Need to maintain trust in Singapore's system of criminal justice

SINGAPORE'S criminal laws and its administration of criminal justice have been brought into sharp focus these past weeks. Recent matters such as the Keppel Offshore and Marine (KOM) corruption scandal, the City Harvest Church (CHC) ex-leaders' conviction for criminal breach of trust (CBT), and the renewal of the Criminal Law (Temporary Provisions) Act (CLTPA) highlight the need for our criminal laws and the administration of criminal justice, not only to be reviewed regularly, but also more frequently.

They also point to the imperative to develop and evolve our criminal laws and the administration of criminal justice that is relevant to our social context and the rapidly changing crime situation.

In the long-drawn CHC case, after a careful study of Section 409 of the Penal Code (CBT by an agent), the Court of Appeal ruled that "agent" referred to a professional agent who offered commercial services, which the six CHC ex-leaders were not.

The apex court emphasised that it was not up to it to judicially amend the language of the provision as it was a "legislative function that belongs exclusively to Parliament". The court added that a "wide-ranging policy review" of the legislative provisions on CBT was "essential" and "long overdue". Courts have no business acting as "mini legislatures".

Earlier, in July 2017, the Law Ministry proposed some 50 changes to the Criminal Procedure Code (CPC) and Evidence Act for public consultation.

PROPOSED CHANGES

Last month, the government announced that it would propose changes to the CPC to allow for the use of deferred prosecution agreements (DPAs). DPAs came under the spotlight following news of KOM's corruption scandal in Brazil.

Under the DPA reached between KOM and the US Department of Justice, KOM agreed to pay fines amounting to US$422 million as part of a global resolution arrangement. The massive fine included a 25 per cent discount given by the US authorities because of KOM's substantial cooperation with the investigation and its willingness to take extensive remedial measures.

In contrast, Singapore's Prevention of Corruption Act provides for only S$100,000 fine per charge. This is grossly inadequate today given that bribe payments, especially in cases of grand corruption or corporate sector corruption, can significantly dwarf the fines. In KOM's case, it paid bribes of US$55 million between 2001 and 2014 through an intermediary to a Brazilian state-owned oil company and then governing party officials to win contracts.

DPAs, while novel in Singapore and Asia, have been used in the US for more than two decades, in the UK since 2014, and in France since last year. DPAs are intended to encourage corporations to cooperate with law enforcers. The framework typically allows the public prosecutor to dismiss the charges a company faces, provided the company agrees to certain undertakings. They are usually accompanied by a public admission of facts relating to a case and a financial penalty.

The adroit use of DPAs can overcome the limitations of existing laws. However, DPAs cannot be an alternative to legislating tougher laws. A cardinal principle is that criminal laws cannot operate retrospectively. For example, under Singapore's Prevention of Corruption Act, the fine is S$100,000 per charge. A DPA is a useful enforcement tool in such criminal cases. The sanctions can be calibrated to meet the true nature of the corporate wrongdoing.

In my view, DPAs can accomplish as much as, if not more than, a criminal conviction. Furthermore, a DPA can also help "rehabilitate" a company by requiring compliance programmes, remedial steps or the imposition of a monitor. The DPA can also require a company to cooperate with ongoing investigations, particularly in investigations of individuals.

Such compliance programmes and cooperation can also be implemented worldwide, not just in Singapore, and impose a periodic reporting regime to a court that oversees the DPA. Overall, DPAs avoid a cookie-cutter approach in dealing with corporate malfeasance and can help set a company on the right path. While prosecutors prepare the DPA, the courts ensure that it is in the public interest and that it is imposed on a company appropriately.

Any robust DPA regime will have judicial oversight as a cornerstone. Singapore's proposed DPA regime envisages the courts providing the requisite check and balance to the prosecutors' wide discretionary power. This ensures that DPAs are not lenient on companies and not used in lieu of prosecution of culpable individuals who should also bear the brunt of the law. The key is ensuring strict compliance of the DPAs.

Where a breach of a DPA has occurred, the prosecution can impose an additional monetary penalty, or additional compliance, or remedial measures. They can also pursue charges based on the conduct covered by the agreement itself - the very conduct that the company had tried to resolve through the DPA. Put simply, DPAs cannot be ignored or followed partially. There are criminal consequences for a breach of the DPA.

Recently, Parliament renewed the CLTPA for the 14th time since the colonial authorities first introduced it in 1955 to impose law and order during a tumultuous period in Singapore's history. Designed as a temporary law, the executive has to go before Parliament every five years to renew the CLTPA.

With the relatively safe environment here, some Singaporeans - especially those born post-independence - may also find it hard to comprehend why such a tough law is needed.

There is merit in having a law that ultimately seeks to keep Singapore safe from hardcore criminal elements. Long and much feared by criminals, the CLTPA provides for the power to detain individuals without trial for renewable one-year periods. This has been an important legal tool in the fight against violent criminal activity such as secret societies, drug trafficking, and loan-sharking. Its regular renewal speaks of the government's determination to have the full range of legal powers to keep hardcore criminal activity at bay.

SEVERE POWERS

At the same time, the Act's severe powers raise legitimate concerns about whether it is necessary today and whether there can be even stronger safeguards against its misuse?

It is unlikely that the dangers that the CLTPA seeks to address would be eliminated in the next five to 10 years. And with evolving threats, and the government's longstanding preference for a plethora of calibrated law and order measures, it will be anything but temporary. Humans are not angels. No society can realistically hope to eliminate all crime. Societies can only seek to regulate the crime situation to ensure that it stays within acceptable limits. It is for each society to decide what those limits are.

However, the CLTPA cannot be allowed to become a legal crutch. Each time it comes up for renewal, it should prick at our collective conscience. After all, the law does not bring alleged perpetrators of serious crime to justice. It is a cardinal rule of law principle that no person should be imprisoned without an open trial.

Robust explanation and justification are needed each time the government seeks to use or extend the lifespan of the CLTPA. For now, there is adequate trust that severe laws, such as the CLTPA, have been properly administered all these years.

While a low crime rate is of utmost importance, how we go about attaining that imperative matters immensely. Our approach to crime control cannot be a manifestly utilitarian one of the ends justifying the means. Trust and confidence that the system works well and is fair and just to all stakeholders are non-negotiable and have to be worked on assiduously.

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