As part of wider reforms, Singapore has introduced a framework for DPAs to resolve criminal charges against companies for specified offences.
In the context of wider reform under the Criminal Justice Reform Act, Singapore has introduced a Deferred Prosecution Agreement (DPA) framework, enabling corporates (but not individuals) to reach agreement with the Public Prosecutor for the deferral of prosecution in exchange for the imposition of certain requirements.
A global model emerging?
This framework shares many features with DPA regimes in the UK and US, as well as those currently under consideration in Australia and Canada. Its introduction follows the high profile DPA entered into between Keppel Offshore & Marine (KOM) and the US authorities in the context of an FCPA corruption investigation involving a former agent of KOM in Brazil. This was a global resolution with the criminal authorities in the United States, Brazil and Singapore, which involved KOM paying fines of US$422 million, split between the three jurisdictions. Although the Singapore authorities took action against Keppel in the form of a conditional warning, the US DPA delivered a much more significant penalty than would have been achieved under Singapore criminal law.
Against this background, the newly introduced DPA regime will give the Singapore authorities greater flexibility in sanctioning corporates, to the extent that corporates can be prosecuted for the offence under Singapore criminal law. This remains difficult, as corporate criminal liability in Singapore is often founded on the identification principle (requiring an individual who is the company’s ‘directing mind and will’ to have the relevant criminal intent) without the broader corporate liability found, for example, in section 7 of the UK Bribery Act or vicarious liability under US criminal law.
Under the new regime, examples of the requirements that may be imposed in a DPA include payment of a financial penalty; victim compensation; charitable donations; disgorgement of profits; implementation of, or improvements to, a compliance programme; the appointment of a monitor; and co-operation in investigations. The requirements are a mix of similar requirements found in the UK and US regimes. The DPA must also be court sanctioned to become effective, with the court deciding that the DPA is in the interests of justice and that the terms of the DPA are fair, reasonable and proportionate. This, in particular, mirrors the requirements in the UK scheme. Another similarity with the UK framework is that DPAs will only be available in relation to prescribed offences, such as corruption and money laundering, rather than all crimes.
Availability and discretion
It is notable that the legislation does not provide for guidelines as to when a DPA will be considered appropriate, as was published in the UK in the form of a Code of Practice on DPAs issued by the Director of Public Prosecutions and the Director of the SFO. The absence of such guidance means that the factors that may impact on that decision, such as whether the company self-reported, are less clear. This may allow Singaporean authorities a greater degree of discretion as to when to offer a DPA, but it is likely that factors such as self-reporting, changes to the company’s management since the offending and co-operation with the authorities will impact upon the decision, as they do in other jurisdictions.