This country-specific Q&A provides an overview to bribery & corruption law in Singapore.
It will cover the definition of bribery, regulation, compliance, liability and enforcement as well as insight and opinion and any upcoming legal changes planned for their respective country.
This Q&A is part of the global guide. For a full list of jurisdictional Q&As visit http://www.inhouselawyer.co.uk/practice-areas/bribery-corruption/
What is the legal framework (legislation/regulations) governing bribery and corruption in your jurisdiction?
The primary anti-corruption law in Singapore is the Prevention of Corruption Act (Chapter 241) (PCA), enacted on 17 June 1960. The PCA has been amended several times, adapting and strengthening the investigative powers of the authorities who rely on it. The main offences under the PCA are set out in sections 5 and 6 which apply to both the private and public sector and prohibit both active and passive bribery.
The Penal Code (Chapter 224), in particular sections 161 to 165, contains further provisions concerning bribery of domestic "public servants". In practice, however, the offences under the Penal Code are rarely used to prosecute corruption offences, with prosecutors usually relying on PCA offences instead.
The Corruption, Drug Trafficking and other Serious Crimes (Confiscation of Benefits) Act (Cap 65A) (CDSA) is another legislative tool to combat corruption. The CDSA also encompasses drug dealing, allows for the confiscation of benefits and touches on other serious crimes.
Which authorities have jurisdiction to investigate and prosecute bribery in your jurisdiction?
The main authorities are the Corrupt Practice Investigation Bureau (CPIB); the Attorney-General's Chambers (AGC); the Commercial Affairs Department of the Singapore Police Office (CAD); the Monetary Authority of Singapore (MAS) and the Singapore Exchange Limited (SGX).
The CPIB is the primary authority investigating, and the AGC the primary authority prosecuting bribery.
How is bribery defined?
The scope of the bribery offences under the PCA is defined widely. In particular, under Section 5 of the PCA it is an offence for anyone to:
"(a) corruptly solicit or receive/, or agree to receive for himself, or for any other person; or
(b) corruptly give, promise or offer to any person whether for the benefit of that person or of another person,
any gratification as an inducement to or reward for, or otherwise on account of —
(i) any person doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed; or
(ii) any member, officer or servant of a public body doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body is concerned […]" [emphasis added]
Further, under section 6 of PCA it is an offence for an agent to corruptly accept or obtain any gratification in relation to the acts or performance of the principal.
Sections 11 and 12 of the PCA add prohibitions in relation to gratifications for domestic public officials.
The concept of a “gratification” is also defined widely in section 2 of the PCA – covering both monetary and non-monetary benefits including “any other service, favour or advantage of any description whatsoever”. In practice this can include money, gifts, loans, fees, rewards, commissions, security, property or interests in property, employment, and favours.
Does the law distinguish between bribery of a public official and bribery of private persons? If so, how is ‘public official’ defined? Are there different definitions for bribery of a public official and bribery of a private person?
The general bribery offences under section 5 and 6 of the PCA apply to both the private and public sectors. In addition to these, the PCA sets out a series of corruption offences specifically covering the public sector, in particular:
- Corruptly procuring the withdrawal from a government tender (Section 10);
- Bribery of a member of the Singapore Parliament (Section 11); and
- Bribery of a member of a public body (Section 12).
Public officials are indirectly defined in the PCA as being "a member, officer or servant of a public body"; a public body, in turn, is widely defined as "any corporation, board, council, commissioners or other body which has the power to act under and for the purposes of any written law relating to public health or to undertakings or public utility or otherwise administer money levied or raised by rates or charges in pursuance of any written law." This includes government boards, councils, commissioners, universities, and public health and utility bodies (section 2, PCA).
The Penal Code's corruption offences relate solely to bribery of "public servants" or public bodies and include, in particular, the following:
- The acceptance by a public servant of a gratification or anything of value without any or adequate consideration (section 165, Penal Code);
- The acceptance of a gratification by any person in order to influence or to exercise personal influence over a public servant (sections 162-163, Penal Code); and
- The acceptance by a public servant of a gratification or anything of value as a reward for doing any official act, outside of legal remuneration (section 161, Penal Code).
"Public servant" is defined in section 21 of the Penal Code as:
- An officer in the Singapore Armed Forces;
- Every judge;
- Every officer of a court of justice;
- An assessor assisting a court of justice of public servant;
- An arbitrator;
- An office holder who holds powers to confine other persons;
- An officer of the Singapore Government;
- An officer who acts on behalf of the Government; or
- A member of the Public Service or Legal Service Commission.
What are the civil consequences of bribery in your jurisdiction?
Under Section 14 of the PCA, where a bribe has been given by any person to an agent, the agent’s principal may recover the value of the bribe as a civil debt. This would allow, for example, a company to seek damages from a former director or employee who received corrupt payments on account of their dealings on behalf of the company. Any such civil liability would be in addition to any penalty or fine imposed as part of a criminal sentence.
In addition to the civil recovery proceedings under the PCA, other types of civil action are available. For example, in certain circumstances it is possible to bring a civil action for damages against a bribe payer or other third party (such as the employer of the bribe payer) for fraudulent misrepresentation or deceit.
What are the criminal consequences of bribery in your jurisdiction?
Any person found guilty of an offence under the PCA may be subject to the following:
- A fine of up to S$ 100,000;
- Imprisonment of up to five years (for private sector offences); and/or
- Imprisonment of up to seven years (for public sector offences).
In addition to the above, under Section 13 of the PCA, any person found guilty of receiving a bribe may also be ordered to pay a penalty equal to the amount of the bribe itself.
Penalties for corruption offences under the Penal Code can be in the form of a fine and/or imprisonment for up to three years.
Does the law place any restrictions on hospitality, travel and entertainment expenses? Are there specific regulations restricting such expenses for foreign public officials?
There are no specific restrictions placed on the provision of hospitality, travel and entertainment expenses per se. That said, under section 8 of the PCA any gratification given to any domestic government employee or employee of a public body by a person seeking to have dealings with the relevant government department or public body, will be presumed to have been given corruptly. This presumption can be rebutted in court if it can be shown that there was no corrupt intent. However, the evidential burden to rebut the presumption of corruption will be on the individuals suspected of bribery. Careful consideration should therefore be given before providing any hospitality, travel or entertainment to domestic public officials.
There are no explicit equivalent restrictions in the context of foreign public officials. However, the general prohibition of bribery under sections 5 and 6 of the PCA applies.
Are political contributions regulated?
Political contributions are primarily regulated by the Political Donations Act (PDA). This Act is designed predominantly to prevent foreign citizens and foreign controlled bodies from interfering in the domestic political process by funding candidates and political associations.
Under the PDA, political associations and candidates can only accept contributions from permissible donors (Singapore citizens over the age of 21, Singapore controlled companies carrying out business mainly in Singapore, and a candidate's political party). If donations come from anonymous donors, receipt is restricted to S$ 5,000 per reporting period.
Donors who donate an aggregate sum of S$ 10,000 or more in a calendar year, political associations and any aspiring or actual candidate must file donation reports, at least annually, to the Registrar of Political Donations.
Are facilitation payments regulated? If not, what is the general approach to such payments?
Facilitation payments are not specifically regulated in Singapore – in particular there is no exemption or defence applicable to such payments similar to that provided, for example, by the United States Foreign Corrupt Practices Act 1977 (FCPA). As such, the payment of a facilitation payment would constitute an act of bribery under Singapore law.
Are there any defences available?
There are no formal defences available under the PCA or Penal Code. In particular, as discussed above, there is no equivalent to the facilitation payment exemption found under the FCPA or the "adequate procedures" defence under the UK Bribery Act 2010.
Further, the PCA explicitly states that the fact that the giving of gifts or other benefits is customary in any trade or profession is not a valid defence to a corruption offence (section 23).
Are compliance programs a mitigating factor to reduce/eliminate liability for bribery offences in your jurisdiction?
As discussed above, there is no formal "adequate procedures" defence in Singapore to reduce or eliminate liability for bribery offences on account of the implementation of a compliance program. That being said, where there is an effective anti-bribery compliance system in place, this may be a mitigating consideration for prosecutors in deciding whether to commence criminal proceedings and/or for the courts at sentencing stage.
Who may be held liable for bribery? Only individuals, or also corporate entities?
The general bribery offences under sections 5 and 6 of the PCA apply to all "persons". The term "person" is defined in the Singapore Interpretation Act to include "any company or association of body of persons, corporate or unincorporated." As such, both individuals and corporates can in principle be held liable.
In practice, however, authorities' enforcement efforts have focussed predominantly on individuals, with prosecutions against corporates for corruption offences being rare to date – although there have been some recent indications of a potential shift in focus towards greater enforcement against corporates.
Has the government published any guidance advising how to comply with anti-corruption and bribery laws in your jurisdiction? If so, what are the elements of an effective corporate compliance program?
In April 2017, the CPIB and SPRING (Singapore's Standard, Productivity and Innovation Board) launched the Singapore edition of Standard (SS) ISO 37001 on anti-bribery management systems. This is a voluntary standard designed to help companies with the design and implementation of effective anti-bribery compliance systems.
In October 2017, CPIB also unveiled PACT – its Practical Anti-Corruption Guide for Businesses in Singapore – to provide guidance for corporates on the developing and implementing an anti-corruption system. Key areas of focus of PACT include the following:
- Tone from the top promoting a corporate culture of compliance;
- The implementation of clear and visible anti-corruption policies and a code of conduct;
- Guidance on common corruption risk areas including:
- Corporate gifts and entertainment;
- Conflicts of interest; and
- Contributions and sponsorship.
- Conducting bribery and corruption risk assessments;
- The implementation of effective internal controls;
- The availability of effective reporting and whistleblower systems; and
- Regular monitoring of the compliance system.
Does the law provide protection to whistle-blowers?
There is currently no universal whistle-blower protection legislation in Singapore. However, some protection is offered by the PCA – in particular, section 36 protects the identity of whistleblowers in the context of court proceedings relating to PCA offences.
How common are government authority investigations into allegations of bribery?
Based on statistics from the years 2013-2017, the CPIB typically receives between 700-800 complaints per year, of which roughly 50% are corruption related. Corruption cases registered for investigation by the CPIB tend to be between 100-150 per year.
What are the recent trends in investigations and enforcement in your jurisdiction?
Historically enforcement actions in Singapore have been focussed predominantly on individuals and on private sector bribery. In 2017, 92% of cases handled by the CPIB arose in the private sector with only 8% relating to public sector bribery (down from 15% in 2016).
Enforcement against corporates remains rare, but the recent investigation into Keppel Offshore & Marine may indicate a potential reversal of this trend. The widely reported Keppel case arose from a series of corrupt payments made to officials of Brazilian state-run oil company, Petrobras, and resulted in investigations by – and a subsequent global settlement in December 2017 with – authorities in Singapore, Brazil and the USA.
Is there a process of judicial review for challenging government authority action and decisions?
Article 4 of the Singapore Constitution provides for constitutional supremacy and thus provides the legal basis of Singapore courts' powers to conduct judicial review of government actions or decisions.
In order for an application for judicial review to be made, an applicant must meet the preliminary requirements provided under the Rules of Court. Amongst these requirements, it is necessary for there to be a prima facie case; a case that is real and not theoretical; the applicant must have locus standi to bring the case and "the sufficient interest" test must be met. However, even if all preliminary requirements are met, the courts, can and have, nevertheless declined jurisdiction in circumstances where they consider the issue to be one that is not appropriate for them to deal with or if it falls outside of their expertise.
Whilst a number of judicial review applications have been granted over the years, the courts have generally been reluctant to interfere in political processes and sought to avoid an adversarial relationship with the Executive. As such, the bar for succeeding on a judicial review application has, in practice, historically been a reasonably high one.
Are there any planned developments or reforms of bribery and anti-corruption laws in your jurisdiction?
On 19 March 2018, Singapore's Parliament introduced a raft of criminal justice reforms. The most significant implication in terms of bribery and anti-corruption legislation was the introduction of a deferred prosecution agreement (DPA) regime.
The recently implemented DPA regime is similar to that in UK – DPAs will only be available to specific offences (corruption, money laundering, but not cheating or fraud); only be available to corporate offenders represented by counsel and not individuals; be fully voluntary and require the approval by the Singapore High Court.
Further reforms of Singapore's anti-bribery and corruption framework have been mooted. Following the widely publicised Keppel case, various commentators have floated suggestions of amendments to strengthen the PCA. Potential reforms are being considered by the authorities, but it remains to be seen whether any substantial amendments will be implemented.
To which international anti-corruption conventions is your country party?
Singapore is a signatory to the United Nations Convention against Corruption – having acceded on 11 November 2005 and ratified on 6 November 2009. It is also a member of the ABD/OECD Anti-Corruption Initiative for Asia and Pacific and the APEC Anti-Corruption and Transparency Experts' Working Group (ACTWG).
CPIB attends annual Economic Crime Agency Network (ECAN) meetings and thrice-yearly G20 Anti-Corruption Working Group sessions (ACWG), is an Executive Committee member of the International Association of Anti-Corruption Authorities (IAACA), and is a founding member of South-East Asia - Parties against Corruption (SEA-PAC).
Since 1992, Singapore has also been a member of the Financial Action Task Force (FATF), and since 1997 part of the FATF-regional body: Asia/Pacific Group on Money-Laundering (APGML).
Do you have a concept of legal privilege in your jurisdiction which applies to lawyer-led investigations? If so, please provide details on the extent of that protection.
Singapore law recognises legal advice privilege and litigation privilege, both of which are codified under the Evidence Act. In summary:
- Legal advice privilege protects confidential communications between a lawyer and their client made for the purposes of seeking or giving legal advice; and
- Litigation privilege protects confidential communications between a lawyer and their client and/or a lawyer and a third party made in reasonable contemplation of litigation.
Under the Evidence Act, the rules of both legal advice and litigation privilege apply in the context of both civil and criminal litigation. However, it remains untested whether parties can rely on legal professional privilege to refuse to provide documents to authorities conducting criminal investigations. The general consensus is that legal professional privilege does not curtail the powers of courts and law enforcement agencies to order the production of documents. Where such an order for production of documents is made within the remit of the relevant authorities' powers, the subject of the order will likely be required to hand these over irrespective of any privilege that may attach to them. That being said, should criminal proceedings follow, the relevant protection will be afforded to any privileged documents and these will not be able to be produced by the Prosecution as evidence in the proceedings.
How much importance does your government place on tackling bribery and corruption? How do you think your jurisdiction’s approach to anti-bribery and corruption compares on an international scale?
Established in 1952, the CPIB is the world's oldest anti-corruption agency and is generally perceived as highly effective in adopting a zero tolerance approach to corruption. Today, Singapore is recognised as one of the least corrupt countries in the world and was ranked the 6th least corrupt country globally in Transparency International's 2017 Corruption Perceptions Index (CPI). The country's "clean" reputation is thus well deserved in light of significant historic and on-going efforts by the government to curb corruption, particularly in the public sector.
Generally how serious are organisations in your country about preventing bribery and corruption?
Singapore's status as a hub for the ASEAN region – which overall ranks fairly poorly on the CPI – does expose multinationals with regional headquarters in the city-state to fairly significant corruption risks, both in terms of private sector bribery and in the context of bribery of foreign public officials. Corporations operating in the region can often encounter some form of bribery and/or corruption in their day-to-day business – whether it be in the form of requests from government officials for small facilitation payments or larger commercial bribes paid by competitors to secure lucrative contracts for which they themselves are bidding.
Against this background – notwithstanding the broader economic opportunities that ASEAN offers – many multinationals operate in the region in challenging environments from an anti-bribery compliance perspective. Increasingly corporates (particularly those exposed to potential FCPA or UK Bribery Act liability) are looking to tackle these challenges head on by implementing robust anti-bribery systems and procedures. However, this is not universal and some corporates are still bucking the trend in this regard.
What are the biggest challenges enforcement agencies/regulators face when investigating and prosecuting cases of bribery and corruption in your jurisdiction?
Enforcement agencies and regulators in Singapore have extensive powers, however, three of the largest challenges they face include:
- Agencies and regulators hampered by laws which are not up-to-date considering the changing face of bribery: the value of bribes has exponentially increased in cases since the inception of the PCA in 1960, and maximum fines under the PCA are arguably not punitive enough to reflect these changes.
- Collaboration with international regulators too could be improved, but the interactions demonstrated in the Keppel international settlement in December 2017 reflect an enhanced focus on such co-operation.
- Under the PCA, CPIB must refer cases to the public prosecutor for prosecution. If the prosecution requires the consent of the public prosecutor, this can hamper the pace of investigations and prosecutions.
What do you consider will be the most significant corruption-related challenges posed to businesses in your jurisdiction over the next 18 months?
Whilst Singapore is a beacon in terms of the anti-corruption landscape in ASEAN, the corruption levels across the remainder of the region remain patchy – with neighbouring jurisdictions ranking such as Malaysia, Indonesia and Thailand ranking 62nd, 96th and 107th (out of 180) respectively in the most recent CPI Index.
As discussed elsewhere in this article, many multinationals have their regional headquarters in Singapore. These headquarters are managing operations in other parts of Southeast Asia. This can present a significant risk for corporates, who may see incidents of cross-border bribery spill over into their Singapore management operations – particularly where these actively oversee "on the ground" business conducted in other regional jurisdictions with a higher bribery risk.
The trend of greater enforcement focus being placed on corporates (in addition to the individuals involved) is one that is being seen across a number of jurisdictions in the region. It is therefore more important than ever that multinationals operating in South-East Asia ensure they have robust and effective anti-bribery systems in place to mitigate this risk – both in terms of preventing bribery and managing eventual enforcement risk.
How would you improve the legal framework and process for preventing, investigating and prosecuting cases of bribery and corruption?
Reform of the PCA has been under review by the Singapore government for some time. The consensus remains that, on balance, the existing legislation is largely fit for purpose and provides enforcement agencies and prosecutors with the necessary tools to combat corruption effectively. It is argued that Singapore's consistently positive CPI rankings are a testament to this and, a result, only reasonably moderate enhancements to the PCA have been implemented over the years – with the most recent amendments passed in 2012.
However, the recent Keppel case has reignited the debate with various commentators mooting further amendments to bolster the PCA framework. The following suggestions, in particular, merit further consideration:
- Increased fines – the PCA's current maximum fine is S$ 100,000 per charge. Considering that commercial bribes can run into the millions of dollars and may relate to contracts worth billions, this cap is arguably too low in certain circumstances.
- Corporate Liability – Under the current regime, in order for a corporate to be liable for bribery offences under the CPA it must be shown that the offence was driven by the "directing mind and will of the company". This is a reasonably high threshold and can, in practice, make enforcement against corporates challenging. A move towards a strict liability regime – such as that found in the UK Bribery Act 2010 – would be welcomed by some commentators who argue that this would enhance corporates focus on compliance and allow greater flexibility for enforcement agencies.
- Greater clarity on extra-territorial implications for bribery – Section 37 PCA currently imposes liability on Singapore citizens for bribery offences committed outside Singapore. The scope of this extra-territorial effect does not, however, extend to non-Singaporeans or corporates. A levelling of the playing field in that regard should be considered – this could for, example, include an extension of the provisions of Section 37 to non-Singaporeans who commit corruption offences abroad when they are agents of a Singapore company or have a Singapore connection (business or assets in Singapore).