Wu Junneng and Vivian Toh
severity of a corruption crime is no less than other criminal offences which require mens rea in terms of its consequences, the argument that the removal of the need to prove a corrupt intent would likewise ensure justice. However, it could be argued that it would be unjust to find a defendant liable where he truly lacked the necessary culpable mental state as defined in statute. Nonetheless, as the law currently stands, it is not that the defendant lacks the requisite intent; it is merely that the lacuna allows corrupt intent to be negated by an external factor - such as love as raised in Ng and Tey. This external factor does not mean that the corrupt intent is non-existent, but that the Prosecution cannot rely on it to prove that the defendant is corrupt as it requires the subjective recognition on the part of the defendant that his actions were corrupt. As a result, the Prosecution may fail even though the defendant possessed the requisite corrupt intent. The acquittal of Ng for example, illustrates the exploitation of the lacuna in the PCA. By moving the offence of corruption closer to strict liability offences, justice would be served in the form of successfully prosecuting defendants who possess corrupt intent but attempt to exploit the lacuna in the PCA. In Ng’s case, this would allow a successful prosecution where his behaviour would previously not be deemed corrupt. Despite his apparent corrupt intent, he was not found to be corrupt by exploiting the lacuna in the PCA. Following section 2(7) of the BA, should amendments be made to the PCA, it will no longer matter whether or not Ng knew that his actions were corrupt. Justice can then be achieved with the removal of the lacuna that has condoned corrupt behaviour. That lacuna, if not tackled, would be the true injustice marring the fight against corruption in Singapore. Nonetheless, the lack of a need to prove corrupt intent in the BA is a peculiarity because the mens rea is not as apparent as that in the PCA. Although there is a positive duty to act in order to prevent corruption, a defendant would possess the requisite mens rea for corruption should she fail to consciously act in an incorrupt manner. It is not that a specific mens rea is absent in sections 1 and 2 of the BA, but the intention to obtain a ‘financial or other advantage’ is in itself a corrupt deed. The pressing concern with the BA is that it narrows the range of defences a defendant can rely on. That being said, the BA widens the scope of the offence such that it encompasses a wide breadth of corrupt practices and performances meant to secure corrupt gain with the presentation of a ‘financial’ incentive or ‘other advantage’. There is the need to reconcile the BA with the due process model of justice.32 SUITABLE REFORMS The requirement of having to prove corrupt intent in the PCA is one that is derived from the previous legislation of the PCA 1906 and the PCA 1916 of the United Kingdom. The PCA 1993 is a derivative from its precursors from the UK, and some of its provisions are entirely similar to those set out in its predecessors. An instance would be section 2 of the PCA 1916, and section 8 of the PCA 1993. The introduction and implementation of the BA and the removal of the need to prove corrupt intent is reflective of much deliberation of the UK’s legislature and it is indicative of 32 The due process model of justice presumes the innocence of the accused until his or her satisfactory trial can ascertain guilt.
a conclusion that legislation should progress in this manner. Analytically, it simply provides an imperative for Singapore to include progress in the PCA 1993, which is still based on dated legislation that is not necessarily representative of contemporary Singapore and its current fight against corruption. Therefore, it is submitted that a holistic and rational approach be adopted in order to incorporate amendments made to the BA. Having had the privilege of witnessing the operation of the BA, one tangibly identifies the problems that have arisen in the implementation of the BA. It is therefore suitable to only introduce elements of the legislation that on close comparison in the earlier section, would provide for a more ‘fair, just and reasonable’ approach in Singapore. The BA provides fresh insight into anti-corruption laws. Especially in the public sector (where the corrupt intent requirement could be negated so easily for example by arguing that one was in an intimate relationship), introducing aspects of the BA into the PCA will effectively combat this lacuna. This article submits that it should be immaterial whether or not the recipient knew or believed that his or her act constituted a breach of a legal or equitable duty.33 It is sufficient so long as the gratification has influenced his or her actions. However, the criminalisation of any form of gratification is unduly harsh on genuine expressions of affection and the prosecution of such displays of humanity would subject a proposed improvement to criticisms of absurdity. An improvement would be to require that the defendant’s improper act was ‘substantially’ or ‘significantly’ influenced by the gratification. However, this test would make the offence too broad. Therefore, the better proposal would be that the gratification has to be the primary reason influencing his actions before he will be held liable.34 As aforementioned, it must be pointed out that the BA is not the complete panacea to issues regarding the PCA. Although the BA provides some of the most far-reaching legislation intended to achieve its motive of eliminating corruption, it has been criticised as having ‘all bark but no bite’.35 In the criticism raised by David Aaronberg QC, it is argued that the BA is an immense improvement from previous legislation but raises the logical concern that the scope of offence is unnecessarily widened. One seeks to question the aims of the Act, which though commendable, come across as lofty and overly idealistic. In an impact assessment carried out by the Ministry of Justice, it was predicted that any additional increase of prosecutions brought against individuals and organisations would be minimal under the new Act. Coupled with the taxing amount of resources, both financial and in the amount of manpower required to investigate a case of corruption completely, diminishes much of the hope and efficacy in the stricter crime control modelled legislation that is the BA. In providing a cohesive picture for the change we are seeking to bring about in the PCA, it is to be argued that the lack of corrupt intent of the BA is a positive model to follow although the degree of its inclusion needs to be subject to a degree of thought. This ensures that any new legislation would not be unduly harsh or 33 Law Commission, “Bribery Bill”, (Law Comm. No. 313) 85 Para 6.30. 34 Law Commission, “Bribery Bill”, (Law Comm. No. 313) 83 Para 6.17. 35 David Aaronberg and Nichola Higgins, “The Bribery Act 2010: all bark and no bite?” [2010], Arch. Rev., 5, 6-9.
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