Clause 20

Whenever it appears to the Commissioner that any person has contravened any provision in Part 3, 3A, 3B, 3C or 3D that is punishable as an offence, the Commissioner may, with the consent of the Public Prosecutor, bring an action in a court against the person to seek an order for a civil penalty in respect of that contravention in lieu of prosecution.(2) If the court is satisfied, on a balance of probabilities, that the person has contravened a provision in Part 3, 3A, 3B, 3C or 3D that is punishable as an offence, the court may make an order against the person for the payment of a civil penalty of a sum not exceeding —

in a case of a contravention punishable under section 8(4), 10(2), 12(6), 13(2), 14(3), 15(7), 16B(4) or (6), 16E(3) or (5), 16F(4), 16G(6), 16H(3) or (6), 16I(3) or (6), 16J(3) or (10), 17A(4), 17D(2), 17E(6) or 17F(3), the greater of the following:

10 percent of the annual turnover of the person’s business in Singapore;

$500,000;

in a case of a contravention punishable under section 18A(4), 18D(2), 18E(6), 18F(3), 18H(4), 18K(2), 18L(6) or 18M(3), the greater of the following:

5 percent of the annual turnover of the person’s business in Singapore;

$200,000;

in the case of a contravention punishable under section 10(7), 15(8), 16E(10), 16J(11) or 16K(3) — $150,000; or

in the case of a contravention punishable under section 16(3) or 16L(3) or in any other case — $100,000.(3) Despite subsection (2), the court may make an order against a person against whom an action has been brought under this section if the Commissioner, with the consent of the Public Prosecutor, has agreed to allow the person to consent to the order with or without admission of a contravention of a provision in Part 3, 3A, 3B, 3C or 3D that is punishable as an offence, and the order may be made on such terms as may be agreed between the Commissioner and the defendant.(4) Nothing in this section prevents the Commissioner from entering into an agreement with any person to pay, with or without admission of liability, a civil penalty within the limits referred to in subsection (2) for a contravention of any provision in Part 3, 3A, 3B, 3C or 3D that is punishable as an offence.(5) A civil penalty imposed under this section must be paid into the Consolidated Fund and is to be treated as a judgment debt due to the Government for the purposes of section 10 of the Government Proceedings Act 1956.(6) If the person fails to pay the civil penalty imposed on the person within the time specified in the court order mentioned in subsection (3) or specified under the agreement mentioned in subsection (4), the Commissioner may recover the civil penalty on behalf of the Government as though the civil penalty were a judgment debt due to the Commissioner.(7) Any defence that is available to a person who is prosecuted for a contravention of any provision in Part 3, 3A, 3B, 3C or 3D that is punishable as an offence, is also available to a defendant in an action under this section in respect of that contravention.(8) For the purposes of this section —

sections 36(1) and 37(1) apply, with the necessary modifications, to a proceeding for a civil penalty to be ordered in respect of a contravention of a provision in Part 3, 3A, 3B, 3C or 3D that is punishable as an offence; and

the annual turnover of a person’s business is ascertained from the person’s latest audited accounts.Action under section 37A not to commence, etc., in certain situations37B.—

An action under section 37A must not be commenced after the expiration of 6 years from the date of the contravention of any of the provisions in Part 3, 3A, 3B, 3C or 3D that is punishable as an offence.(2) An action under section 37A must not be commenced if the person has been convicted or acquitted in criminal proceedings for the contravention of any of the provisions in Part 3, 3A, 3B, 3C or 3D that is punishable as an offence, except where the person has been acquitted on the ground of the withdrawal of the charge against the person.(3) An action under section 37A must be stayed after criminal proceedings have been commenced against the person for the contravention of any of the provisions in Part 3, 3A, 3B, 3C or 3D that is punishable as an offence, and may thereafter be continued only if —

that person has been discharged in respect of that contravention and the discharge does not amount to an acquittal; or

the charge against the person in respect of that contravention has been withdrawn.(4) No proceedings shall be instituted against a person for an offence in respect of a contravention of any of the provisions in Part 3, 3A, 3B, 3C or 3D after —

a court has made an order against the person for the payment of a civil penalty under section 37A; or

the person has entered into an agreement with the Commissioner to pay, with or without admission of liability, a civil penalty under section 37A(4),in respect of that contravention.Civil penalty against officer of corporation, etc.37C.—

Where it appears to the Commissioner that a corporation, unincorporated association or partnership (called in this section the contravening person) has contravened any provision in Part 3, 3A, 3B, 3C or 3D that is punishable as an offence, the Commissioner may, with the consent of the Public Prosecutor, bring an action in a court against a person (called in this section the defendant) to seek an order for a civil penalty in respect of that contravention as if the defendant had committed the contravention, in lieu of prosecution of the defendant under section 36(2) or 37(2), if it appears to the Commissioner that —

the defendant is —

in a case where the contravening person is a corporation —

an officer of the corporation, or a member of the corporation (in the case where the affairs of the corporation are managed by its members); or

an individual involved in the management of the corporation and in a position to influence the conduct of the corporation in relation to the commission of the contravention; or

in a case where the contravening person is an unincorporated association or a partnership —

an officer of the unincorporated association or a member of its governing body;

a partner in the partnership; or

an individual involved in the management of the unincorporated association or the partnership and in a position to influence the conduct of that unincorporated association or that partnership in relation to the commission of the contravention; and

the defendant —

consented or connived, or conspired with others, to effect the commission of the contravention;

is in any other way, whether by act or omission, knowingly concerned in, or is party to, the commission of the contravention by the contravening person; or

knew or ought reasonably to have known that the contravention by the contravening person (or a contravention of the same type) would be or is being committed, and failed to take all reasonable steps to prevent or stop the commission of that contravention.(2) Subject to section 37D(2), the action mentioned in subsection (1) may be brought against the defendant in respect of the contravention, whether or not any action is brought against the contravening person under section 37A in respect of the same contravention.(3) If the court is satisfied, on a balance of probabilities, that the contravening person has contravened a provision in Part 3, 3A, 3B, 3C or 3D that is punishable as an offence and the defendant played a role in the contravention mentioned in subsection (1)(b), the court may make an order against the defendant for the payment of a civil penalty of a sum not exceeding —

in a case of a contravention punishable under section 8(4), 10(2), 12(6), 13(2), 14(3), 15(7), 16B(4) or (6), 16E(3) or (5), 16F(4), 16G(6), 16H(3) or (6), 16I(3) or (6), 16J(3) or (10), 17A(4), 17D(2), 17E(6) or 17F(3) — $500,000;

in a case of a contravention punishable under section 18A(4), 18D(2), 18E(6), 18F(3), 18H(4), 18K(2), 18L(6) or 18M(3) — $200,000;

in the case of a contravention punishable under section 10(7), 15(8), 16E(10), 16J(11) or 16K(3) — $150,000; or

in the case of a contravention punishable under section 16(3) or 16L(3) or in any other case — $100,000.(4) Section 37A(3) to (6) applies in relation to an action brought against a defendant under subsection (1) as those provisions apply in relation to an action under section 37A.(5) Any defence that would be available to —

the contravening person if it were prosecuted for its contravention; or

the defendant if he or she were prosecuted under section 36 or 37 in respect of that contravention,is also available to the defendant in an action under subsection (1) in respect of that contravention.(6) In this section —“corporation” includes a limited liability partnership within the meaning of section 2(1) of the Limited Liability Partnerships Act 2005;“officer” —

in relation to a corporation, means any director, partner, chief executive, manager, secretary or other similar officer of the corporation, and includes —

any person purporting to act in any such capacity; and

for a corporation whose affairs are managed by its members, any of those members as if the member were a director of the corporation; and

in relation to an unincorporated association (other than a partnership), means the president, the secretary, or any member of the committee of the unincorporated association, and includes —

any person holding a position analogous to that of president, secretary or member of a committee of the unincorporated association; and

any person purporting to act in any such capacity;“partner” includes a person purporting to act as a partner.Actions not to commence or stayed in certain situations37D.—

An action against a defendant under section 37C must not be commenced after the expiration of 6 years from the date of the contravention of a provision in Part 3, 3A, 3B, 3C or 3D that is punishable as an offence (called in this section the primary contravention) by a contravening person mentioned in section 37C(1).(2) Except with the permission of court, no action may be brought against a defendant under section 37C which relates to a primary contravention by a contravening person mentioned in section 37C(1) (in relation to the defendant), after the commencement of ––

criminal proceedings in respect of the primary contravention against the contravening person; or

an action under section 37A in respect of the primary contravention against the contravening person,and any such action pending on the date of commencement of the proceedings or action in paragraph (a) or (b) must be stayed, and may not thereafter be continued except with the permission of court.(3) Permission under subsection (2) must not be granted if ––

in the criminal proceedings mentioned in subsection (2)(a), the contravening person has been acquitted of the primary contravention; or

in the action under section 37A mentioned in subsection (2)(b), the court is not satisfied that the contravening person has committed the primary contravention.(4) An action under section 37C must not be commenced if the defendant has been convicted or acquitted in criminal proceedings under section 36(2) or 37(2) for an offence in respect of the primary contravention, except where the defendant has been acquitted on the ground of the withdrawal of the charge against the defendant.(5) An action under section 37C must be stayed after criminal proceedings have been commenced against the defendant under section 36(2) or 37(2) for an offence in respect of the primary contravention, and may thereafter be continued only if —

that defendant has been discharged in respect of that contravention and the discharge does not amount to an acquittal; or

the charge against the defendant in respect of that contravention has been withdrawn.(6) No proceedings shall be instituted against a defendant under section 36(2) or 37(2) for an offence in respect of a contravention of any of the provisions in Part 3, 3A, 3B, 3C or 3D after —

a court has made an order against the defendant for the payment of a civil penalty under section 37C; or

the defendant has entered into an agreement with the Commissioner to pay, with or without admission of liability, a civil penalty under section 37A(4) read with section 37C(4),in respect of that contravention.”.