Public Prosecutor v S Iswaran [2024] SGHC 251

Trust and confidence in public institutions are the bedrock of effective governance, which can all too easily be undermined by the appearance that an individual public servant has fallen below the standards of integrity and accountability. This could in turn have a detrimental impact on the discharge of the Government’s functions. The foregoing sets the background to the present case and provides an opportunity to examine two important issues and provide clarity in that regard.

First, what is the appropriate sentencing approach where a public servant commits the offence of obtaining a valuable thing from a person concerned in proceedings or business transacted by that public servant or having a connection with that public servant’s official functions? The gravamen of an offence under s 165 of the Penal Code (Cap 224, 2008 Rev Ed) or Penal Code 1871 (2020 Rev Ed) is the injury to the trust in and integrity of public institutions which results where public servants accept or obtain pecuniary benefits from a person or any associate in circumstances where the interests of the person or associate call into question that public servant’s integrity and loyalty. These interests may, for example, be interests relating to the outcomes of legal proceedings or interests in business transactions with public institutions.

Second, what is the appropriate reduction in sentence, applying the Sentencing Advisory Panel’s Guidelines on Reduction in Sentences for Guilty Pleas (“SAP PG Guidelines”), where an accused pleads guilty to multiple charges following the amendment of a subset of his charges after the completion of the criminal case disclosure procedures but before the commencement of the trial?

Introduction

The accused, Mr S Iswaran, was formerly a Minister of the Government of Singapore. From 2015 to 2022, as a public servant in that capacity, he obtained for himself various valuable things without consideration from Mr Ong Beng Seng (“OBS”) and Mr Lum Kok Seng (“LKS”). He did so despite knowing that they were concerned in business transacted which had a connection with his official functions.

The accused pleaded guilty to one charge under s 165 of the Penal Code (Cap 224, 2008 Rev Ed), three charges under s 165 of the Penal Code 1871 (2020 Rev Ed) and one charge under s 204A(a) of the Penal Code 1871 (2020 Rev Ed). For convenience, I shall refer to the Penal Code (Cap 224, 2008 Rev Ed) and the Penal Code 1871 (2020 Rev Ed) interchangeably as the “Penal Code” save where it is necessary to specify the applicable version thereof. The accused also admitted to 30 other charges under s 165 of the Penal Code and gave his consent for these charges to be taken into consideration for sentencing. In this judgment, I determine the appropriate individual sentences and aggregate sentence to be imposed on the accused.

The charges

I begin by providing an overview of the 35 charges, comprising five proceeded charges and 30 charges taken into consideration. These may be broadly categorised as follows:

(a) The 1st to 26th charges, under s 165 of the Penal Code, pertained to the accused having obtained for himself various valuable things without consideration from OBS, knowing that OBS was concerned in business transacted which had a connection with the accused’s official functions as Minister and Chairman of the F1 Steering Committee. The approximate total value of the valuable things obtained from OBS was S$384,340.98. Of these charges, the 6th and 26th charges were proceeded with while the remaining charges were taken into consideration.

(b) The 27th charge, under s 204A(a) of the Penal Code, pertained to the accused having made payment for a business class flight ticket from Doha to Singapore previously obtained from OBS (and forming part of the subject of the 26th charge), knowing that this act was likely to obstruct the course of justice. The 27th charge was proceeded with.

(c) The 28th to 35th charges, under s 165 of the Penal Code, pertained to the accused having obtained for himself various valuable things without consideration from LKS, knowing that LKS was concerned in business transacted which had a connection with the accused’s official functions as Minister for Transport. The approximate total value of the valuable things obtained from LKS was S$18,956.94. Of these charges, the 29th and 33rd charges were proceeded with while the remaining charges were taken into consideration.

Further details concerning the charges may be found in the Annexes to this judgment. Annex 1 reproduces the 35 charges in full while Annex 2 sets out a schedule of offences.

Undisputed facts

The accused admitted to the Statement of Facts without qualification. The salient facts stated in the Statement of Facts are highlighted at [9]–[46] below.

The accused’s positions and portfolios as a public servant

The accused was at all material times a public servant under s 21 of the Penal Code in his capacity as a Minister of the Government.

The accused was a Member of Parliament (“MP”) from 1997 to 2024. He held the following positions or portfolios in the Ministry of Trade and Industry (the “MTI”) from 2006 to 2024:

From 1 October 2015 to 30 April 2018, as the Minister (Industry) in the MTI, the accused was responsible for various departments and statutory boards including the Singapore Tourism Board (the “STB”).

The accused also held the following positions in other ministries from 2009 to 2024:

From 15 May 2021 to 17 January 2024, as the Minister for Transport, the accused was responsible for the Land Transport Authority of Singapore (the “LTA”).

In addition, an inter-agency committee known as the F1 Steering Committee was established by the Government in 2007 to oversee the Singapore Formula 1 Grand Prix (the “Singapore F1”) as a national project. The F1 Steering Committee was tasked with resolving high-level policy and implementation issues and synergising efforts between government agencies and the Singapore F1 race promoter, Singapore GP Pte Ltd (“SGP”). From 2007 to 2018 and 2021 to 2023, the accused was Chairman of the F1 Steering Committee and the Minister responsible for overseeing the Singapore F1 as a national project. From 2018 to 2021, during the periods when he was not its Chairman, the accused was the advisor to the F1 Steering Committee.

The accused resigned from office on 17 January 2024.

Facts relevant to the 6th, 26th and 27th charges

Background facts

SGP was incorporated in 2007 under the laws of Singapore. At all material times, OBS was SGP’s majority shareholder, being the beneficial owner of over 90% of the shares in SGP:

(a) 90% of SGP’s shares were owned by Reef Enterprises Pte Ltd. This was a wholly owned subsidiary of Reef Holdings Pte Ltd which, in turn, was wholly owned by OBS.

(b) 10% of SGP’s shares were owned by Komoco Holdings Pte Ltd of which OBS was the majority shareholder.

SGP was responsible for organising and promoting the annual Singapore F1 race from 2008 to 2023, save for 2020 and 2021 when it was not held due to the COVID-19 pandemic.

From 2012 to 2022, the STB and SGP entered into the following three contracts for the promotion, hosting and staging of the annual Singapore F1 race (collectively, the “Singapore F1 Contracts”):

(a) the 2012 Restatement of the Facilitation Agreement of 22 September 2012, entered into on 22 September 2012 (the “2012 Facilitation Agreement”);

(b) the Facilitation Agreement for the Singapore Grand Prix 2018 to 2021, entered into on 15 September 2017; and

(c) the Facilitation Agreement for the Singapore Grand Prix 2022 to 2028, entered into on 27 January 2022 (the “2022 Facilitation Agreement”).

The Singapore F1 Contracts set out the STB’s and SGP’s rights and obligations in relation to the Singapore F1. Among other things, they required SGP to set aside a certain number of complimentary tickets to the Singapore F1 race to be distributed free of charge.

Facts relating to the 6th charge

Sometime in or before September 2017, the Deputy Chairman of SGP, Colin Syn (“Colin”), asked the accused how many tickets he would require for the Singapore F1 2017 race. Colin did so pursuant to an earlier standing instruction from OBS to him to allocate complimentary tickets to the Singapore F1 race to the accused. The accused informed Colin that he would require ten “Green Room” tickets to the Singapore F1 2017 race.

The Green Room was a hospitality suite which offered guests a premium experience to enjoy the Singapore F1 race. Each Green Room ticket included access to a fully air-conditioned suite with attached outdoor seating as well as complimentary food and alcoholic beverages.

Colin obtained approval for the ten Green Room tickets, which came from SGP’s contractual allocation of complimentary tickets to the Singapore F1 race (see [16] above). The allocation of these complimentary tickets was controlled by OBS.

Sometime in September 2017, the ten Green Room tickets were delivered to the accused. The value of each Green Room ticket was S$4,226.50 and the total value of the ten Green Room tickets was S$42,265. The accused distributed these tickets to his family, friends and others to attend the Singapore F1 2017 race.

The accused did not pay for the ten Green Room tickets. He also did not declare to the Government that he had obtained them from OBS.

Further, the accused knew at the time that OBS was concerned in the performance of the 2012 Facilitation Agreement, which had a connection with the accused’s official functions as Minister and Chairman of the F1 Steering Committee.

Facts relating to the 26th charge

On 10 December 2022, the accused travelled from Singapore to Doha, Qatar on OBS’s private jet (the “Singapore-Doha Flight”). The approximate value of the Singapore-Doha Flight was US$7,700 or S$10,410.40.

Upon reaching Doha, the accused checked into Four Seasons Hotel Doha, where he stayed for one night (the “Doha Hotel Stay”). The value of the Doha Hotel Stay was S$4,737.63. This was paid for by SGP on OBS’s instructions.

On 11 December 2022, the accused travelled from Doha to Singapore on a business class flight (the “Doha-Singapore Flight”). The value of the Doha-Singapore Flight was S$5,700. This was likewise paid for by SGP on OBS’s instructions.

The accused did not pay for the Singapore-Doha Flight or Doha Hotel Stay. He likewise did not pay for the Doha-Singapore Flight before or during the Doha Trip. However, the accused subsequently made payment to SGP on or around 25 May 2023 for the value of the Doha-Singapore Flight, which payment formed the subject of the 27th charge (see [33] below). The accused also did not declare to the Government that he had obtained the Singapore-Doha Flight, Doha Hotel Stay or Doha-Singapore Flight from OBS.

Further, the accused knew at the time that OBS was concerned in the performance of the 2022 Facilitation Agreement, which had a connection with the accused’s official functions as Minister and Chairman of the F1 Steering Committee.

Facts relating to the 27th charge

On or around 17 May 2023, the Corrupt Practices Investigation Bureau (the “CPIB”) was investigating a separate matter relating to OBS’s associates when it came across the flight manifest of the Singapore-Doha Flight. On 18 May 2023, OBS was informed by his associates that CPIB had seized the flight manifest of the Singapore-Doha Flight and questioned them about the Doha Trip.

Sometime between 18 and 23 May 2023, OBS spoke to the accused over the phone. OBS informed the accused that the CPIB had seized the flight manifest of the Singapore-Doha Flight in the course of its investigations into a separate matter. The accused acknowledged this.

The following day, OBS spoke again to the accused over the phone. The accused asked OBS to have SGP bill him for the expenses related to the Doha Trip, including the Doha-Singapore Flight. OBS agreed to this and asked a director of SGP, Mok Chee Liang (“Mok”), to arrange for payment by the accused.

On 24 May 2023, Mok emailed the accused’s personal assistant, Ivy Chan, with an invoice for the Doha-Singapore Flight.

On or around 25 May 2023, the accused made payment for the Doha-Singapore Flight by issuing a cheque to SGP for S$5,700. This was an act with a tendency to obstruct the course of justice because it made it less likely that the accused would be investigated by the CPIB in relation to the Doha Trip. Further, the accused knew at the time that this act was likely to obstruct the course of justice.

Facts relevant to the 29th and 33rd charges

Background facts

Lum Chang Building Contractors Pte Ltd (“LCBC”) was incorporated in 1970 under the laws of Singapore. As of 2021 and 2022, LCBC was wholly owned by Lum Chang Asia Pacific Pte Ltd which, in turn, was wholly owned by Lum Chang Holdings Limited. LKS was a director of LCBC and the managing director of Lum Chang Holdings Limited.

In 2016, the LTA and LCBC entered into the T315 contract for “Addition and Alteration Works to Existing Tanah Merah Station and Existing Viaducts” (the “T315 Contract”). The T315 Contract had a value of S$325m.

Facts relating to the 29th charge

Sometime in late 2021, the accused asked LKS to help him source for whisky and red wine. On 14 November 2021, the accused sent a screenshot of a bottle of Gordon & MacPhail Caol Ila whisky to LKS via WhatsApp message, asking LKS to check with his regular supplier what he thought about it. LKS replied that he “will check with [his] supplier and revert”.

On 7 January 2022, LKS informed the accused that he had purchased two bottles of the Gordon & MacPhail Caol Ila whisky and would send these to the accused along with a batch of red wine. The accused acknowledged this and thanked LKS.

Sometime in January 2022, LKS arranged for the following to be delivered to the accused’s residence (collectively, the “14 Whisky and Wine Bottles”):

(a) two bottles of Gordon & MacPhail Caol Ila whisky with an approximate value of S$542.23;

(b) three bottles of L’Evangile 2014 wine with a value of S$394.20;

(c) three bottles of Pauillac De Latour 2015 wine with a value of S$186.31;

(d) three bottles of Albert Bichot Domaine du Clos Frantin Grands Echezeaux Grand Cru 2015 wine with a value of S$1,177.21; and

(e) three bottles of Pichon Lalande 2010 wine with a value of S$955.80.

The accused did not pay for the 14 Whisky and Wine Bottles. He also did not declare to the Government that he had obtained them from LKS.

Further, the accused knew at the time that LKS was concerned in the performance of the T315 Contract, which had a connection with the accused’s official functions as Minister for Transport.

Facts relating to the 33rd charge

On 7 May 2022, LKS and his family received an invitation to the accused’s 60th birthday celebration on 18 June 2022. Sometime before 13 June 2022, LKS suggested to the accused that he would buy a foldable bicycle for the accused’s birthday.

Sometime in June 2022, the accused obtained a Brompton T-Line bicycle with a value of S$7,907.50 from LKS.

The accused did not pay for the Brompton T-Line bicycle. He also did not declare to the Government that he had obtained it from LKS.

Further, the accused knew at the time that LKS was concerned in the performance of the T315 Contract, which had a connection with the accused’s official functions as Minister for Transport.

Seizure of properties from the accused

In the course of its investigations, the CPIB seized the following items amongst others from the accused:

(a) four bottles of Gordon & MacPhail Caol Ila whisky with an approximate value of S$1,084.46 (forming the subject of the 28th charge, which was taken into consideration);

(b) three bottles of Albert Bichot Domaine du Clos Frantin Grands Echezeaux Grand Cru 2015 wine with a value of S$1,177.21 (forming part of the subject of the proceeded 29th charge);

(c) three bottles of Pichon Lalande 2010 wine with a value of S$955.80 (forming part of the subject of the proceeded 29th charge);

(d) a TaylorMade golf driver with an approximate value of S$749 (forming the subject of the 30th charge, which was taken into consideration);

(e) nine Honma Beres BE-08 golf clubs with a value of S$4,420 (forming the subject of the 32nd charge, which was taken into consideration);

(f) a Brompton T-Line bicycle with a value of S$7,907.50 (forming the subject of the proceeded 33rd charge);

(g) two bottles of M&H Elements Sherry Cask whisky with a value of S$198 (forming the subject of the 34th charge, which was taken into consideration); and

(h) a Scotty Cameron Phantom golf putter with an approximate value of S$600, a golf chipper with the words “Wilson Harmonized Chipper” with an approximate value of S$100 and a golf chipper with the words “ChipR” and “Ping” with an approximate value of S$100 (forming the subject of the 35th charge, which was taken into consideration).

The accused agreed for these items to be forfeited to the State.

Disgorgement by the accused of his benefits

On 23 September 2024, the accused also fully disgorged to the Accountant-General his financial gain from his offences under s 165 of the Penal Code, including those underlying the charges taken into consideration, in the amount of S$380,305.95. This excluded the value of the items seized by the CPIB (see [45] above) as well as the value of the Doha-Singapore Flight for which the accused had already made payment to SGP (see [33] above).

The accused had earlier voluntarily returned all monies that he had received by way of salary as a Minister and allowances as an MP from the commencement of the CPIB’s investigations in July 2023. In a letter to Prime Minister Lee Hsien Loong (“PM Lee”) dated 17 January 2024, the accused claimed that he was doing so because he “cannot in all good conscience benefit” from the monies when he was unable, on account of the CPIB’s investigations, to discharge his duties. He further stated that “[t]his is the right thing to do for Singapore and is in keeping with the Government’s high standards of integrity”.

Procedural history

The accused initially claimed trial to the charges against him. It is important to mention at this juncture that the 25th and 26th charges were initially, and throughout most of the proceedings, framed under s 6(a) read with s 7 of the Prevention of Corruption Act 1960 (2020 Rev Ed) (the “PCA”). In their original form, the 25th and 26th charges alleged that the accused had corruptly obtained gratification from OBS as an inducement for advancing OBS’s business interests in matters relating to the 2022 Facilitation Agreement and, additionally in the case of the 26th charge, a proposal for a contract with the STB to establish the ABBA Voyage virtual concert in Singapore.

The Prosecution intended to try the charges involving LKS (ie, the 28th to 35th charges) separately from and before the charges involving OBS (ie, the 1st to 27th charges). The accused applied in HC/CM 16/2024 for a joinder of all 35 charges under ss 133 and 134 of the Criminal Procedure Code 2010 (2020 Rev Ed) (the “CPC”). I heard and allowed this application: see S Iswaran v Public Prosecutor [2024] 4 SLR 965.

Thereafter, the matter proceeded to the criminal case disclosure stage. The Prosecution filed and served the Case for the Prosecution in accordance with s 213(1) of the CPC. At a subsequent criminal case disclosure conference, the accused applied to an assistant registrar (the “AR”) for an order requiring the Prosecution to supplement the Case for the Prosecution with conditioned statements under s 264 of the CPC for every witness whom it intended to call at the trial. The AR dismissed the application. Dissatisfied, the accused brought an application under s 404 of the CPC in HC/CR 12/2024 for revision of the AR’s decision. I heard and dismissed this application: see S Iswaran v Public Prosecutor [2024] 4 SLR 1624. Dissatisfied again, the accused applied under s 397(1) of the CPC in CA/CM 32/2024 for permission to refer two questions of law to the Court of Appeal. This application was similarly dismissed by the Court of Appeal: see S Iswaran v Public Prosecutor [2024] SGCA 35. Subsequently, the Defence elected not to file the Case for the Defence.

Following the conclusion of the criminal case disclosure procedures, the Prosecution agreed, acceding to representations sent by the Defence, to amend the 25th and 26th charges from charges under s 6(a) read with s 7 of the PCA to charges under s 165 of the Penal Code. After these charges were duly amended, the accused pleaded guilty to the 6th, 26th, 27th, 29th and 33rd charges. He also admitted to the remaining charges and gave his consent for them to be taken into consideration for sentencing.

The parties’ positions on sentence

The parties take the following sentencing positions:

The Prosecution’s position

In relation to the charges under s 165 of the Penal Code (ie, the 6th, 26th, 29th and 33rd charges), the Prosecution submits that the custodial threshold has clearly been crossed having regard to the following considerations:

(a) The accused was a Minister at the material time. This was the highest level of executive office in the Government. His offences had a significant impact on the Government’s hard-earned reputation for integrity and honesty, especially in view of his considerable seniority and standing as a Minister (of 12 years prior to his resignation).

(b) The accused was not a mere passive acceptor of the gifts but played a more active role in obtaining them, leveraging on his position as a public servant in doing so.

(c) The business transactions in which OBS and LKS were concerned were directly connected to the accused’s official functions.

(d) These business transactions were of significant interest and value.

(e) The accused gained personally from the offences in obtaining all the gifts for himself, even if he then went on to distribute some of these to others.

(f) The 30 other charges under s 165 of the Penal Code which were taken into consideration showed that the accused’s offending was part of a pattern of behaviour.

In relation to the 6th and 26th charges, the Prosecution submits that the accused undermined the independence of his position as Chairman of the F1 Steering Committee and compromised his position as the most senior Government representative negotiating with SGP on F1-related matters. However, the Prosecution also concedes, citing a press statement by the MTI dated 18 January 2024, that there is presently no evidence to suggest that the Singapore F1 Contracts were structured to the disadvantage of the Government. The Prosecution seeks a slightly lower sentence for the 26th charge as compared to the 6th charge having regard to the lower value of the valuable things obtained.

In relation to the 29th and 33rd charges, the Prosecution acknowledges that the accused did not intervene in any decisions relating to the T315 Contract in favour of LCBC. Nonetheless, the Prosecution submits that such conduct could, if allowed to continue, have resulted in damage to the public interest. It emphasises the significant value of the T315 Contract. Taking reference from its sentencing position for the 6th and 26th charges, the Prosecution seeks a lower sentence for the 29th and 33rd charges having regard to the lower value of the valuable things and the more attenuated business relationship between the accused and LCBC.

With respect to the 27th charge under s 204A(a) of the Penal Code, the Prosecution highlights that the investigations obstructed were serious in nature. The Prosecution further submits that it is not appreciably less aggravating that the accused did not intend to obstruct the course of justice but merely knew that his act was likely to have this outcome. This is because the offence could potentially have led the CPIB to decide, erroneously, not to commence investigations against him. The Prosecution, in arriving at its proposed sentencing position, considers that the accused’s actions were more in the vein of obscuring the true facts than destroying evidence.

In relation to the global sentence, the Prosecution submits that the sentences for the 6th, 27th and 29th charges should be ordered to run consecutively for the following reasons:

(a) The 27th charge (under s 204A(a) of the Penal Code) concerned a different legal interest from the other charges (under s 165 of the Penal Code). The former represented an offence against the administration of justice through interference with criminal investigations while the latter represented a violation of the interest in a public service that advances the Government’s interests effectively and maintains the public’s trust.

(b) The 6th and 26th charges on the one hand and the 29th and 33rd charges on the other arose from two unrelated factual contexts, involving different givers, different governmental business and valuable things of different kinds.

(c) As between the 6th and 26th charges, ordering the sentence for the 6th charge to run consecutively would give “fuller expression to the timeframe and nature” of the accused’s offences under s 165 of the Penal Code. This is because the offence underlying the 6th charge occurred earlier and involved the highest-value gifts amongst the proceeded charges. The Singapore F1 tickets forming the subject of the 6th charge also formed the subject of seven other charges which were taken into consideration, and these tickets constituted the largest proportion of the total value of the gifts received by the accused.

The Prosecution also submits that the ensuing aggregate sentence of seven months’ imprisonment is commensurate with the totality of the accused’s offending.

The Prosecution submits that limited mitigating weight should be given to the accused’s disgorgement of his financial gain because it was made late in the day and cannot undo the damage done to the public interest. As for the accused’s plea of guilt, applying the SAP PG Guidelines, the Prosecution submits that the accused is entitled to a discount of no more than 30% for the 26th charge, which was amended, and a discount of no more than 10% for the remaining charges. Thus, in totality, the Prosecution submits that a global sentence of six to seven months’ imprisonment is appropriate.

The Defence’s position

In relation to the charges under s 165 of the Penal Code (ie, the 6th, 26th, 29th and 33rd charges), the Defence submits that the offences occasioned no or minimal harm and that the accused’s level of culpability was low. In respect of the level of harm, the Defence submits that no loss was caused to any third parties. In particular, OBS and LKS did not suffer any loss because they had given the valuable things to the accused on their own accord. In respect of the level of culpability, the Defence submits that the offences did not involve any planning, premeditation or sophistication. The valuable things were also obtained by the accused from OBS and LKS against the backdrop of existing friendships. Further, the accused committed the offences without any ill intent or motive. He was simply ignorant of the unlawfulness of his conduct. There was also no abuse by the accused of his position.

In relation to the 27th charge under s 204A(a) of the Penal Code, the Defence highlights that the accused did not intend to obstruct the course of justice and that the offence was not premeditated or persistent.

Turning to the offender-specific factors, the Defence submits that there are no aggravating factors warranting an uplift to the sentences to be imposed. On the contrary, significant mitigating weight should be placed on: (a) the accused’s plea of guilty; (b) the accused’s public service and contributions to Singapore; and (c) the accused’s voluntary disgorgement of his benefits. Specifically, in respect of his plea of guilty, the Defence submits that the accused is entitled under the SAP PG Guidelines to a sentencing discount of up to 30% for all the charges and should be awarded this maximum discount. The accused had initially elected to claim trial only because the 25th and 26th charges, which were originally framed under s 6(a) read with s 7 of the PCA and were baseless, had coloured the overall case against him. However, following the Prosecution’s amendment of the 25th and 26th charges, the accused had pleaded guilty at the earliest available opportunity.

As for the global sentence, the Defence’s position is that if the court considers it appropriate to order three imprisonment terms to run consecutively, it agrees with the Prosecution that the sentences for the 6th, 27th and 29th charges should run consecutively. The Defence appears to accept that the 6th and 26th charges are unrelated to the 29th and 33rd charges inasmuch as they involved a different giver. The Defence also accepts that the court may impose consecutive sentences on the basis that this is necessary to reflect the added criminality of further unrelated offending.

My decision on sentence

I now explain my decision on sentence and give my reasons, which will encompass the following areas:

(a) the appropriate indicative sentences for each of the offences under s 165 of the Penal Code, having regard to the offence-specific factors;

(b) the appropriate indicative sentence for the offence under s 204A(a) of the Penal Code, having regard to the offence-specific factors;

(c) the appropriate adjustments to be made to all the individual indicative sentences on account of the offender-specific factors; and

(d) the appropriate aggregate sentence.

Indicative sentences for the offences under s 165 of the Penal Code

The object and purpose of s 165 of the Penal Code

Section 165 falls within Chapter 9 of the Penal Code, which provides for “Offences by or relating to public servants”. It is noteworthy that Chapter 9 also contains s 161 which, broadly speaking, prohibits a public servant from taking gratification other than legal remuneration in respect of an official act. For ease of reference, I set out both ss 161 and 165 of the Penal Code in full:

The prescribed punishment under s 161, being a fine or imprisonment of up to three years or both, exceeds the prescribed punishment under s 165 in its severity. This appears to correlate with the heightened gravity of an offence under s 161. Section 161 requires proof that the gratification in question constituted a motive or reward for: (a) doing or forbearing to do any official act; (b) showing or forbearing to show favour or disfavour to any person in the exercise of the offender’s official functions; or (c) rendering or attempting to render any service or disservice to any person with the Government, any Member of Parliament or the Cabinet, or with any public servant.

Section 165, on the other hand, targets the following situation:

(a) a public servant (“A”) accepts, obtains, agrees to accept or attempts to obtain;

(b) for A or for any other person;

(c) any valuable thing without consideration or for a consideration which A knows to be inadequate;

(d) from a person of the following description:

(i) any person whom A knows to have been, to be or to be likely to be concerned in any proceedings or business transacted or about to be transacted by A or having any connection with the official functions of A or of any public servant to whom he (A) is subordinate (ie, A’s superior); or

(ii) any person whom A knows to be interested in or related to the person so concerned.

Unlike s 161, there is no requirement under s 165 of the Penal Code that the received benefits constituted a motive or reward bearing some connection with the public servant’s official acts, the exercise of his official functions or the rendering of a service or disservice to any person. For the purposes of [67(d)] above, the requisite mens rea is that of knowledge. It suffices that the public servant knew that the giver of the valuable thing was, is or is likely to be concerned in any proceedings or business transacted or about to be transacted by him or having any connection with his official functions or those of his superior. In the alternative, this knowledge may consist of a knowledge that the giver of the valuable thing is interested in or related to the person so concerned.

It has been said that the offences under ss 161–165 of the Penal Code deal specifically with bribery and other forms of corrupt practices involving public servants and compared to the offences in the PCA, are more targeted in scope toward tackling the various forms of bribery of, and the taking of bribes by, public servants.

The Penal Code was enacted in 1871, drawing heavily from the Indian Penal Code 1860 (Act 45 of 1860) (the “Indian Penal Code 1860”). The origins of ss 161 and 165 of the Penal Code can be traced back to the draft Indian Penal Code (the “Draft Indian Penal Code 1837”), which was prepared by the Indian Law Commission (the “ILC”) chaired by Thomas Babington Macaulay and submitted to the Governor-General of India in Council in 1837. This draft was eventually amended and passed into law on 6 October 1860. The Indian Penal Code 1860 remained in force in India until it was superseded by the Bharatiya Nyaya Sanhita (Act 45 of 2023), which came into force on 1 July 2024. Section 161 of the Penal Code may be traced back to cl 138 of the Draft Indian Penal Code 1837. Meanwhile, s 165 of the Penal Code appears to find its origins in cl 141 of the Draft Indian Penal Code 1837, which read as follows:

As the Prosecution highlights, cl 141 of the Draft Indian Penal Code 1837 was never passed into law. Instead, the provision adopted in the Indian Penal Code 1860 was substantially the same as s 165 of the Penal Code. The reasons for the changes are unknown, because there is no surviving copy of a report by the ILC chaired by Sir Barnes Peacock in 1856, documenting the reasons for the changes made to the Draft Indian Penal Code 1837 (see Ho Man Yuk v Public Prosecutor [2019] 1 SLR 567 at [78(e)]). It is therefore unclear why s 165 of the Penal Code does not contain language “excluding trivialities, such as refreshments in the course of hospitality”.

I make three observations in light of the historical context:

(a) First, s 165 of the Penal Code applies to all public servants, which term is defined very broadly under s 21(1) of the Penal Code to include a large class of persons employed to perform public duties and is not limited to judges.

(b) Second, s 165 of the Penal Code does not contain any explanation as to the meaning of a “valuable thing”. This is unlike s 161 of the Penal Code, the explanations to which clarify that “gratification” is “not restricted to pecuniary gratifications, or to gratifications estimable in money”, and that “legal remuneration” is “not restricted to remuneration which a public servant can lawfully demand but [includes] all remuneration which he is permitted by law to accept”. What is clear is that the use of “valuable thing” in s 165, as opposed to “gratification”, is deliberate. In my view, the plain and ordinary meaning of “valuable thing” in the legislative context must mean a thing “having considerable monetary worth” (see the Collins Dictionary). The issue of whether an item satisfies this description is, to my mind, an objective factual inquiry.

(c) Third, s 165 of the Penal Code encompasses a wide variety of factual scenarios. Without providing an exhaustive list, some variables include the position occupied by the offender, the nature of the connection between the proceeding or business (in which the giver is interested) with the offender’s official functions, the value of the item obtained or accepted, the manner in which the offender abused his public office to obtain the benefit and whether the valuable item was accepted or obtained directly or from an associate of the giver.

I am also cognisant that the object of s 165 of the Penal Code differs from that of s 6(a) of the PCA. To constitute an offence under s 165 of the Penal Code, unlike an offence under s 6(a) of the PCA, it is not necessary that the offender provided any quid pro quo for the valuable thing. For instance, it is not necessary to establish that the valuable thing constituted an inducement or reward to the offender for acting, forbearing to act, showing favour or forbearing from showing disfavour in relation to his principal’s affairs. As a further example, to constitute an offence under s 165 of the Penal Code, it is also not necessary for the Prosecution to prove that the offender had acted with a corrupt intent in obtaining or accepting the valuable thing.

It should be noted that the punishment prescribed in s 7 for offences committed under ss 5 or 6 of the PCA relating to a contract or proposal for a contract with the Government, a government department or a public body, or a subcontract to execute work comprised in such a contract, is a fine of up to S$100,000 or imprisonment of up to seven years or both. The prescribed range of punishment under s 7 of the PCA is more extensive compared to that under s 165 of the Penal Code.

General deterrence is the predominant sentencing consideration

Having regard to the language of s 165 of the Penal Code, it appears to me that the gravamen of the offence is the damage to the trust in and integrity of public institutions stemming from the perception that the patronage of public servants may be cultivated by offers of valuable items from interested persons, such as those with an interest in the outcomes of legal proceedings or a business interest in a transaction with a public institution. Persons who hold public office are conferred status and power by virtue of such office for the purpose of serving the public interest, and the obtaining of gifts from persons who have a connection with a public servant’s official duties is an abuse of such power. Section 165 thus establishes a prohibition against the acceptance or obtaining of such pecuniary benefits by public servants with knowledge of the giver’s interest in certain proceedings or business connected to the public servant’s official capacity.

Given the object of s 165 of the Penal Code of safeguarding the integrity of public institutions and the public interest, general deterrence assumes centre stage in sentencing. The lack of prevalence of an offence may well be regarded as a sign of the health of the Government’s processes and protocols but it cannot detract from the necessity for the courts to signal their disapprobation of serious offences that threaten the public interest. I therefore disagree with the Defence’s submission that general deterrence has “limited application” in the present case simply because offences under s 165 of the Penal Code are not prevalent, as evidenced by the fact that “there has hitherto been no reported decision” involving such offences. In Public Prosecutor v Law Aik Meng [2007] 2 SLR(R) 814 (“Law Aik Meng”), the High Court clarified (at [24]) that:

The court then gave, as examples of such situations, where the offence is committed against or relating to public institutions (at [24(a)]) or is difficult to detect and/or apprehend (at [25(d)]). The court also added (at [25(c)]) that, where an offence has the wider-felt impact of triggering unease and offending the sensibilities of the general public, a deterrent sentence will be necessary and appropriate to quell public disquiet and the unease engendered by such crimes. Thus, although general deterrence may certainly be relevant where the offence in question is prevalent (see Law Aik Meng at [25(a)]), this is only one of the many situations in which the need for general deterrence may be engaged.

In oral arguments before me, the Defence submitted that public confidence in the Government’s impartiality and integrity was not undermined because the public had learnt about the offences for the first time when the accused was charged. The Defence further argued that a powerful signal had already been sent by the preferring of charges against the accused.

I reject this submission for two main reasons. First, the Defence’s submission would be contrary to the principles in Law Aik Meng at [24] and [25]. General deterrence is not invariably displaced where any public disquiet arises only after an offender is prosecuted for his offences. As I have explained at [77] above, the public disquiet caused is one of the reasons why general deterrence is a relevant sentencing consideration. There is no necessity for such disquiet to have arisen before the offender was charged (and, consequentially, information about those charges publicised by the media). Indeed, it would be illogical to place less weight on general deterrence for this reason because there are a number of reasons why offences may remain out of the public eye prior to the initiation of criminal proceedings against an offender. For instance, this could have been due to his concealment of the offences or other reasons unattributable to him. Indeed, where the authority and status of an offender holding high public office may cause others to be slow to question his offending acts, the public disquiet that is generated when the offences come to light would clearly be significant. Second, I struggle to make sense of the contention that the mere fact that the accused has been prosecuted would have sent a sufficiently strong signal that the offences committed were unacceptable. The prosecution of an offender must necessarily be for the purpose of bringing the offender to justice, and the criminal justice process of justice begins with the initiation of criminal proceedings and culminates with the imposition of an appropriate sentence in the event of a conviction. In other words, if the initiation of criminal proceedings for an offence were to result in the imposition of an inadequate sentence, justice would not be appropriately served. Accordingly, general deterrence is the dominant sentencing consideration for an offence under s 165 and the Defence’s submission that general deterrence is of limited application for such an offence cannot be correct.

The sentencing approach: default custodial terms with adjustments for aggravating and mitigating factors

As observed by the parties, there appears to be no reported cases in Singapore involving an offence under s 165 of the Penal Code, from which guidance on sentencing can be derived. Limited guidance may be obtained from cases under the PCA, in light of the differences in the statutory context and punishment spectrum highlighted earlier (see [73]–[74] above). The default punitive position for a particular offence must be determined by reference to the punishment at the two ends of the spectrum of possible sentences as a first step. This may then be adjusted having regard to any aggravating or mitigating factors (Public Prosecutor v Hue An Li [2014] 4 SLR 661 (“Hue An Li”) at [59]; Public Prosecutor v BDB [2018] 1 SLR 127 at [59] and [61]).

To give an example of one such analytical approach, in Hue An Li, in providing guidance on the sentencing of offenders who have caused death by negligent driving under s 304A(b) of the Penal Code, the High Court held (at [61]) that the appropriate starting point should be a brief custodial term of up to four weeks’ imprisonment, being an approximate midpoint in a spectrum that ranged from a fine to two years’ imprisonment. The High Court clarified, however, that this did not mean that a sentence of imprisonment would be imposed in every case, because the court must examine all the circumstances of each individual case as well as any aggravating and/or mitigating factors to determine the gravity of the particular offender’s conduct before deciding what the appropriate sentence should be.

In certain contexts, it may be appropriate for a custodial term to constitute the general starting point even if the spectrum of possible punishment encompasses a fine as well as an imprisonment term. Indeed, in Chiew Kok Chai v Public Prosecutor [2019] 5 SLR 713, the High Court held (at [52]) that a custodial sentence should be the norm for offences of making a false declaration in connection with a work pass application under s 22(1)(d) of the Employment of Foreign Manpower Act (Cap 91A, 2009 Rev Ed) on account of the strong need for deterrence against such offences. In the court’s view, a fine for such offences would generally not be sufficient punishment unless substantial mitigating factors were present.

In Koh Yong Chiah v Public Prosecutor [2017] 3 SLR 447 (“Koh Yong Chiah”), in considering the offence of providing false information to a public servant under s 182 of the Penal Code, the High Court refrained (at [48]) from defining in the abstract a uniform set of factors that would allow the categorisation of an offender’s degree of culpability and, in turn, the appropriate punishment. The court instead provided broad guidance (at [49]) as to the type of cases that would generally attract a custodial sentence as a starting point, stating (at [50]) that the courts should, as a starting point, impose a custodial term if “appreciable harm” may be caused by the offence. Such harm could include personal injury, loss of liberty, financial loss or harm arising from the wastage of public investigative resources. The court recognised (at [50(e)]) that:

Until a corpus of relevant case law develops, it would be premature to set out a list of factors, as the court did in Koh Yong Chiah, to rationalise when the custodial threshold has been crossed, or to consider the appropriateness of setting out a sentencing framework for all offences under s 165 of the Penal Code. Given the strong deterrent stance required against offences that have the potential to destroy trust and confidence in public institutions, in my view, a custodial sentence should generally be the starting point where: (a) a public servant accepts a valuable item from a giver; and (b) the public servant knows that the giver has an interest in a business transaction which has a connection to the public servant’s official functions. Where appropriate, a fine in addition to a term of imprisonment should be imposed to disgorge any gains made by the offender.

Such a starting point would be subject to upward adjustments for aggravating factors and downward adjustments for mitigating factors. For clarity, there is no invariable rule that a custodial sentence must be imposed for all offences under s 165 of the Penal Code. A fine may be appropriate in the circumstances in light of the offence-specific and offender-specific aggravating and mitigating factors.

The relevance of foreign precedents

For completeness, as directed by this court on 24 September 2024, the parties subsequently addressed this court in writing on the relevance of the case of Mohd Khir bin Toyo v Public Prosecutor [2015] 5 MLJ 429 (“Mohd Khir”) to sentencing generally, for offences under s 165 of the Penal Code, in light of the absence of local reported precedents.

In summary, in Mohd Khir, the offender was the Chief Minister of Selangor and, by virtue of that position, also the Chairman of the Selangor State Economic Development Corporation (“PKNS”). The offender had suggested to Dato Shamsuddin bin Haryoni (“Dato Shamsuddin”) that he was desirous of purchasing a piece of land, and Dato Shamsuddin formed the impression that the offender would in turn purchase the land from him. Dato Shamsuddin proceeded to acquire the land as he did not want to jeopardise his business interests in construction projects with the Selangor State Government transacted with PKNS. The offender later required Dato Shamsuddin to sell him the land at the price of RM3.5m, which Dato Shamsuddin testified that he did for fear of jeopardising his business interests with the State of Selangor. The offender knew that Dato Shamsuddin had purchased the land at RM6.5m and thus the consideration of RM3.5m was inadequate. The offender also knew of Dato Shamsuddin’s business interests in Selangor that were connected to the offender’s official duties as Chief Minister of Selangor. The offender claimed trial and was convicted of and sentenced to one year’s imprisonment for an offence under the Malaysian equivalent of s 165 of the Penal Code, which sentence was upheld by the Malaysian Federal Court.

In its written submissions, the Defence brought to my attention the High Court’s pronouncements in Chan Chun Hong v Public Prosecutor [2016] 3 SLR 465 (at [87]) that:

The Prosecution similarly agreed that “the sentences imposed by foreign courts do not typically inform sentencing in the Singapore context”.

I agree with the common ground taken, viz, while foreign precedents may be referred to and treated as persuasive in order to discern the relevant sentencing principles and considerations, limited guidance may be obtained in relation to the specific sentence to be imposed. Mohd Khir is persuasive to the extent that it indicates that nature of the offender’s office may be a relevant sentencing consideration for offences under s 165 of the Penal Code (see Mohd Khir at [157]).

Offence-specific factors

(1) Culpability factors

I agree with the Prosecution that the higher the office held by the offender as a public servant, the higher his level of culpability. Holders of high office ordinarily wield a greater degree of potential influence over significant business transactions or proceedings and have a larger resultant impact on the public interest. Further, such persons set the tone for public servants in conducting themselves in accordance with high standards of integrity, and must be expected to avoid any perception that they are susceptible to influence by pecuniary benefits. Persons who accept appointments to high office take on the heavy responsibilities of their office along with the associated power and status, and should generally be regarded as having acted with greater culpability in abusing their position to obtain valuable gifts.

An offender’s awareness that the giver was motivated by a desire to cultivate his goodwill and loyalty would also be a relevant factor in sentencing. The decision to obtain a valuable item in such circumstances, where the offender knows of a close connection between the giver’s interest and his official functions, is a marker of a more culpable state of mind. This consideration may be relevant where the giver has a significant interest, of which the offender is aware, in business undertaken by the offender by virtue of his official capacity. In other words, the larger the financial or personal interest of the giver known to the offender, the more culpable the offender is in receiving the benefit. This is because such knowledge of the giver’s significant motivation in cultivating and purchasing the offender’s patronage signifies a greater abuse by the offender of the trust reposed in the integrity of his office.

Other offence-specific factors include the degree of premeditation, sophistication and planning, the period of offending, as well as attempts to conceal the offence, to the extent that the relevant facts do not form the subject of a separate charge. For instance, where the concealment of an offence under s 165 of the Penal Code forms the subject of a separate charge under s 204A of the Penal Code, such concealment should not constitute an aggravating factor for the s 165 offence to avoid double counting.

(2) Harm factors

The value of the benefit obtained is relevant to sentencing, as the greater the pecuniary benefit obtained by the offender, the greater the tendency for injury to trust and confidence in public institutions. I should emphasise that the mere perception that the offender is under the influence of the giver is itself a type of harm because of the paramount importance of trust and confidence in public institutions. As the High Court put it in Koh Yong Chiah (at [68]):

Nonetheless, the court should eschew an over-emphasis on the value of the valuable item, for two main reasons. First, the accepting or obtaining of a valuable item is itself an element of the offence. To consider the mere fact that the item is valuable as an aggravating factor would therefore be double counting. Thus, the value of the item is relevant in sentencing only insofar as it is sufficiently significant as to indicate a higher level of damage to the public interest, thereby constituting an aggravating factor. Second, the value of the item is only one of the indicators for the level of harm caused by the offence. The harm caused will necessarily fall to be assessed having regard to the entire context, particularly the nature of the office and the functions that were at risk of being or have in fact been compromised. Generally, the greater the public interest in the concerned transactions or the official functions of the offender, the greater the harm that would ensue.

Any evidence that the offender’s discharge of his official duties was in fact influenced by his receipt of the valuable item would be relevant to the level of harm and constitute an aggravating factor. If the offender, in the exercise of his official capacity, does any act or forebears from doing any act as a favour to the giver consequent upon receiving the gift, harm would necessarily have resulted, even if there is no evidence that the giver had reaped any tangible financial benefit or business advantage. A fortiori, if the giver had been conferred any benefit or advantage by the offender in the exercise of his official functions, the level of harm would be greater.

Application to the facts

(1) The accused’s level of culpability

In relation to the 6th and 26th charges, the accused was a Minister and Chairman of the F1 Steering Committee at the material time. As rightly pointed by the Prosecution, as a Minister, the accused occupied the highest level of executive office. This placed him in a position to wield great influence over transactions of wide public interest. Further, as highlighted by the Prosecution, the accused as Chairman of the F1 Steering Committee oversaw the Singapore F1 and was the Government’s chief negotiator with SGP on business matters relating to the Singapore F1. The Singapore F1 had a significant bearing on the nation’s economic interests as a large-scale event that would draw in overseas spectators and generate income for the nation.

In relation to the 29th and the 33rd charges, the accused’s culpability was heightened by the critical role that he assumed as the Minister of Transport. As Minister for Transport, the accused was responsible for the LTA, which was involved in construction projects relating to the mass rapid transit (“MRT”) system. The MRT system was a project that would improve the infrastructure of the nation and affect the well-being of the entire nation.

Even if there was no evidence that the accused had exercised his influence over the connected business transactions, namely, the Singapore F1 Contracts and the T315 Contract, in favour of OBS or LKS, the accused’s culpability cannot be considered low given the accused’s experience and standing as a Minister. When the offences were committed, the accused had been a Minister for six to ten years. In his position, the accused’s culpability was higher for placing himself in a position of susceptibility to influence by pecuniary benefits conferred by persons with interests connected to his office.

Further, in committing the offence stated in the 6th charge, the accused had acted with deliberation insofar as he had made a specific request for the valuable items. When asked by Colin how many tickets to the Singapore F1 2017 race he required, the accused had answered that he would require ten Green Room tickets.

Similarly, in committing the offence stated in the 26th charge, the accused also acted with deliberation. The accused took urgent personal leave to facilitate his availability for the Doha Trip, thereby enabling him to enjoy an all-expenses paid trip with only four days’ prior notice.

In respect of the 6th and 26th charges, the accused abused his position by obtaining gifts from OBS despite knowing that OBS was concerned in business transacted having a particularly close connection with the accused’s official duties. This was a culpability-increasing factor. The accused was Chairman of the F1 Steering Committee, which was tasked with resolving high-level policy and implementation issues and synergising efforts between government agencies and SGP. OBS, meanwhile, was the beneficial owner of more than 90% of the shares in SGP. At the time of committing the offence in the 6th charge, the accused was also responsible, as the Minister (Industry) in the MTI, for the STB. At that time, the accused also knew that OBS was concerned in business transacted between SGP and the STB relating to the setting aside of a certain number of complimentary tickets to the Singapore F1 race to be distributed free of charge for the purpose of its promotion. When the offences stated in the 6th and 26th charges were committed, the accused was aware that OBS was concerned in business transactions that formed part of a long-running business relationship between the STB and SGP for the promotion, hosting and staging of the annual Singapore F1 race. This long-standing business relationship lasted from 2008 to 2023 (save for 2020 and 2021 when the Singapore F1 race was not held due to the COVID-19 pandemic).

The Prosecution characterises the accused as “more than a passive accepter of the gifts in question” on the basis that he had played an “active role” in obtaining the gifts. The Defence took issue with this characterisation in oral arguments before me. As I understand it, the Prosecution’s submission is that the accused had acted with deliberation and therefore displayed a higher level of culpability. I see no reason to disagree with this either as a matter of principle or on the facts. While the accused did not actively seek out the gifts, he cannot be described as a mere passive acceptor on the facts before me in relation to the 6th and 26th charges. Indeed, for the reasons I have just given (see [99]–[100] above), the accused’s level of culpability for the 6th and 26th charges was increased in view of the deliberateness discernible from his conduct.

Conversely, with respect to the 29th and 33rd charges, I am of the view that there was no evidence that the accused had acted with premeditation or deliberation in accepting the gifts given by LKS.

(2) The harm caused

In a similar vein, the Defence submits in relation to the 6th charge that the Green Room tickets were not intended for sale but for distribution without charge to persons “desirable and necessary for the promotion and benefit” of the Singapore F1 race. The Defence emphasises that the accused did not sell his Green Room tickets for pecuniary gain but distributed them to family, friends and other people of diverse backgrounds, believing that this would achieve the Government’s objective of ensuring that the Singapore F1 would be an inclusive event that all segments of Singapore society could be a part of and take pride in.

The submission ignores the fact that the Green Room tickets would otherwise have been allocated by SGP for distribution free of charge, pursuant to its contractual obligations, as the promoters of the Singapore F1 race. In my view, the fact that the accused obtained special access to the Green Room tickets by virtue of his connection with OBS, who was concerned in business transacted by the accused in his official capacity, was of itself injurious to the integrity of the accused’s office. The resultant harm is not negated or diminished by the accused’s choice to share the benefit of the Green Room tickets with his associates. Further, the fact that the accused did not sell the tickets for pecuniary gain is only indicative of the absence of an aggravating factor but does not in and of itself constitute a mitigating factor.

The value of the items received was not insignificant, with the value being more significant for the 6th and 26th charges, in comparison with the 29th and 33rd charges. In my view, the value of the items received was culpability-increasing to an extent commensurate with their value.

(3) Indicative starting points

Having considered all of the relevant factors, I assess the harm and culpability of the accused as moderate for the 6th and 26th charges and low for the 29th and 33rd charges. Accordingly, I set out the indicative starting points as shown in the table:

Indicative sentence for the offence under s 204A of the Penal Code

I next turn to the 27th charge. The prescribed punishment for the doing of an act with a tendency to obstruct, prevent, pervert or defeat the course of justice with knowledge or intention is a maximum imprisonment term of seven years or fine or both. The 27th charge, which was framed under s 204A(a) of the Penal Code, pertained to the commission of such an act knowing it was likely to obstruct the course of justice.

In Parthiban a/l Kanapathy v Public Prosecutor [2021] 2 SLR 847 (“Parthiban”), the Court of Appeal observed (at [27(a)]) that general deterrence ought to be the primary sentencing consideration for offences under s 204A because such offences “strike at the very fundamental ability of the legal system to produce order and justice” [emphasis in original]. The Court of Appeal also identified (at [27(c)]) a multitude of offence-specific and offender-specific factors which may be considered in determining the relevant sentence to be imposed, including:

(a) The nature of the predicate charge upon which the offender had sought to thwart the course of justice. The more serious it is, the more serious the act of perverting the course of justice will be.

(b) The effect of the attempt to pervert the course of justice.

(c) The fact that the offender perverted the course of justice in order to protect his own perceived interests.

(d) The degree of persistence, premeditation and sophistication in the commission of the offence.

Thus, in Parthiban, it was relevant that the predicate offence that the offender’s actions were aimed at subverting, being a capital charge of drug importation, was regarded (at [28]) as “the most serious conceivable” [emphasis in original]. This was the case not just with regard to the offender’s own capital charge, but in relation to the co-accused’s capital charge of abetting the offender’s drug importation. There was also extensive planning and premeditation. The offender had written a lengthy and detailed note containing instructions for the co-accused to falsely testify in a way so as to exonerate them both and arranged for a fellow prison inmate to pass the note to the co-accused to circumvent the difficulty the offender faced in meeting him. Further, while the offender’s actions were discovered prior to any judicial determination at the trial, this was only due to the co-accused’s voluntary disclosure. It was therefore entirely fortuitous that no harm had resulted. In the circumstances, the court concluded that the sentence of one year and nine months’ imprisonment appropriately reflected the seriousness of the offence.

The Defence highlights that Parthiban concerned an offence committed prior to the amendment to s 204A in January 2020 pursuant to the Criminal Law Reform Act 2019 (Act 15 of 2019). Prior to 2020, s 204A only criminalised the intentional obstruction, prevention, perversion or defeating of justice, within the same range of punishment. The amended s 204A likewise criminalises such acts (see s 204A(b)) but additionally criminalises acts done with the knowledge that they are likely to obstruct, prevent, pervert or defeat the course of justice (see s 204A(a)). On this basis, the Defence seeks to distinguish Parthiban. It emphasises that an offence under s 204A(a) should attract a lower sentence than one under s 204A(b) because a person who intentionally obstructs the course of justice must be more culpable than one with a lesser mens rea of mere knowledge that his act is likely to have that effect.

It is essential to note that the prescribed punishment for offences under s 204A was not increased by the amendment. The purpose of the amendment was to redefine the mental element for offences under s 204A of the Penal Code and not to prescribe different consequences for offenders who act with knowledge vis-à-vis those who act with intention. The Explanatory Statement to the Criminal Law Reform Bill 2019 (No 6 of 2019) described the purpose of the amendment as follows:

Thus, the amendment was made for the purpose of plugging any lacunae that might permit technical defences in relation to intention. For the purposes of sentencing, the true motivation of the offender in acting as he did, in context, remains a primary consideration. This is no less true following the amendment to s 204A. Indeed, in Parthiban, the Court of Appeal specifically noted the amendment to s 204A but stated (at [26]) that its observations on sentencing “nevertheless remain salient with regard to all versions of this provision”. For the same reason, I cannot agree with the Defence that an offender’s commission of the offence in order to protect his own perceived interests and his degree of persistence, premeditation and sophistication “belong in the realm of intention” and are irrelevant in sentencing offences under s 204A(a), as opposed to s 204A(b), of the Penal Code.

The Defence’s attempt to distinguish Parthiban is premised on the generalisation that knowledge tends to be a less culpable mental state than intent. Indeed, it is trite, as stated by the High Court in Muhammad Khalis bin Ramlee v Public Prosecutor [2018] 5 SLR 449 (at [40]) that:

However, the court should eschew generalisations and assess each case on its own facts, taking into account all the relevant factors in assessing the culpability of an offender. In Seah Hock Thiam v Public Prosecutor [2013] SGHC 136, the offender asked his personal driver to “take care of it”, referring to parking offences committed by the offender’s friends, resulting in his driver taking responsibility for those offences. In so doing, the offender abetted his driver to pervert the course of justice, an offence under the pre-amendment s 204A read with s 109 of the Penal Code. In determining the offender’s appeal against sentence, the High Court did not appear to regard the predicate offences as being especially serious, and also considered that the offender’s culpability was not high even though he had acted intentionally. The High Court thus held that one week’s imprisonment was appropriate and adequate punishment.

In contrast, in the unreported State Courts cases cited by the Defence such as Public Prosecutor v Avtar Singh (SC-908199-2021) (“Avtar Singh”) and Public Prosecutor v Choo Soon Kooi v Public Prosecutor (SC-904795-2023) (“Choo Soon Kooi”), the offenders’ levels of culpability was higher in view of the nature of the consequences that they knew they were likely to avoid. In the result, the punishments imposed in Avtar Singh and Choo Soon Kooi were more severe even though the offenders were charged under the amended s 204A(a) of the Penal Code:

(a) In Avtar Singh, the offender deleted various contact numbers, chatlogs and images to remove evidence in the course of investigations. These investigations eventually resulted in his prosecution for an offence of providing an unlicensed cross-border money transfer service under s 5(1) of the Payment Services Act 2019 (Act 2 of 2019), to which he pleaded guilty and was sentenced to 11 months’ imprisonment. The offender also pleaded guilty to a further offence under s 204A(a) of the Penal Code and was sentenced to six months’ imprisonment.

(b) In Choo Soon Koi, the offender drove without keeping a proper look out and collided into a motorcycle. As a result of the collision, the motorcyclist passed away while his pillion rider suffered a foot fracture. The offender fled the accident scene and took a bus to the Woodlands Checkpoint with the aim of leaving Singapore to avoid investigations. He pleaded guilty to an offence of careless driving under s 65(1) of the Road Traffic Act 1961 (2020 Rev Ed) and to another offence under s 204A(a) of the Penal Code and was sentenced to nine months’ and three months’ imprisonment respectively.

Contrary to the Defence’s submission, there is also no general principle that, in relation to offences under s 204A(a) of the Penal Code, the court should “[maintain] a degree of proportionality … by imposing a substantially lower sentence for the [s 204A(a)] offence than for the predicate offence”. As the Defence itself concedes, such a proposition was neither specifically raised nor argued in Avtar Singh and Choo Soon Koi, the precedent cases on which it relies.

The Prosecution appears to take the position that, as far as offences under s 204A are concerned, it is less serious to obscure the true facts than to destroy evidence. Thus, observing that the offenders in Public Prosecutor v Joshua Tan Jun Liang [2023] SGDC 2 (“Joshua Tan”), Public Prosecutor v Chng Min Sheng [2024] SGDC 102 (“Chng Min Sheng”) and Public Prosecutor v Ivan Goh Feng Jun (Wu Fengjun) [2024] SGDC 46 (“Ivan Goh”) were sentenced to two to six months’ imprisonment for destroying evidence, the Prosecution pegs the appropriate sentence for the 27th charge at two months’ imprisonment:

(a) In Joshua Tan, the offender threw away his mobile phone with the intention of destroying evidence of his communications with the co-accused persons after being contacted by the Commercial Affairs Department (the “CAD”). As a result, the CAD was unable to recover any WhatsApp chats from his mobile phone, impeding its investigations into suspected offences of cheating. The offender was convicted after trial on ten charges under s 420 read with s 109 of the Penal Code and pleaded guilty to six charges of conspiracy to cheat under s 417 or s 420 read with s 109 of the Penal Code as well as an offence of intentionally obstructing the course of justice under the pre-amendment s 204A of the Penal Code. He was sentenced to three months’ imprisonment for the s 204A offence. No appeal was filed against sentence.

(b) In Chng Min Sheng, on the brink of his arrest, the offender destroyed a mobile phone and disposed of a mobile SIM card to conceal his communication records in relation to acts of harassment on behalf of an unlicensed moneylender. The contents of the phone could not be recovered forensically. The offender pleaded guilty to a total of 19 charges, including an offence of intentionally obstructing the course of justice under the pre-amendment s 204A of the Penal Code, and was sentenced to four months’ imprisonment for the s 204A offence. Amongst the proceeded charges were ten charges of causing a minor below the age of 16 to commit harassment on behalf of an unlicensed moneylender under s 28B(1)(b) and punishable under s 28B(2)(b) of the Moneylenders Act (Cap 188, 2010 Rev Ed). The offender’s appeal against sentence, which in any event was only against the imposition of imprisonment in lieu of caning for the non-s 204A offences, was dismissed by the High Court.

(c) In Ivan Goh, the offender deleted his WhatsApp chat log with an accomplice after being called up for investigations into cheating offences with the intention of preventing the Police from gaining access to its contents. He pleaded guilty to an offence of intentionally obstructing the course of justice under the pre-amendment s 204A of the Penal Code amongst other offences and was sentenced to four months’ imprisonment for the s 204A offence. The offender’s appeal against sentence is pending.

I disagree with the Prosecution’s position that it is less serious to obscure the true facts than to destroy evidence. In Parthiban, the Court of Appeal expressly recognised (at [27(b)]) that offences under s 204A of the Penal Code may broadly be categorised into two groups:

The Court of Appeal did not, in giving guidance on the relevant sentencing factors, state that any particular group should generally be regarded as more culpable. Specifically in relation to the first group, the Court of Appeal in discussing the relevant sentencing factors (see [110] above) also did not make any broad suggestion that the eradication of evidence would be regarded as more culpable than the fabrication of evidence.

Applying the sentencing approach in Parthiban to the present case, the accused knew that he had obtained the Doha-Singapore Flight for no consideration from OBS. He committed the offence upon discovering that the CPIB was investigating OBS’s associates. It was the accused who requested OBS to have SGP bill him for the expenses associated with the Doha Trip, and the accused made payment for the Doha-Singapore Flight knowing that this would reduce the likelihood that the CPIB would investigate him in relation to the Doha Trip. In my view, the accused had acted with deliberation and premeditation, in firstly causing SGP to bill him, and then making payment for the Doha-Singapore Flight knowing that this record of payment would make it less likely that the CPIB would investigate him in relation to the Doha Trip. The accused’s actions stemmed from his personal perceived interest of avoiding the CPIB’s investigations into gifts received by him. The commission of the offence by the accused, a Minister¸ with the knowledge that investigations into him would thereby be less likely to be conducted, is a grave culpability-increasing factor.

I would have been minded to hold that an appropriate starting point was five months’ imprisonment. However, given that the accused’s actions did not have an adverse outcome because the CPIB was ultimately not thrown off the trail and proceeded nonetheless to investigate the accused, I ameliorated the starting point to 18 weeks’ imprisonment.

Offender-specific factors

I now turn to the offender-specific factors. As these are largely common to all the proceeded charges, I consider, generally, the extent to which they require an adjustment to the individual starting point sentences. The Prosecution highlights that the charges taken into consideration for sentencing should be given the appropriate weight as an offender-specific aggravating factor. The Defence highlights the following offender-specific mitigating factors: (a) the accused’s public service and contributions to Singapore; (b) the accused’s voluntary disgorgement of his benefits; and (c) the accused’s plea of guilty. I will consider each of these in turn.

The charges taken into consideration for sentencing

In Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (“Terence Ng”), the Court of Appeal provided guidance (at [63]–[65]) on offender-specific factors that apply generally to most offences (and indeed were applied in Terence Ng in the context of a rape offence). Specifically, the existence of similar charges taken into consideration for sentencing is an offender-specific aggravating factor. While a court is not bound to increase a sentence merely because there are offences taken into consideration for sentencing, it will normally do so where such offences are of a similar nature (Terence Ng at [64(a)], citing Public Prosecutor v UI [2008] 4 SLR(R) 500 at [38]).

It should be recalled that there were a total of 30 charges taken into consideration for sentencing, all of which were preferred under s 165 of the Penal Code. In its successful application in HC/CM 16/2024 for the joinder of all 35 charges (see [50] above), the Defence had taken the position that the charges under s 165 of the Penal Code were all of a similar nature. I am of the view that the charges taken into consideration bear a close similarity with the 6th, 26th, 29th and 33rd charges.

The 1st to 5th and 7th to 25th charges related to the acceptance of various valuable items from OBS, whom the accused knew to be concerned in business transacted between the STB and SGP bearing a connection with the accused’s official functions as Minister and Chairman of the F1 Steering Committee. These offences spanned November 2015 to September 2022. The 6th and 26th charges were therefore committed in the context of substantially similar offences over a lengthy duration of time, concerning a significant total value of S$384,340.98 across the 1st to 26th charges, which increased the accused’s culpability for the 6th and 26th charges.

It should also be borne in mind that the 29th and 33rd charges were committed against the backdrop of further offences involving LKS, which were committed after most of the offences involving OBS. The 28th, 30th to 32nd and 34th to 35th charges related to the acceptance of various valuable items from LKS, whom the accused knew to be concerned in business transacted between the LTA and LCBC bearing a connection with the accused’s official functions as Minister for Transport. The 29th and 33rd charges were thus committed in the context of substantially similar offences over a shorter time period of November 2021 to November 2022 and involving a lower total value of S$18,956.94 across the 28th to 35th charges. Thus, the 28th, 30th to 32nd and 34th to 35th charges relating to gifts from LKS, in addition to the numerous similar offences relating to the acceptance of valuable items from OBS, increased the accused’s culpability for the 29th and 33rd charges.

In summary, the charges which were taken into consideration revealed the scale, extent and repetition of the accused’s offending over a significant duration of time. They therefore constituted a culpability-increasing factor as regards the 6th, 26th, 29th and 33rd charges.

The accused’s public service and contributions to Singapore

The accused’s public service and contributions to Singapore are at best a neutral factor in sentencing. As the Defence rightly acknowledges, the High Court recognised in Stansilas Fabian Kester v Public Prosecutor [2017] 5 SLR 755 (“Stansilas”) (at [94]) that it is necessary to justify the mitigating value of public service and contributions by reference to the four established principles of sentencing: retribution, prevention, deterrence (both specific and general) and rehabilitation. In relation to specific deterrence, the offender’s record might suggest that his commission of the offences was an aberration and is unlikely to reoccur, so that it may not be necessary to impose a heavier punishment in order to specifically deter him from reoffending (at [99]). That said, the mitigating value of past contributions will be readily displaced if the court is satisfied that there are other sentencing considerations that override this, such as the interest of general deterrence (at [100]). The High Court summarised the applicable principles in this regard as follows (at [102]):

Applying the principles gleaned from Stanilas (at [102]), bearing in mind the centrality of general deterrence as a sentencing consideration in relation to offences under ss 165 and 204A of the Penal Code (see [76]–[77] and [110] above), the accused’s record of service and contributions to the nation, while substantial, is at best a neutral factor.

The accused’s voluntary disgorgement of his benefits

I turn to the accused’s voluntary disgorgement of his benefits. Drawing a broad analogy between disgorgement and restitution, an offender’s making of timely and voluntary restitution for loss caused by his offending conduct has generally been regarded as evidence of his remorse, and therefore as a mitigating factor (Gan Chai Bee Anne v Public Prosecutor [2019] 4 SLR 838 (“Anne Gan”) at [62], citing Angliss Singapore Pte Ltd v Public Prosecutor [2006] 4 SLR(R) 653 at [74]–[75]). Restitution may also indicate that the economic harm that the victim has suffered has been reduced and therefore attract mitigating weight (Anne Gan at [63]).

The harm done to the public interest, in the form of damage to trust and confidence in public institutions, is unlikely to be adequately remedied by these actions. It is also significant, in my view, that the accused had simultaneously made public statements rejecting the allegations in the charges as false and asserting his innocence. For example, in his letter to PM Lee dated 17 January 2024, the accused stated that he rejected the charges and was innocent and expressed his strong belief that he would be acquitted. Thus, I have considerable difficulty accepting that these acts were indicative of the accused’s remorse and desire to make reparations. As set out earlier (see [52] above), the accused’s intention to accept responsibility for the offences was expressed for the first time only after the completion of the criminal case disclosure procedures. In my view, although some credit can be given for the accused’s voluntary disgorgement of his benefits, the mitigating value is low given that this was not done at an earlier stage of the proceedings. During oral arguments, the Defence submitted that the accused could not have made disgorgement at an earlier stage because this would have prejudiced his defence to the 25th and 26th charges, which were previously framed under the PCA. I am prepared to accept that the accused acted reasonably in only disgorging his benefits in relation to the 25th and 26th charges after these charges were amended. However, I do not accept that the accused could not have made disgorgement any earlier for the other charges under s 165 of the Penal Code. If the Defence’s submission is that these charges were closely connected with the pre-amendment 25th and 26th charges, I explain at [145] below why I do not accept this argument.

The accused’s plea of guilty

It is axiomatic that an early plea of guilty should ordinarily be given due credit for at least two reasons. First, an early plea of guilty allows victims to find closure early, and spares victims and other witnesses the need to prepare for a trial, and to testify in court. Second, an early plea of guilty saves public resources on the part of the law enforcement agency, prosecution and judiciary, which resources would otherwise have been expended if there were a trial (SAP PG Guidelines at para 4; Terence Ng at [66]).

The SAP PG Guidelines, which provide non-binding guidance to judges, the prosecution, defence and general public, therefore aim to “encourage accused persons who are going to plead guilty to do so as early in the court process as possible” (SAP PG Guidelines at para 3). Thus, the SAP PG Guidelines recommend that, the earlier the accused indicates that he will plead guilty, the larger the reduction in sentence ought to be (SAP PG Guidelines at para 6). Accordingly, the SAP PG Guidelines set out a gradated maximum reduction in percentage terms of the notional sentence that would otherwise have been imposed had the accused claimed trial. The percentage reduction recommended, being the highest at the initial stages of the proceedings, would reduce and taper off as the proceedings progress towards the trial.

Both parties agree that the SAP PG Guidelines apply in the present case. In the present case, the proceedings had progressed to the completion of the criminal case disclosure procedures. As recounted earlier (see [51] above), the Prosecution had earlier filed the Case for the Prosecution while the Defence had eventually elected not to file the Case for the Defence. Trial dates were therefore fixed and confirmed. The accused then indicated that he intended to plead guilty before the commencement of the trial. The present case thus falls within Stage 3 of Table 2 of the SAP PG Guidelines, which applies to guilty pleas entered between the giving of directions for the filing of the Case for the Prosecution and the first day of the trial. Accordingly, as a starting point, the accused is entitled to a maximum sentencing reduction of 10%.

Due to the amendment of the 26th charge before the commencement of the trial, para 12 of the SAP PG Guidelines is applicable and it provides as follows:

The amendment to the 26th charge was significant in nature because it substantively altered the nature and consequences of a plea of guilty to the 26th charge. To begin, an offence punishable under s 6(a) read with s 7 of the PCA, for which the prescribed punishment is a fine of up to S$100,000 or imprisonment of up to seven years or both, is far more serious than an offence under s 165 of the Penal Code, for which the prescribed punishment is a fine or imprisonment of up to two years or both. Furthermore, it is no longer essential to the 26th charge, as amended, that the gratification from OBS had been corruptly obtained by the accused as an inducement for advancing OBS’s business interests in relation to the affairs of the accused’s principal. I thus agree with the Prosecution and the Defence that, in view of the substantive nature of the amendment to the 26th charge, it is appropriate for this court to exercise its discretion to confer a discount of up to 30%.

It is apposite at this juncture to address the Defence’s submission that the sentencing reduction of up to 30% should be extended to all the charges. The Defence mounts this submission in the following way. The accused had initially contested the 25th and 26th charges because, as originally framed under the PCA, they were entirely baseless. Importantly, however, the pre-amendment 25th and 26th charges also had the effect of colouring the overall case against the accused. The 26th charge was linked to the 27th charge as the predicate offence. It was also not open to the accused to “excise” and plead guilty to the charges under s 165 of the Penal Code because these were interrelated to the pre-amendment 25th and 26th charges. Specifically, “where there is a corruption charge layered over a [s 165] charge, … the entire complexion and ramifications change for the [s 165] charge”. In the circumstances, the accused was compelled to contest not only the 25th and 26th charges but the overall case against him. The Prosecution’s subsequent amendments to the 25th and 26th charges “changed the entire complexion of the case against [the accused]” and had a “material bearing” on his decision to plead guilty.

I am unable to accept the Defence’s submission. Leaving aside the 26th charge, I am of the view that the accused is only eligible for a sentencing discount of up to 10% having regard to the stage at which he had pleaded guilty. Under para 12 of the SAP PG Guidelines, the sentencing reduction of up to 30% in lieu of the proposed sentencing reductions in Table 2 applies only in respect of charges that have been amended substantively.

I have considerable difficulty accepting that the 30% reduction should be applied across the board to all of the charges, including those that were substantively unamended. It must be recalled, as I have mentioned at [135]–[136] above, that the object of the SAP PG Guidelines is to conserve the State’s resources that would otherwise be expended on a trial and to facilitate early closure for victims and witnesses. The timeline for indicating an intention to plead guilty commences from the date that the charge is read to the accused at a mention, in respect of that charge. Consistent with the objective of the SAP PG Guidelines, indications of an intention to plead guilty should be required to be made on charges as early as possible.

Where an accused faces multiple charges, it would be illogical for the sentencing reduction applicable to one charge (Charge A) to be determined by the completely fortuitous event of an amendment to another charge (Charge B). Charge B could relate to a totally unrelated offence, committed in entirely different circumstances. It is also a contingent matter that Charge A had not been disposed of by the time Charge B was brought, further exposing this illogicality. In fact, a timeous indication of the accused’s intention to plead guilty to Charge A (but not Charge B) would allow the State to redirect the time and resources saved in relation to Charge A to the resolution of the trial concerning Charge B. I therefore have considerable difficulty with the Defence’s attempt to extend para 12 of the SAP PG Guidelines to the remaining charges, which have not been amended substantively since they were read to the accused at the first mention.

In any event, I am not persuaded by the Defence’s submission that the accused had indicated an intention to plead guilty to the remaining charges as soon as possible. The accused had consistently maintained that he would be claiming trial to all the charges, the majority of which were brought under s 165 of the Penal Code (32 out of 35 charges prior to the amendment of the 25th and 26th charges). It was open to the accused to indicate at an earlier stage of proceedings that he intended to plead guilty to the charges other than the 25th and 26th charges, in which case it would have been open to the Defence to apply for the remaining charges to be dealt with after the conclusion of his trial on the 25th and 26th charges. To the contrary, the accused had asked for trial dates to be assigned for all of the charges after confirming that he would not be pleading guilty. He had also applied successfully in HC/CM 16/2024 for a joinder of all the charges. The criminal case disclosure procedures for all the charges have also been concluded, including the criminal revision application in HC/CR 12/2024 and the application for leave in CA/CM 32/2024 to make a criminal reference arising therefrom.

In my view, the accused, having made the tactical choices which he did at the initial stages of the proceedings, must stand by the consequences of those choices. I am unable to accept that the “colour” and “complexion” of the charges under s 165 of the Penal Code were affected by the initial framing of the 25th and the 26th charges under the PCA. The allegations in the s 165 charges related to the receipt of various items over a significant period of time in distinct incidents, relating to various official functions of the accused. The 28th to 35th charges, in particular, involved an entirely different giver from the 25th and 26th charges.

I also do not agree that the 27th charge was so “linked” to the 26th charge that the accused’s election to claim trial to the latter also required him to claim trial to the former. Simply put, the precise nature of the predicate offence is not an essential ingredient of an offence under s 204A of the Penal Code, and an indication of plea can be made early notwithstanding that an accused may be charged at a later date for the predicate offence. In Rajendran s/o Nagarethinam v Public Prosecutor and another appeal [2022] 3 SLR 689 (“Rajendran”), the High Court clarified (at [84]) that s 204A of the Penal Code did not require an accused to know about the particular predicate charge(s) that might be brought against him or anyone else before he could be guilty. An accused only needed to be aware of facts that may amount to wrongdoing, not the charges that may be preferred or the legal consequences that could flow from those facts. I am therefore unable to accept that the accused could not have indicated his intention to plead guilty to the 27th charge at an earlier stage.

In summary, a 30% reduction of the sentence for the 26th charge and a 10% reduction in the remaining sentences (for the 6th, 27th, 29th and 33rd charges) is appropriate on account of the accused’s plea of guilty.

Calibration of the indicative sentences

In the final analysis, the mitigating value to be accorded to the accused’s plea of guilty and voluntary disgorgement has to be weighed against the aggravating weight of the charges which were taken into consideration:

(a) In relation to the 27th charge, the applicable sentencing reduction for the accused’s plea of guilty was attenuated to 10% on account of the indication having been made at Stage 3 under the SAP PG Guidelines. I therefore applied a 10% reduction to the indicative sentence.

(b) In relation to the 6th, 29th and 33rd charges, the applicable sentencing reduction for the accused’s plea of guilty was likewise 10%. The weight accorded to the accused’s voluntary disgorgement at a late stage of the proceedings was low. In view of the countervailing upward adjustment necessitated by the charges taken into consideration, in the final analysis, the end result is that the indicative sentences require no mathematical adjustment.

(c) In relation to the 26th charge, the larger percentage sentencing reduction of 30% allowed for the accused’s plea of guilty for the reasons given earlier (see [139] above), as well as the greater mitigating weight accorded to his voluntary disgorgement which was reasonably made only after the amendment to the charge (see [134] above), would, in my view, warrant some adjustment to the indicative sentence despite the aggravating weight of the charges taken into consideration.

Accordingly, I adjust the individual sentences as appropriate, as shown in the last column of the table below:

The aggregate sentence

Principles in sentencing multiple offences

In sentencing an offender for multiple offences, the court must begin by deciding on the appropriate individual sentences in respect of each charge or offence. Having done so, the court should then consider which of the sentences should run consecutively so as to derive a suitable aggregate sentence (Mohamed Shouffee bin Adam v Public Prosecutor [2014] 2 SLR 998 (“Shouffee”) at [26]–[27]). As a general rule, a multiple offender who has committed unrelated offences should be separately punished for each offence, and this should be achieved by an order that the individual sentences run consecutively (Public Prosecutor v Raveen Balakrishnan [2018] 5 SLR 799 at [41] and [48]). In addition, s 307(1) of the CPC provides that, where an offender is convicted and sentenced to imprisonment for at least three distinct offences, the court must order the sentences for at least two of those offences to run consecutively.

As explained in Shouffee (at [47]), the totality principle is a principle of limitation and is a manifestation of the requirement of proportionality. It comprises two limbs:

(a) The first limb of the totality principle examines whether the aggregate sentence is substantially above the normal level of sentences for the most serious of the individual offences committed (Shouffee at [54]).

(b) The second limb considers whether the effect of the sentence on the offender is crushing and not in keeping with his past record and his future prospects (Shouffee at [57]).

Further, when dealing with multiple sentences, the sentencing court must be vigilant to ensure that aggravating factors are not counted against the offender twice over. Specifically, in choosing which of the multiple sentences of imprisonment should run consecutively, the court should not take into account aggravating factors that were already taken into account when determining the appropriate individual sentences and decide that on account of those factors a combination of longer sentences is called for (Shouffee at [78]–[79]).

Moreover, it is not inconsistent with the totality principle that there may be circumstances, even where the multiple offences were committed in one transaction, where it is appropriate to order more than two sentences to run consecutively. These circumstances include one or more of the following: (a) the offender is a persistent or habitual offender; (b) there is a pressing public interest concern in discouraging the type of criminal conduct being punished; (c) there are multiple victims; and (d) other peculiar cumulative aggravating features are present (Shouffee at [80], citing ADF v Public Prosecutor and another appeal [2010] 1 SLR 874 at [146]).

Application to the facts

The Prosecution submits that the sentences for the 6th, 27th and 29th charges should run consecutively. The Defence does not appear to disagree that more than two sentences ought to run consecutively. On the premise that the court is minded to order more than two imprisonment terms to run consecutively, the Defence agrees that the sentences for the 6th, 27th and 29th charges should run consecutively.

In my judgment, the proposed combination of consecutive sentences accords with the principles in Shouffee. It does not offend the one-transaction rule for two reasons. First, the legal interest protected by the 27th charge is different from the legal interest protected by the remaining charges under s 165 of the Penal Code. The former concerns the prevention of offences against justice by acts having the effect of hindering the course of justice. The latter concern the upholding of the integrity of public institutions by punishing public servants who accept gifts in compromission of their official capacities. Second, the factual circumstances under which the 6th charge and the 29th charge were committed did not form part of the same transaction as they concerned different givers, different time periods, different underlying business transactions and different official capacities on the part of the accused.

The proposed combination also does not offend the totality principle. The aggregate of the imprisonment terms for the 6th, 27th and 29th charges is 12 months’ imprisonment. An imprisonment term of 12 months would be commensurate with the accused’s culpability, having regard to the totality of his offending. The aggregate imprisonment term would also not be crushing, having regard to the accused’s prospects and past records. I have considered certain aggravating factors in calibrating the individual sentences. These include: (a) the similarity of the charges taken into consideration to the proceeded charges under s 165 of the Penal Code; (b) the total duration of the accused’s offending; (c) the overall harm to the public interest and trust and confidence in public institutions; and (d) the high office occupied by the accused. I take special care, therefore, not to double-count these factors against the accused in assessing the proportionality of the aggregate sentence to his overall offending. Applying the principles in Shouffee, these factors cannot be considered once again as cumulative aggravating features that would have a boosting function, requiring the court to increase the severity of the individual sentences or to increase the number of imprisonment terms to run consecutively. Taking one last look at the aggregate sentence, 12 months’ imprisonment is appropriate.

The positions of parties do not bind the court in determining the appropriate sentence

In considering the appropriate sentence, I have duly considered the respective positions of the Prosecution and the Defence on the appropriate sentence but am ultimately unable to agree with both the positions taken. In my view, the following comments in the High Court case of Janardana Jayasankarr v Public Prosecutor [2016] 4 SLR 1288 (“Janardana”) (at [12]) are apposite:

The effect of the High Court’s pronouncements in Janardana is that the parties’ submissions on sentence should not be regarded as the upper or lower limits on the sentence that the court may impose.

More recently, Janardana was cited with approval by the Court of Appeal in CRH v Public Prosecutor [2024] 1 SLR 998 (“CRH”). In CRH, the offender pleaded guilty to two charges of attempted aggravated statutory rape under s 375(1)(b) read with s 511(1) and punishable under s 375(3)(b) read with s 511 of the Penal Code (Cap 224, 2008 Rev Ed). The Prosecution had indicated to the defence that it would submit for no more than nine years’ imprisonment (with caning) to be imposed for each charge, with the two imprisonment terms to run concurrently. The Prosecution did so under the impression that the offences were subject to a mandatory minimum of eight years’ imprisonment. The accused argued that the mandatory minimum sentence was not applicable to attempted offences of aggravated statutory rape.

The General Division of the High Court determined that the attempted offences were not subject to the mandatory minimum sentence and imposed six years and six months’ imprisonment (with caning) per charge, ordering the sentences to run consecutively as the offences were distinct and had taken place a few weeks apart. The aggregate sentence was therefore 13 years’ imprisonment and 16 strokes of the cane. On appeal, one of the grounds relied upon by the offender was that he had operated under the belief that the individual sentences would be ordered to run concurrently regardless of whether the mandatory minimum sentence was held to be applicable to the attempted offences. He argued that, if he had known that he would end up with an outcome worse than that proposed by the Prosecution, he would have accepted the Prosecution’s position without raising the points of law which he did. The Court of Appeal upheld the decision of the General Division of the High Court, and stated (at [38(b)]):

… [I]t is trite that sentencing is within the court’s purview, and the Prosecution’s position is not determinative of the sentence which the court may impose: Janardana … at [12]. Any representation by the Prosecution on its own sentencing position, therefore, could have no bearing on the sentence which the court could impose.

More importantly, the Court of Appeal clarified (at [40]) that a sentencing court would not be bound by any understanding on sentencing that the offender might have had with the Prosecution:

But aside from this, the argument was flawed because it was premised on the notion that a litigant will not be prejudiced by the litigation choices he makes and the strategies he adopts. There was no basis at all for thinking that to be the case. In the final analysis, the appellant had no grounds at all for assuming that whatever understanding on sentencing that he might have had with the Prosecution would bind the sentencing court.

Applying the principles in Janardana and CRH to the present case, I am of the view that it is appropriate to impose a sentence in excess of both parties’ positions. For the reasons I have given in calibrating the individual and aggregate sentences, adopting either of the parties’ respective submissions would result in a manifestly inadequate sentence.

Conclusion

I conclude by addressing the two issues highlighted at the outset. First, in sentencing for offences under s 165 of the Penal Code:

(a) General deterrence is the predominant consideration. The object of s 165 of the Penal Code is to prevent the compromission of the integrity of public servants, through the acceptance or obtaining of valuable items emanating from persons (or the associates of such persons) who have an interest in business transactions or proceedings connected to their official functions. The swift denunciation of such offences is necessary to deter the acquisition or cultivation of the patronage, loyalty or goodwill of public servants by valuables for the perceived benefits of persons with dealings connected to the official capacities of public servants.

(b) A custodial sentence would generally be the starting point where: (i) a public servant accepts a valuable item from a giver; and (ii) the public servant knows that the giver has an interest in a business transaction which has a connection to the public servant’s official functions. Such a starting point would be subject to upward adjustments for aggravating factors and downward adjustments for mitigating factors.

Second, the SAP PG Guidelines provide for a downward gradation in the applicable sentencing reduction as the proceedings progress, as credit should be given to an early plea of guilty which leads to time and resource savings for the State and early closure for victims and witnesses. Paragraph 12 of the SAP PG Guidelines makes clear that when an amendment to a charge has a material bearing on the sentence, eg, when there has been a substantial amendment to the particulars of the charge, the court may exercise its discretion to award an appropriate sentencing reduction irrespective of the reductions that are ordinarily recommended. Where an offender faces multiple charges, and there has been a substantive amendment to one or some of those charges, para 12 applies in relation to the charges to which substantive amendments were made. There would generally be no reason to depart from the recommended reductions for the charges that were not amended.

On the facts, the accused is accorded a 10% reduction on the imprisonment terms for all of the proceeded charges save that a 30% reduction is applied to the imprisonment term for the 26th charge. The percentage reductions are made given that the criminal case disclosure procedures had been completed on all the charges, and the substantive amendment made after the completion of the criminal case disclosure procedures pertained only to the 26th charge.

In the ultimate analysis, I am of the view that the accused’s overall culpability warrants an aggregate imprisonment term of 12 months’ imprisonment. The sentences are summarised in the table below (with the imprisonment terms ordered to run consecutively emphasised in bold):

Annex 1: The charges

Annex 2: Schedule of offences