions, the position taken with respect to official corruption need not be the same as the one taken for non-official corruption.

1. The Core Corruption Paradigm

Elsewhere I tried to explore the problem of determining precisely which kinds of duty are protected by the criminal law of corruption.1 Unfortunately, our difficulties do not end there. Even when it is clear that the particular duty in jeopardy is protected, we still need to decide if the giving or receipt of the gratification endangers the duty sufficiently to implicate the criminal law. How strong must the gratification-duty nexus be before it becomes a crime? We start with what I shall call the core corruption paradigm — the easy case. The nexus is strongest where all of these exist:

1. (a) the giver intends to induce the taker to act contrary to the duty which the taker owes to someone else

2. (b) the taker receives the gift knowing of the giver’s intention

3. (c) the taker acts contrary to the dictates of his or her duty

I do not think that anyone will doubt that, where these three factors exist, it is corruption.2 When, however, there are variations to this core paradigm, the law has to decide if the situation should, variations notwithstanding, be within the reach of the criminal law. What if the

taker accepts the gift knowing of the corrupt intent of the giver, but does not act contrary to his or her duty — because he would have done it anyway without the bribe? What if the giver does not really intend to subvert the taker’s duty, but to keep up with competitors who have a habit of giving something to the taker? What if the taker does not actually know of the giver’s intention — because the giver does not make his intention clear? These are the kinds of situations which have given our courts some grief in recent years. Conceptually, there is no one right answer — it is a decision of policy. On one hand, it may be thought that the criminal law ought only to intervene when the gratification-duty nexus is strong; on the other hand it may be felt that the nexus, though weaker, is nonetheless sufficient for the invocation of the criminal law.

2. Section 9 of the Prevention of Corruption Act

The problem of the gratification-duty nexus is not new, and section 9 of the Prevention of Corruption Act3 was enacted to deal with some kinds of variation in the core corruption paradigm.4 It is unfortunate that little, if any, reference has been made to it in recent cases. Admittedly, section 9 does not deal with many of the particular variations which have arisen in recent cases. Also, as drafted, it applies only to agent-principal corruption under section 6. Yet it does yield a consistent policy which we may want to use as a starting point. I set out only the provision dealing with a taker accused of corruption (although there is, of course, a parallel provision5 targeting the giver accused of corruption):

Where in any proceedings against an agent … under section 6(a), it is proved

1. — that he corruptly accepted … any gratification,

2. — having reason to believe or suspect that the gratification was offered as an inducement or reward for his doing or forbearing to do any act or for showing or forbearing to show any favour or disfavour to any person in relation to his principal’s affairs or business,

he shall be guilty of an offence …notwithstanding

1. — that he did not have the power, right or opportunity to do so, show or forbear,

2. — that he accepted the gratification without intending to do so, show or forbear,

1. — that he did not in fact do, show or forbear, or

2. — that the act, favour or disfavour was not in relation to his principal’s affairs or business.

Admittedly, the task of interpreting this provision is not entirely free from difficulty. Nevertheless, I shall try to describe what I think is the effect and policy of the section. The discussion deals with a taker charged with corruption — the same points may also be made of the giver charged with corruption. The burden of the provision is that corruption is sufficiently made out if the accused taker had reason to believe or to suspect that the gift was offered as an inducement or reward for doing or not doing something in relation to his principal’s affairs.6 Almost every other variation of the core corruption paradigm is, according to the section, incapable of excusing the taker. It does not matter if the giver did not actually intend to induce or reward the taker — so long as that was what the taker believed. It does not even matter that the taker did not actually so believe — so long as he had reason to believe or suspect. It does not matter that there was no actual breach of duty — so long as the taker accepted the gift having reason to suspect that the giver intended to induce or reward him in relation to his principal’s affairs. It does not matter that the act concerned was not actually in relation to his principal’s affairs — so long as the taker had reason to suspect that the giver thought it was.

The first thing to notice is that section 9 seems to have decided, as a matter of policy, that the crime of corruption is committed although the situation is quite far from any actual breach of duty. Is there a sense to this? We need to look at it from the point of view of all the parties involved. If we focus on the taker of the bribe, he or she is guilty if the gift is accepted with the necessary belief or suspicion. Why should the taker be guilty if he or she does not actually act in breach of duty? There

is the fear of a potential breach of duty — the taker may not act in breach this time, but he or she may well do so in the future. The taker may not intend to breach a duty, or may not have the power to do the act sought this time — but he or she may well do so in the future. There is also the role the taker has in encouraging the giver to continue bribing — although this particular taker does not intend to breach his duty, his acceptance of the bribe encourages the briber to go on bribing, and one day he will find someone willing to act in breach of duty. Similarly, the giver is guilty if there was reason to believe that the taker was willing to breach his or her duty. Even if the taker was actually either not willing or not able to breach any duty on that particular occasion, the giver has attempted to induce a breach of duties — he or she may try again in the future. There is also the need to think of public perception. Although there may not be actually any breach, but it would be extremely difficult to persuade the public to accept that a particular official has accepted money knowing of the motive of the giver, but was still faithful to his or her duty. Public confidence is eroded whether or not there is an actual breach.

I have two more things to say about section 9. First, it seems to leave out section 5 (general) corruption. It could be argued that section 9 only applies to section 6 (agent-principal) corruption. I do not know why section 9 was so limited, but it would be curious indeed that there need not be an actual breach of duty for section 6, but there is a requirement of actual breach for section 5. Once the law has decided that a particular duty is worthy of protection by the criminal law, it should not matter that it is a duty owed by an agent to his principal or that it was a duty owed by some other means. Even if section 9 does not technically apply to section 5 (general) corruption, the court will still be left with nothing to work on except the word “corruptly” — it will be free to adopt the policy of section 9, if it wants to.7

The second point is that there is potentially a serious problem with the mens rea formula of section 9 — “having reason to believe or suspect”. It appears that the taker need not actually believe or suspect, so long as there was reason for belief or suspicion — in other words, it is negligence

standard. The taker is liable if a reasonable person would have formed the belief or suspicion. Corruption is a very serious and stigma-laden crime.8 The concept of negligent corruption is an uneasy one indeed from the point of view of punishment proportionate to culpability, and of fair labelling of offenders. The other problem is that even reasonable belief is not the minimum mens rea — it appears that reasonable suspicion will do. While the criterion of reasonable suspicion is not unknown,9 bearing in mind the severity of the punishment and the stigma of a conviction for corruption, suspicion (and more so, reasonable suspicion) is probably too low a level at which to pitch the mens rea. My preference is for the clear mens rea standard of actual knowledge or, at the very least, recklessness (often defined as knowledge of a substantial likelihood). For convenience I shall refer to the mens rea required by section 9 as “knowledge”.

It is my intention now to examine some of our recent cases on corruption. What I shall try to show is that at least part of the reason why they conflict with each other is the adoption by the court of differing conceptions of the required strength of the gratification-duty nexus.

3. Acts or Favours “in relation to the principal’s affairs”: Conceptions of Strong and Weak Gratification-Duty Nexus

PP v Tan Liang Ann 10 concerned a...