The presumption of guilt in the PCA and MDA: Why the withdrawal of corruption charges against Iswaran contradicts Singapore’s zero-tolerance policy
The AGC’s decision to downgrade charges against Iswaran raises serious concerns, especially when considering the legal presumptions in Singapore’s Misuse of Drugs Act (MDA) and Prevention of Corruption Act (PCA). Both laws shift the burden of proof to the accused, making the AGC’s reasoning for dropping the PCA charges highly questionable.
Published on 27 September 2024
The Attorney-General’s Chambers (AGC) recently withdrew corruption charges against former Singaporean transport minister S Iswaran, citing challenges in prosecution.
The AGC explained that proving corruption under the Prevention of Corruption Act (PCA) would be difficult, particularly as both Iswaran and property tycoon Ong Beng Seng (OBS) would likely avoid implicating themselves.
This explanation is perplexing, particularly when considering the legal framework provided under Section 8 of the PCA, which mirrors the presumption of guilt often applied in drug trafficking cases.
Under the PCA, once a public official accepts any form of gratification, corruption is presumed unless the official can prove otherwise.
This presumption shifts the burden of proof to the accused, much like in drug trafficking cases, where possession of a certain quantity of drugs triggers a presumption of trafficking, as detailed in Singapore’s Misuse of Drugs Act (MDA).
Former Prime Minister Lee Hsien Loong reaffirmed Singapore’s zero-tolerance approach to corruption in Parliament in August last year, saying, “We firmly believe that to maintain an honest political system and for the people to continue to trust the PAP, we must deal with issues transparently.”
“Therefore, when anyone, including Ministers or MPs, are involved in corruption or illegal behaviour, there is zero tolerance, and we will investigate fully. If the investigation finds that there was no wrongdoing or conflict of interest, the matter would be closed and those involved exonerated. If the investigation shows that there is misconduct, they would be dealt with the full force of the law.”
The PCA’s Section 8 is a cornerstone of this zero-tolerance policy. It ensures that public officials who receive any form of gratification must rebut the presumption of corruption, placing the burden of proof on them.
This provision is highlighted on the Corrupt Practices Investigation Bureau (CPIB) website under the heading “Ensuring Incorruptibility of the Public Service”, where it states: “The PCA also provides for a presumption where any gratification given or received by a person in the employment of the Government or of a public body is deemed corrupt.”
“The burden of proof to rebut the presumption lies with the person. In addition, public officers are expected to report any case where gratification is offered, accepted or demanded.” This demonstrates how integral Section 8 is to safeguarding the integrity of Singapore’s public service, underscoring its role as a key pillar in the country’s zero-tolerance approach to corruption.”
Yet, the AGC did not appear to place much, if any, emphasis on Section 8 when dealing with Iswaran’s case, despite this provision being a powerful legal tool designed to combat corruption.
This omission becomes more striking when experienced lawyers highlight that it is very difficult to rebut a presumption at law, especially in cases involving the PCA.
It is rare for the defense to successfully challenge such presumptions, making it puzzling why Section 8 was not given more importance in this prosecution.
Corruption vs. Drug Trafficking: Legal Parallels
Section 8 of the PCA operates in a similar fashion to drug trafficking cases under the MDA. In both instances, the law presumes guilt once certain thresholds are met—gratification in corruption cases, and possession in drug trafficking cases.
In Iswaran’s case, the AGC initially charged him under Section 6(a) of the PCA, which should have triggered the presumption of corruption under Section 8. However, the charges were later downgraded to Section 165 of the Penal Code, which deals with public officials accepting gifts without requiring proof of corrupt intent, and carries significantly lighter penalties.
The AGC’s reasoning for withdrawing the PCA charges—that both Iswaran and Ong might deny allegations of corruption—is juvenile and preposterous.
When the AGC decided to prosecute Iswaran, it must have been fully aware that both parties would deny the charges.
In fact, this denial is precisely why the PCA’s Section 8 exists: to shift the burden of proof onto the accused, making it their responsibility to disprove the presumption of corruption.
By claiming that a denial of guilt from both parties would complicate prosecution, the AGC’s justification becomes nonsensical. It is inconceivable that this was not anticipated at the start, making the decision to drop the charges difficult to justify.
To illustrate how the presumption of guilt is applied in drug trafficking cases, we can look at the 2018 Court of Appeal ruling in Zainal bin Hamad v Public Prosecutor.
The court noted that once possession of a certain quantity of drugs is established, the presumption of trafficking applies, shifting the burden to the accused to prove otherwise.
The judgment emphasized that “it was incumbent on [Zainal] to adduce evidence to raise a reasonable doubt” and that mere denials or weak explanations are insufficient to discharge this presumption.
Without credible evidence to counter the presumption, the court ruled that the accused was rightly convicted.
This demonstrates that once the presumption of guilt is triggered, the defense must provide substantial evidence to rebut it—something seldom successfully achieved.
The Decision to Downgrade to Section 165: A Simpler but Less Severe Offence
Downgrading the charges to Section 165 of the Penal Code, a provision used for the first time in Singapore’s 153-year legal history since the Penal Code was introduced in 1871, further complicates public understanding of this case.
Section 165 focuses on the act of a public servant accepting valuable items from individuals connected to their official duties without needing to prove corrupt intent.
Although the charges against Iswaran under this section are easier to prove than corruption under the PCA, the offence carries significantly lighter penalties. The law targets improper acceptance of gifts, but without the severity or focus on corrupt intent seen in the PCA.
This shift towards a lesser charge under Section 165 is seen as lenient, especially given the nature of the allegations.
While the AGC cited “litigation risks” in pursuing the PCA charges, the downgrade effectively softens the seriousness of the offence. Iswaran now faces a maximum sentence of two years’ imprisonment under Section 165, compared to the seven years possible under the PCA.
However, the prosecution has indicated that they will be seeking a sentence of 6-7 months for the four amended charges under Section 165, and one charge under Section 204A for obstruction of justice, which carries a maximum penalty of seven years’ imprisonment, a fine, or both.
This raises further questions about whether public trust and justice are being adequately served. This approach contrasts sharply with Singapore’s zero-tolerance stance, especially considering the case of Wee Toon Boon, who was handed a six-month sentence simply for accepting roofing worth S$3,500.
In Iswaran’s case, the gifts allegedly received were far more extravagant—S$384,000 in gifts from Ong Beng Seng, and S$18,920.94 from David Lum.
The comparatively lenient sentence being sought, despite the substantial value of the gifts and the scope of the allegations, underscores a disconnect between the rhetoric of zero tolerance and the actions taken in this case.
This discrepancy is all the more striking when placed beside Wee’s case, where a much smaller gift led to a sentence of six months.
Public’s expectation on transparency and accountability
At its core, the public expects transparency and accountability, especially in cases involving senior public officials like Iswaran.
The decision to withdraw stronger corruption charges, particularly when Section 8 of the PCA could have been invoked, risks eroding public confidence in Singapore’s administration of justice.
When a senior public official is implicated in a corruption case, the public expects rigorous legal standards to apply, particularly given the strong anti-corruption stance that Singapore is known for.
The zero-tolerance approach to corruption in Singapore is founded on clear and consistent application of the law.
The AGC’s decision to downgrade corruption charges against S Iswaran, despite the legal mechanisms available under Section 8 of the PCA, contrasts starkly with how the law handles drug trafficking cases under the MDA.
Both legal frameworks share the goal of combating severe societal issues, and both rely on presumptions that shift the burden of proof to the accused when possession or gratification is established.
By downgrading the charges to a simpler offence under Section 165, the AGC risks undermining the consistency and integrity of Singapore’s legal system, raising questions about whether justice was truly served in this case.
Why did AGC drop corruption charges against Iswaran despite PCA’s section 8’s presumption clause?
Why did the AGC withdraw corruption charges against Iswaran despite pursuing them twice?
Attorney-General’s Chambers cites evidentiary risks in reducing Iswaran’s corruption charges
Sudden guilty plea: Iswaran’s reversal stuns the public, yet proceedings unfold with eerie calm
Former minister S Iswaran to be sentenced on 3 October
Prosecution seeks 6-7 months jail for former minister S Iswaran, defence requests maximum of 8 weeks
Why did AGC drop corruption charges against Iswaran despite PCA’s section 8’s presumption clause?
Why did the AGC drop corruption charges against former minister S Iswaran despite Section 8 of the PCA, which presumes corruption when public officials receive gifts? This unexpected decision raises serious questions about transparency, accountability, and the use of anti-corruption laws.
In an attempt to explain why corruption charges against former transport minister S Iswaran under the Prevention of Corruption Act (PCA) were dropped, the Attorney-General’s Chambers (AGC) cited challenges in prosecuting him under the act.
The AGC argued that proving corruption would be difficult, given that both Iswaran and property tycoon Ong Beng Seng would be unlikely to implicate themselves.
This explanation is surprising, given the provisions of Section 8 of the PCA. For those charged under Sections 5 or 6, the law presumes corruption once a public officer receives any form of gratification, placing the burden on the accused to disprove corrupt intent.
Since Iswaran was charged with two counts of corruption under Section 6(a), read with Section 7 of the PCA, the legal framework should have facilitated, rather than complicated, the prosecution’s task in this case.
More perplexing is the AGC’s decision to amend the charges, ultimately charging Iswaran under Section 165 of the Penal Code rather than under the PCA, effectively removing the corruption charges altogether.
Notably, this is the first time in Singapore’s 153-year history that Section 165 has been invoked. Section 165 addresses the acceptance of valuable items by public officials without requiring proof of corrupt intent, and it carries significantly lighter penalties—just two years’ imprisonment compared to the seven years possible under the PCA for corruption charges.
While the AGC cited “litigation risks” in proving the PCA charges beyond a reasonable doubt, this explanation seems to sidestep the fact that the PCA presumes corrupt intent once gratification is accepted by a public official.
The AGC also stated to the media, “AGC also considered whether the amendment would lead to a fair and just outcome that is in line with the public interest.”
But is the public interest better served by reducing the severity of the charges? Or does this decision represent an overly cautious approach to a case that, on the surface, appears to meet the conditions for prosecution under the PCA?
The AGC’s decision becomes even more questionable when considering the total value and scope of the gifts involved.
These gifts, valued at over S$218,000 from Ong alone, were not casual or one-off gestures but involved high-value items, including tickets to the Singapore F1 Grand Prix, football matches, and exclusive theatre performances, alongside luxury golf equipment, expensive whisky, and a high-end bicycle.
From November 2015 to December 2021, Iswaran allegedly received 24 valuable gifts exceeding S$384,000 (US$285,000) in value from Ong, often tied to the business dealings related to his official role as Chairman of the F1 Steering Committee.
Similarly, between November 2021 and November 2022, Iswaran allegedly accepted several expensive items worth S$18,920.94 from David Lum Kok Seng, managing director of construction firm Lum Chang Holdings (LCH), including whisky, wine, and golf equipment, during a period when Mr Lum’s company was managing a major contract for the Land Transport Authority.
These transactions were far from casual or isolated. Iswaran did not merely receive a token gift on a single occasion—he received a series of high-value items over several years, all from individuals with business interests directly tied to his official roles, raising significant concerns about conflicts of interest.
Given the substantial value and frequency of these gifts, Iswaran’s acceptance of them is far from a minor infraction that Section 165 might traditionally address.
This is especially concerning when considering that civil servants in Singapore are prohibited from retaining gifts worth more than S$50 and must declare any gifts received from external stakeholders to their permanent secretaries.
Iswaran’s failure to report these substantial gifts only heightens concerns about the AGC’s decision to amend the charges to the lesser offence.
While the AGC’s caution in considering “litigation risks” is understandable, the presumption of corruption under Section 8 of the PCA would have shifted the burden to Iswaran to prove that these extensive gifts were not corruptly given.
In this context, the unprecedented use of Section 165 seems out of place, given the clear legal mechanisms provided under the PCA for such cases.
A comparison with the case of Wee Toon Boon, the former Minister of State for the Environment, is instructive.
In 1975, Wee was found guilty on five charges of corruption, similarly under Section 6(a) of the PCA, and was sentenced to four years and six months in prison and fined S$7,023—later reduced to 18 months upon appeal after a three-year sentence for one charge was quashed.
The judge ruled that Wee had failed to cast reasonable doubt and concluded, on the balance of probabilities, that he accepted gratifications as rewards for favours shown.
Notably, Wee received a six-month sentence simply for accepting S$3,500 (roughly S$11,410 in 2023, adjusted for inflation) worth of galvanized roofing for his house.
Given the overlapping relationships between Iswaran, Ong, and Lum during Iswaran’s time in office and the undeniable acceptance of extravagant gifts, it raises the question: why is it considered challenging to prosecute Iswaran, given the presumption of corruption in Section 8 of the PCA?
Considering the above, Deputy Attorney-General Tai Wei Shyong’s assertion in court that there was a strong basis for originally bringing the corruption charges appears valid.
Therefore, it is baffling and difficult to understand why the AGC chose to withdraw the charges at the eleventh hour, citing possible difficulties when the burden of proof is not on its side. Equally puzzling is how Iswaran, after professing his innocence for months, so unexpectedly agreed to plead guilty to the amended charges.
Public expectations for transparency and accountability are understandably high in a case involving a senior public official. The decision to downgrade the charges, particularly when stronger anti-corruption laws were available, risks undermining public confidence in the judicial process.
Why did the AGC withdraw corruption charges against Iswaran despite pursuing them twice?
The AGC reduced corruption charges against former Transport Minister S Iswaran, citing challenges in proving corrupt intent. This raises the key question: Why did the AGC press corruption charges twice if these evidentiary difficulties were known from the start, only to amend them at the last minute?
In an unexpected turn of events, the Attorney-General’s Chambers (AGC) reduced the corruption charges against former Transport Minister S Iswaran to lesser offences under Section 165 of the Penal Code just before what would have been a historic trial of a political officeholder.
Iswaran was initially charged in January 2024 for allegedly receiving gifts worth approximately S$384,000 from Ong Beng Seng in exchange for advancing Ong’s business interests, particularly related to the Singapore Grand Prix.
Additional charges followed in March 2024, accusing Iswaran of receiving valuable items—including whisky bottles, golf clubs, and a Brompton bicycle—from David Lum Kok Seng, managing director of Lum Chang Holdings.
These items, valued at approximately S$19,000, were linked to Iswaran’s role as Transport Minister, bringing the total value of gifts to over S$400,000 and the total number of charges to 35, including corruption and obstruction of justice.
However, just before the trial was set to begin, the AGC made a significant decision to amend the charges. The more serious corruption charges under the Prevention of Corruption Act were reduced to lesser offences under Section 165 of the Penal Code, which deals with public servants receiving valuable gifts without corrupt intent.
As a result, the corruption charges were effectively removed, and Iswaran pleaded guilty to the revised charges after months of maintaining his innocence.
In its statement to the media on Tuesday, the AGC cited significant challenges in proving the original corruption case beyond a reasonable doubt.
It stated that both Iswaran and businessman Ong Beng Seng would need to implicate themselves to establish corrupt intent, posing litigation risks.
While the AGC provided reasons for dropping the charges against Iswaran, it raises an important question: Why did the AGC press corruption charges under the Prevention of Corruption Act (PCA) not once but twice if these evidentiary challenges were known from the start?
The AGC’s rationale—difficulty in proving corrupt intent—should have been foreseeable when the charges were initially brought forward.
Ong and Iswaran, including Lum, all had a vested interest in denying the allegations, which would make conviction difficult. Nevertheless, the AGC proceeded with the charges twice, only to backtrack on the day of the trial itself, according to the prosecution, when asked in court by Justice Vincent Hoong.
If these concerns of litigation risks were apparent from the outset, why were the charges filed under the more severe PCA in the first place? Was this a mistake?
Apparently not, as Deputy Attorney General Tai Wei Shyong clarified in court that the corruption charges against Iswaran were not withdrawn but amended, and reiterated that there was a strong basis for why they were originally brought.
That begs the question: Why amend the charges then?
This puzzling approach mirrors the AGC’s handling of the Keppel Offshore & Marine (KOM) bribery case, where six senior executives were issued stern warnings but not prosecuted after five years of investigation.
Minister Indranee Rajah explained in Parliament that the AGC and the Corrupt Practices Investigation Bureau (CPIB) faced similar evidentiary difficulties, citing insufficient proof to establish guilt beyond a reasonable doubt.
The KOM case involved cross-border transactions, which authorities claimed made it difficult to secure witness testimony or documentary evidence that could hold up in court.
Despite a U.S. investigation resulting in a Deferred Prosecution Agreement (DPA) with Keppel admitting to the charges against it and a US$422 million fine, the AGC found that references to individual actions in the DPA were insufficient to support prosecution in Singapore.
Foreign witnesses allegedly refused to testify, and key individuals denied knowing that commissions paid were used as bribes.
Ultimately, the AGC issued stern warnings as an “in-between” measure, suggesting that while there was insufficient evidence for prosecution, the individuals involved were not entirely “off the hook.”
The similarities between the Iswaran case and the KOM scandal raise broader questions about the AGC’s consistency in applying its prosecutorial discretion. In both cases, the decisions to scale back or drop charges are said to be due to alleged insufficient evidence after lengthy investigations.
But shouldn’t public prosecutions prioritize ensuring that justice is being sought by allowing the facts to be fully examined in court, even if securing convictions isn’t guaranteed—especially to promote public awareness and reinforce Singapore’s strong zero-tolerance policy on corruption?
In Iswaran’s case, the decision to amend the charges could be seen as a pragmatic move by prosecutors to avoid a lengthy and costly trial with uncertain outcomes. However, for the public, this creates a perception of inconsistency in how different cases are pursued.
This perception is reinforced by the AGC’s decision to prosecute opposition leader Pritam Singh for allegedly lying under oath to a parliamentary committee, relying solely on the testimony of a former Member of Parliament who had confessed to lying.
Why does Pritam Singh’s case appear more straightforward to convict than Iswaran’s, without similar evidentiary challenges, when the prosecution primarily relies on verbal testimony? In contrast, in Iswaran’s case, the gifts from Ong and Lum were undeniable and proven, yet the AGC chose to amend the charges due to difficulties in proving corrupt intent.
Iswaran is set to face sentencing on 3 October 2024, with the prosecution seeking 6-7 months of imprisonment while Iswaran’s defence is seeking a maximum term of 8 weeks.
Regardless of the sentence, the fundamental question remains: Why did the AGC pursue corruption charges in the first place, only to drop them at the last minute, despite citing evidentiary concerns?
There is "the sense that law is nothing more than partisan politics," . "And I think that's the dangerous place we find ourselves in right now."
No comments:
Post a Comment