THE PROBLEM OF NON-OFFICIAL CORRUPTION

• Citation: (1999) 11 SAcLJ 393
• Published date: 01 December 1999
• Date: 01 December 1999
• Author: MICHAEL HOR

A provision unique to Singapore and Malaysia criminalises the corruption of “any person…in respect of any matter or transaction whatsoever”. This discussion hopes to describe the intractable difficulty experienced in a flood of recent decisions attempting to interpret this section, and advances the view that it is too vague and uncertain to be a satisfactory criminal norm.

The Paradigm of Official Corruption

The target of corrupt activity is duty.1 The purpose of the criminal law of corruption is to prohibit acts which encourage the holder of a duty to be disloyal to that duty. Traditionally, the criminal law concerned itself solely with the corruption of official duties — duties owed by public servants to the government and by others exercising some kind of public duty. That was the case in both the common law of England2 and in the Indian and Straits Settlement Penal Codes.3 Conduct tending to corrupt non-official duties was simply not considered criminal. The aggrieved parties had recourse to whatever the civil law will give them.

Things changed in the earlier part of this century. Following the lead of legislation in England,4 other commonwealth jurisdictions, including Singapore and Malaysia, enacted laws which extended the criminal law

to protect certain defined non-official duties — the duty owed by an agent to his or her principal, by the employee to the employer, by the trustee to the beneficiary.5 In Singapore, this is now to be found in section 6 of the Prevention of Corruption Act. 6 One may debate the merits of this move, but the Legislature has decided as a matter of policy that the specified non-official duties were in need of protection by the law of corruption.

There is one other crime of corruption, and it finds its source in section 5(i) of the PCA.7 One is immediately struck by the breadth of this provision:

Any person who shall…corruptly solicit or receive…or corruptly give, promise or offer to any person…any gratification as an inducement to or reward for, or otherwise on account of any person doing or forbearing to do anything in respect of any matter or transaction whatsoever…

Here, there is no attempt to define, specify or even describe the kinds of duties which are potentially protected by the criminal law. Of course, one solution is to read it literally to mean any duty whatsoever. Indeed there is language in one recent judgement that this is how it should be interpreted.8 A moment’s reflection will show that this interpretation is unlikely, and there is language in other recent judgements that our courts realise this.9 One example will suffice. Most law schools give prizes to its students for doing well in their studies. Students are under a duty (either to their parents or to society) to do their best. The law school giving the prize is rewarding the student for doing what he is duty bound to do anyway. This may well have the effect of corrupting the student’s duty to do well (independently of the prize). A literal interpretation of this provision will compel us to conclude that the law school has engaged in criminal corruption, and those responsible punishable with 5 years imprisonment and $100 000 fine. The same reasoning would apply equally to any prize or reward given to any student. This result is unlikely to have been intended by the Legislature. It would be a gross over-extension of the criminal law if every conceivable legal, contractual and ethical duty were held to be within the meaning of the section. Yet the existence

of section 5(i) must mean that at least some non-official duties not covered by section 6 (agent-principal corruption) are to be protected by the criminal law — otherwise it would mean nothing at all. The problem is this — how is the line to be drawn between non-official duties protected by the criminal law under section 5(i) and non-official duties not within the purview of that section.

Two matters ought to be addressed at this point. First, it can be said (and indeed was said in one recent judgement) that the exercise of line-drawing is nothing remarkable to a lawyer.10 No statute can ever be drafted with such crystal clarity that leaves nothing in doubt. Indeed if that were at all possible many lawyers and judges will be out of a job. Yet, although a certain degree of uncertainty is unavoidable in many criminal statutes, there comes a point when the magnitude of the uncertainty becomes intolerable. If the Legislature were to enact a provision making it a crime to “do any evil” without defining what “evil” means, the uncertainty would be unacceptable to any civilised society. We would not know how to plan our lives so as not to violate this provision. Law enforcement authorities will be vested with an impossibly wide discretion to pick and choose who to target.

This brings us to the second point — it may be said that the Public Prosecutor in his or her wisdom can be trusted to enforce the provision only in deserving cases. I have no doubt that this is what the Public Prosecutor indeed tries to do. But on what possible basis can even the Public Prosecutor distinguish between protected and unprotected duties? If it is too uncertain an exercise for the Judges, so too must it be for the Public Prosecutor. We still will not be able to plan our lives without fear of infringing this law every time we offer an inducement or reward to anyone in relation to every conceivable duty. Police and prosecutorial enforcement will be incurably arbitrary.

We shall return in the concluding part of this discussion to the question of measuring this provision according to the requirements of “due process” or (in language more familiar to us) “fundamental rules of natural justice”. We now turn to the cluster of recent decisions which have attempted valiantly to find a satisfactory way of interpreting section 5(i). It perhaps bears mention that reported cases interpreting this section were nonexistent before 1995, possibly because the prosecution has always been aware of the potentially grave uncertainties involved with its interpretation. In Malaysia, except for one notable exception,11 the situation was and still is the same. Since then in Singapore, however,

there has been an uninterrupted flow of decisions from the High Court on appeal from the subordinate courts. For some as yet undeclared reason, the prosecution started using section 5(i). One may only guess that it was because the section was potentially broad enough to fill in conveniently perceived loopholes in other legislation. Also, perceived evidential and sentencing “advantages” cannot be ruled out.

Duties Arising from the Criminal Law

Kannan 12 was one of the earliest of this set of cases and it concerned football fixing — the accused was alleged to have been involved in an attempt to pay players to manipulate the goal margins, apparently for the purpose of cheating in illegal gambling operations. The accused was charged under section 5(i). The court, in upholding the conviction, tried to explain the meaning of the section thus:13

If A gives $5000 to B to assault C, it would have been quite dear that, without more, the $5000 was neither corruptly given by A nor corruptly received by B…On the other hand, the $5000 here was not just for an illegal purpose. The $5000 was a reward for offering or arranging to offer a bribe to David Lee (the goal-keeper, for letting in goals). The offer of the bribe was not just illegal but it is also undoubtedly corrupt…In my view, a line must be drawn between a reward for doing something merely illegal, and a reward for doing something not just illegal but is in itself corrupt…This is, of course, a very fine distinction. However there comes a point when fine distinction (sic) must be drawn and such distinctions are not unknown even in the criminal law.

The judgement is commendable in that it rejects the notion that every conceivable duty is protected by the criminal law of corruption. It is also to be applauded for recognising how difficult it is to make a distinction between the kinds of duty which are covered by the section and those which are not. Yet the court does not tell us how the distinction is to be drawn, and gives no reason why it thinks the assault hypothetical is not corruption, but the football fixing situation is. Analytically, both are very similar. In the assault hypothetical, B owes a duty arising from the criminal law not to assault C. A encourages the B to breach that duty by paying him money to do so. In the football situation, the goal-keeper owes a duty (perhaps arising from contract) to play his best. The accused encourages the goal-keeper to breach this duty by paying him to do so. The court seems to have implicitly decided that compromising the duty

of the goalkeeper is corruption, but compromising the duty of B is not. There is nothing “clear” or “undoubted” about this result. Nor does the word “corrupt” speak for itself. What reason could there be for protecting one duty and not the other? One might have thought that the duty not to assault, arising as it does from the criminal law, should be more deserving of protection than a duty arising merely from contract. Lawyers have to deal with the occasional “fine distinction”, but a tangible distinction there must be.

It might be argued that, looking at it from a broader “policy” perspective, the participants in the assault hypothetical can be charged with voluntarily causing hurt and abetment thereof, but the goalkeeper and his hidden paymaster are untouched by other laws — so the law of corruption must rush in to fill the gap. There are severe problems with this line of argument. First, it yields no satisfactory dividing-line. The position simply cannot be that interference with duties not otherwise prohibited will be prohibited by the law of corruption — the untenable result is that duties arising from the criminal law are not protected (by the law of...