For example, in Ang Seng Thor, the court takes into consideration the number of people “drawn into the web of corruption” especially since the accused corruptly gave gratifications over 80 separate occasions.27
public servants and officers of public bodies is now being expanded. Hence, an increasing number of private sector corruption cases that involve public services or contracts may engage this factor in the course of sentencing.
iv. Offences Committed Over Lengthy Period
However, the role of the public service rationale in sentencing will be expounded on during the discussion of Syed Mostofa Romel later in this article.
When the corruption offences are committed over a lengthy period of time, this would indicate that the person providing the bribes has a greater and more extensive influence over the receiver of the bribes. This was evident in the case of Public Prosecutor v. Tan Ah Peng & 3 Ors where the four offenders pleaded guilty to five counts of corruptly receiving $1,900 fortnightly with 61 other similar charges taken into consideration.28 The gratification there was received over a period of two years and 9 months. v. Serious Consequences Chan Sek Keong CJ in the case of Zhao Zhipeng v. Public Prosecutor (herein referred to as “Zhao Zhipeng”) cites with approval, Sentencing Practice in the Subordinate Courts (LexisNexis, 2nd Ed, 2003) which states: “In deciding if the custody threshold has been breached, the main detriment would be the mischief or likely consequence of the payment or acceptance of the bribe (eg did the corruption undermine the administration of justice, etc).”29 In Zhao Zhipeng, the case involved match-fixing and it was taken that the acts of the Appellant undermined the integrity of the S.League.30 The seriousness of the offences would include whether or not the public service rationale should be invoked in the particular facts and circumstances of the case. Yong CJ in the case of Lim Teck Chye v. Public Prosecutor (herein referred to as “Lim Teck Chye”) states that public servants and officers of public bodies who commit a corruption offence in the course of their duties would have breached the public service rationale.31 However, Yong CJ recognises that not only public servants or officers of public bodies may run afoul of the public service rationale in corruption offences. For example, he accepts that the public service rationale may be directly or indirectly infringed by private organisations that may be awarded tenders for a government contract in relation to the provision of public services.32 Even from the time of Lim Teck Chye, it can be seen that the public service rationale which previously only involved
27
Public Prosecutor v. Ang Seng Thor [2011] 4 SLR 0217, [2011] SGHC 134 at [32].
vi. Givers and Receivers of Bribes It is crucial to note that the established principle is that givers of corrupt gratification generally share equal culpability to receivers and this was stated by Yong CJ in Chua Tiong Tiong v. Public Prosecutor (herein referred to as “Chua Tiong Tiong”).33 However, Yong CJ also notes that a giver may in certain instances bear greater culpability than the receiver and “this is when the giver intends to corrupt the establishment of law and order for his private gain, and/or gives or offers bribes to pervert the course of justice.”34 The offender in Chua Tiong Tiong fell squarely within that scope but it should be noted that while he was charged under s 6(b) of the PCA, he had made bribes to a public servant. It is also crucial to read Yong CJ’s judgment in Chua Tiong Tiong in light of his earlier decision in Lim Poh Tee v Public Prosecutor (herein referred to as “Lim Poh Tee”). The offender in Lim Poh Tee was the recipient of the gratification given by the offender in Chua Tiong Tiong which was the same corrupt transaction.35 CJ Menon in Marzuki bin Ahmad qualified this principle of parity of sentencing between the giver and the recipient of the gratification in saying that it “cannot be viewed or applied as an inflexible and rigid rule”.36 In applying this, CJ Menon concludes the discussion by stating that courts must always have the flexibility to depart from an earlier sentence imposed on a counterparty in the same corrupt transaction where it “is the appropriate course of action to take”.37 One example where a deviation from the strict application of the rule is perhaps when the giver of the bribe initiates the corrupt transaction. While this does not necessarily mean that the recipient of the bribe should be punished less severely, it remains a good starting point for courts to take into consideration when sentencing.
PUBLIC PROSECUTOR v. MARZUKI BIN AHMAD38 i. Facts The accused was employed as an assistant property executive
28
33
29
34 35 36
Ibid.
37 38
Ibid.
Practitioners’ Library, Sentencing Practice in the Subordinate Courts (3rd Edition, Volume II, LexisNexis 2013) 1399. Zhao Zhipeng v. Public Prosecutor [2008] 4 SLR(R) 879; [2008] SGHC 125 at [32].
30
Zhao Zhipeng v. Public Prosecutor [2008] 4 SLR(R) 879; [2008] SGHC 125 at [32].
31
Lim Teck Chye v. Public Prosecutor [2004] 2 SLR(R) 525; [2004] SGHC 72 at [66].
32
Ibid., at [67].
Chua Tiong Tiong v. Public Prosecutor [2001] 2 SLR (R) 515; [2001] SGHC 182 at [21]. Lim Poh Tee v. Public Prosecutor [2001] 1 SLR(R) 241.
Public Prosecutor v. Marzuki bin Ahmad and another Appeal [2014] 4 SLR 623, [2014] SGHC 166 at [45]. Public Prosecutor v Marzuki bin Ahmad and another Appeal [2014] 4 SLR 623, [2014] SGHC.
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