Dispute Resolution Singapore Client Alert April 2015 Tjong Mark Edward v. Public Prosecutor: Graft Acquittal Overturned by the Singapore High Court In a recent decision, the Singapore High Court held that corruption is possible even if the agent discussed the idea of a reward with the third party alleged to have been favoured only after acting in relation to his principal's affairs. The central inquiry was whether the agent in this case, Tjong Mark Edward ("Tjong"), who was the former Director of Business Development at ST Electronics (Info-Software Systems) Pte Ltd ("STE"), favoured a third party, Mujibur Rahman ("Mujibur"), in derogation of his duties to STE. Given that Tjong had to exercise his judgment in recommending Mujibur to STE and knew that his recommendations would be influential, it was sufficient that Tjong was coloured by the contemplation or implied understanding that some sort of reward would eventually be offered. Facts Tjong, who oversaw STE's business development in the South Asia region, was introduced to Mujibur, the managing director of a Bangladeshi firm that handled government contracts. Following Tjong's recommendation to STE, Mujibur was appointed as STE's agent in Bangladesh to help secure a contract with the Bangladeshi Police Department. Mujibur was successful and was paid 7% of the contract price as his fee. Mujibur later handed Tjong two signed blank cheques in Dhaka. Tjong filled in the amounts and deposited them into the bank account of his then-girlfriend. Tjong then received these amounts by way of two cheques issued by his then-girlfriend. Decision and Observations Tjong was charged with two counts of corruptly obtaining gratification as an agent under Section 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (the "PCA") in respect of the two sums he had received from Mujibur. The trial judge found an objective corrupt element based on the fact that Tjong had accepted money as part of a profit-sharing scheme, intending it to be his reward for having recommended Mujibur to be appointed STE's agent. However, the trial judge found that Tjong's explanation in respect of the second charge (i.e. that Tjong took the sum to help Mujibur with errands and to remit money to Mujibur's son in London) raised reasonable doubt as to its purpose. Tjong was therefore convicted on the first charge but acquitted on the second. On appeal, the High Court overturned Tjong's acquittal in respect of the second charge and convicted him on both charges. For further information please contact Andy Leck +65 6434 2525 firstname.lastname@example.org Tan Weiyi +65 6434 2689 email@example.com Lau Kah Hee +65 6434 2731 firstname.lastname@example.org Clarence Ding +65 6434 2662 email@example.com Baker & McKenzie.Wong & Leow 8 Marina Boulevard #05-01 Marina Bay Financial Centre Tower 1 Singapore 018981 www.bakermckenzie.com 2 Client Alert April 2015 Elements of an Offence Under Section 6(a) of the PCA To establish an offence under Section 6(a) of the PCA, it must be shown that:1 (i) gratification was accepted; (ii) the gratification was an inducement or reward (for any act, favour or disfavour to any person in relation to the recipient's principal's affairs or business); (iii) there was an objective corrupt element in the transaction; and (iv) the recipient accepted the gratification with guilty knowledge. The second and third elements are conceptually different, but are part of the same factual enquiry, namely "whether the recipient received the gratification believing that it was given to him as a quid pro quo for conferring a dishonest gain or advantage on the giver in relation to his principal's affairs". 2 The High Court, in assessing this, reduced the arguments on appeal into two broad issues. Issue 1: Whether Tjong Favoured Mujibur in Relation to STE's Affairs To prove corruption in cases where gratification was received after the allegedly corrupt conduct had occurred, the evidence must at least lead the court to infer that the idea of gratification was already operating in the accused's mind at the time the allegedly corrupt conduct occurred. In other words, there must be some "advantage gained or hoped to be gained by the giver".3 If Tjong had no contemplation that he might be getting a reward when he recommended Mujibur to STE, any subsequent receipt of gratification could well be a gift or, at worst, a breach of an employment contract or a code of conduct or ethics. Such a situation could not amount to corruption. On the facts, the High Court was of the view that there was enough circumstantial evidence to support the inference that Tjong did contemplate a reward. They were as follows: Tjong was instrumental in Mujibur's appointment as an agent. He must have known of the level of influence he enjoyed in respect of STE's affairs in Bangladesh, as he was STE's sole representative there. His positive recommendation therefore carried much weight. Although it is not corrupt to reward someone for doing what he was already supposed to do, Tjong went beyond what a business development manager would do in helping Mujibur win the project tender. The events that happened after indicated that Tjong was motivated by more than just altruism or a sense of duty to STE. Tjong must have known that sharing of profits was a common practice in Bangladesh after spending time there. Tjong had asked no questions and shown no hesitation when Mujibur offered to share his agent fee. In fact, Tjong told Mujibur to speak to him in Dhaka and to bring his chequebook along. This showed the underlying unspoken 1 Kwang Boon Keong Peter v. Public Prosecutor  2 SLR(R) 211 at , and later reiterated by the Court of Appeal in Public Prosecutor v. Leng Kah Poh  4 SLR 1264 at . 2 Tey Tsun Hang v. Public Prosector  2 SLR 1189 at , and quoted in Public Prosecutor v Leng Kah Poh  4 SLR 1264 at . 3 Sairi bin Sulaiman v. Public Prosecutor  2 SLR(R) 794 at . 3 Client Alert April 2015 understanding between them and demonstrated that Tjong's conduct was not entirely above board. Although the High Court also observed some other factual circumstances, it held that they were inconclusive and did not prevent corruption from being established. These other facts are as follows: The lack of an agreement or discussion does not prevent a finding of corruption. Corruption can be disguised as rewards after the event. Corruption can be found in both one-off and continuous dealings. STE's subsequent acts of appointing Mujibur on his merits did not override any corruption that Tjong had committed. The fact that Tjong could account for Mujibur's qualities was inconclusive. It was possible that by favouring Mujibur, Tjong did not bring forward other worthy candidates for consideration. Parties can approach a transaction with different frames of mind. Mujibur's characterisation of the reward as a legitimate profit-sharing scheme did not change the fact that the idea of a reward operated in Tjong's mind when he facilitated Mujibur's appointment. On the facts, the High Court found that Tjong had favoured Mujibur in derogation of his duties to STE. Issue 2: Whether Tjong Accepted the Two Cheques as a Reward for Recommending Mujibur to STE Mujibur's and Tjong's explanations of the purpose of the cheques were completely different. Mujibur explained that it was a sharing of profits, whilst Tjong insisted that the cheques were for him to run Mujibur's "errands". Mujibur's explanation was found to be far more consistent. Tjong's explanation, on the other hand, was riddled with difficulties and inconsistencies that could not be satisfactorily explained. The High Court held that the trial judge had erred in elevating the mere possibility that the second cheque was for paying the tuition fees of Mujibur's son, as contended by Tjong, into a reasonable doubt. Moreover, Tjong failed to report the gifts to STE, breaching his employment contract. The contravention of rules designed to prevent bribery would "invariably" mean that the transaction is objectively corrupt.4 Tjong's explanation of the cheques was found to be untenable, and was rejected by the High Court. Sentencing In respect of the first charge, the High Court affirmed the sentence of 8 weeks' imprisonment together with a penalty of S$57,386.67 (in default, 3 months' imprisonment). This was on the basis that Tjong was in a position of influence, the gratification received was substantial and Tjong acted with premeditation and deliberation in trying to cover his tracks by disguising the sum received. Although STE did not suffer any direct monetary loss, Tjong's duty to STE was nevertheless compromised. 4 Chan Wing Seng v. Public Prosecutor  1 SLR(R) 721 at . 4 Client Alert April 2015 In respect of the second charge, the High Court took the view that the same factors regarding the first charge applied equally to the second charge. The High Court therefore sentenced Tjong to 4 weeks' imprisonment (to run consecutively with the imprisonment term for the first charge) together with a penalty of S$30,000 (in default, 6 weeks' imprisonment). The High Court held that consecutive imprisonment terms were necessary as the two charges were in reality one transaction of corruption. Moreover, the transaction involved a cross-border commercial element, and STE was a governmentlinked entity. The harm caused by the offences included the possible adverse impact on the reputation and integrity of Singapore companies and of Singapore generally. Comments This case establishes that the lack of an agreement or discussion prior to the event does not prevent a finding of corruption from being made. It can be established even if an agent discussed the idea of a reward with the third party only after acting in relation to his principal's affairs. The crucial inquiry is whether the agent, in carrying out his duties, showed favour to the third party or was tainted by the contemplation of a reward. If not, the meaning of corruption would be too wide and might turn innocuous gifts or mere contractual or ethical breaches into crimes. ©2015 Baker & McKenzie. All rights reserved. Baker & McKenzie International is a Swiss Verein with member law firms around the world. In accordance with the common terminology used in professional service organizations, reference to a “partner” means a person who is a partner, or equivalent, in such a law firm. Similarly, reference to an “office” means an office of any such law firm. This may qualify as “Attorney Advertising” requiring notice in some jurisdictions. Prior results do not guarantee a similar outcome.