Combatting transnational white-collar crime: mutual legal assistance and international co-operation

In our increasingly globalised world, crime and in particular white-collar crime often traverse multiple jurisdictions, involving persons from all over the globe. With a few clicks of a button, the technology that connects our world can also facilitate the concealment, manipulation and dissipation of assets, information and documents. This makes such crimes difficult to detect, investigate and prosecute.

Mutual Legal Assistance in combatting transnational crime

The nature of cross-border crime has thus brought about a paradigm shift in the way countries have embraced mutual legal assistance (MLA).

As a regional trade and financial hub, Singapore, like many other trade-driven countries, recognises the need for MLA in the prevention and suppression of crime. Indeed, it is only through the joint efforts of the international community that multi-jurisdictional investigations have been made possible in for example:

  1. Malaysia’s 1MDB multi-billion dollar corruption and fraud scandal involving investigations by regulators in at least 14 countries;
  2. Singapore’s Keppel Offshore & Marine Ltd $55m corruption scandal involving investigations by law enforcement officials in Singapore, USA and Brazil; and
  3. The German Fintech giant, Wirecard AG’s multi-billion dollar accounting fraud scandal involving investigations in countries such as Singapore, the Philippines, the Republic of Ireland, the United Kingdom and Germany.

Mutual Assistance in Criminal Matters Act (MACMA)

MACMA was introduced in Singapore at the turn of the millennium and symbolises Singapore’s commitment in combatting transnational crime. It provides a formal framework facilitating requests made to and from Singapore on a variety of matters including:

  1. the provision and obtaining of evidence;
  2. the making of arrangements for persons to give evidence or assist in criminal investigations;
  3. the recovery, forfeiture or confiscation of property in respect of offence; and
  4. the execution of requests for search and seizure.

Production orders

The provisions of MACMA have often been invoked to obtain production orders relating to things likely to be of substantial value to a foreign criminal matter such as banking and financial records.

A production order obtained under s22 MACMA has the effect of compelling a person who appears to be in possession of the things sought, to produce or give access to the same within a stipulated timeframe. Failure or refusal to do so without reasonable excuse can attract criminal liability.

Compliance with a production order is necessary even if the things sought are stored in a ‘cloud’ or located in servers thousands of miles from where they are remotely accessed. Confidentiality or even banking secrecy are not excuses for refusing compliance although material that is subject to legal privilege need not be disclosed.

A person required to comply with a production order can however seek a discharge or variation of the same. Such persons are prima facie entitled to inspect and take copies of Court documents filed in support of an application for a production order to consider if any grounds for challenge exists, such as bad faith on the part of the requesting state (BSD v Attorney-General [2019]).

Locating and taking evidence from witnesses

With witnesses being located all over the world, Singapore’s assistance can be sought in the locating of foreign witnesses and the taking of their evidence. These provisions are all the more relevant today with Covid-19 travel restrictions providing persons of interest with a legitimate reason to remain out of jurisdiction.

If a witness consents, a non-coercive approach can be adopted and their evidence can be recorded, with Singapore’s assistance, in the form of voluntary witness statements or affidavits. In this regard, Singapore’s assistance is rendered as part of reciprocal inter-agency co-operation and even prior to any foreign criminal proceedings being commenced.

Alternatively, evidence can be formally taken under s21 MACMA: where witnesses can be compelled to give evidence, answer questions and produce documents before a Magistrate in Singapore as though the witness were giving evidence on a charge against a person for an offence against the law of Singapore.

As a word of caution, while evidence recorded under MACMA is inadmissible in evidence for the purpose of any judicial proceedings in Singapore, a witness can still be prosecuted in Singapore for the offence of perjury.

Judicial review as a mode of challenge

As a corollary, decisions made pursuant to requests for MLA may in the appropriate circumstances be challenged by way of judicial review. This is especially so in the absence of any statutorily prescribed grounds for challenge.

For instance, in the case in AXY & ors v Comptroller of Income [2018], leave was sought to apply for judicial review on grounds of illegality and irrationality in respect of the Comptroller of Income Tax’s decision to issue production notices to three Singapore banks pursuant to an exchange of information (EOI) request made by the National Tax Service of the Republic of Korea. The Singapore banks were asked to disclose documents and banking information relating to five individuals and a group of companies.

Even though the challenge did not ultimately succeed, the Singapore Court of Appeal found that additional material that was not available to the Comptroller at the point in time that the decision was made can, in exceptional circumstances, be taken into account in assessing the legality of the decision. In that case, as the EOI process was conducted covertly without notice to the persons and entities in respect of whom information was sought, the persons of interest were only afforded the opportunity to raise issues to the Comptroller after his decision was made.

Indeed, there remains much room for the development of local jurisprudence as more challenges are brought to Court in respect of applications made under MACMA.

What’s next?

Currently, Singapore provides assistance under MACMA to countries which have entered into an agreement or treaty with Singapore to provide such similar assistance. Assistance may nevertheless be rendered in the absence of such an agreement if there is an undertaking of reciprocity that the requesting country will comply with a future request by Singapore for similar assistance in a criminal matter.

As a sure sign of things to come, on 22 July 2020 Singapore and France signed a MLA treaty marking Singapore’s first bilateral mutual legal assistance treaty since 2005 and the first with a country with a civil law system. With other MLA treaties in the pipeline, a clear path forward lies ahead in the fight against transnational crime.