In a recent Magistrate's Appeal, the Singapore High Court overturned the conviction of former law professor Tey Tsun Hang ("Tey") after finding that the gratification Tey had received was not an inducement, and that there was no objective corrupt element in the transaction. The Court accordingly acquitted Tey of the charges under section 6(a) of the Prevention of Corruption Act ("PCA").
The Appellant, Tey, was a former law professor at the National University of Singapore ("NUS"). He was convicted in the District Court for corruptly receiving six acts of gratification from one of his students at the material time, Darinne Ko Wen Hui ("Darinne"), as an inducement for showing favour in his assessment of Darinne's academic performance.
The four issues on appeal centred on:
(i) the admissibility of six statements made by the Appellant to various officers of the Corrupt Practices Investigation Bureau ("CPIB") during investigations between 5 April 2012 and 24 May 2012 (the "Statements");
(ii) whether NUS was a public body for section 8 of the PCA to apply;
(iii) whether the elements of each offence had been made out; and
(iv) whether the aggregate sentence was manifestly excessive.
The final issue was not considered since the conviction was overturned and the sentences were set aside.
Admissibility of six statements
The Statements were challenged by the Appellant on the following grounds:
(i) the Statements were procured by threats and inducements;
(ii) the Statements were made under oppressive circumstances; and
(iii) the combined effect of the Appellant's medical condition and side-effects of the psychoactive medication rendered the Statements involuntary.
In relation to the first ground, the High Court found that the Appellant's allegations of threats and inducements were not made out on the facts as he had failed to mention them to his counsel or the medical examiners whose medical reports he had relied on.
As for the second ground, the High Court found that the allegations of oppression, such as the pestering and frisking of the Appellant, or the room
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being too cold and stuffy, did not constitute oppression such that the Appellant's will was adversely affected when he made the Statements.
As regards the third ground, the High Court took the view that the Appellant had voluntarily given the Statements, notwithstanding his claim that he was supposedly suffering from acute stress disorder at the material time. Accordingly, the High Court concluded that the Statements were correctly admitted as evidence.
Whether NUS was a public body for section 8 of the PCA to apply
Section 8 of the PCA applies if:
(i) it is proved that the accused person received the acts of gratification;
(ii) the giver has or seeks to have any dealing with the employer of the accused person; and
(iii) the accused person is employed by a “public body” for the purposes of the Act.
If section 8 of the PCA applies, it will be presumed that the recipient believed that the giver was expecting to obtain a dishonest gain or advantage for the act of improper gratification and that the recipient had the guilty knowledge discussed below as the fourth element of a section 6(a) offence.
Section 8 of the PCA had to be interpreted by reference to the definition of a "public body" as found in section 2 of the PCA:
"a corporation is a public body if it “has power to act under and for the purposes of any written law relating to…public utility”.
The High Court found that NUS is a public body because it was an undertaking of public utility since NUS is open to the public for tertiary education and subject to the accountability framework in the National University of Singapore (Corporatisation) Act. The High Court also found that NUS is a corporation which has power to act under and for the purposes of the Corporatisation Act relating to public utility, namely, public tertiary education.
For the purposes of section 8 of the PCA, therefore, NUS is a public body, and the Appellant had to rebut the presumption that his receipt of the six acts of gratification was not made with the requisite mens rea.
Elements of each offence
The four elements of a section 6(a) offence are (i) the acceptance of gratification; (ii) the gratification was an inducement or reward; (iii) there was an objective corrupt element in the transaction; and (iv) the recipient accepted the gratification with guilty knowledge.
While it was accepted that the first element was made out, the High Court found that the gratification was not an inducement and there was no objective corrupt element in the transaction.
The evidence showed that Darinne was in love with the Appellant at the material time. On the facts, the High Court concluded that she was being exploited by the Appellant and did not have any intention to seek favour from the Appellant in her academic pursuits for any of the acts of gratification. The
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Appellant's disclosure of confidential information to Darinne could not have influenced her grades since he was not teaching any compulsory courses for her third and fourth years, and that she would be away on an exchange programme for the first half of her third year. It would have been more natural for Darinne to think that the Appellant had done so because he was returning her feelings of affection.
The Appellant's exploitation of Darinne was a breach of NUS policies and an abuse of his position as a lecturer. However, the High Court found that such morally reprehensible conduct was not legally wrong and did not amount to corruption under the PCA. The contemporaneous evidence showed there could not be an objective corrupt element and therefore, the requisite mens rea was not made out.
As to the last element of the offence, i.e. the guilty knowledge of the offender, the High Court expressed doubts about it as a matter of law. The High Court was of the view that the case law appeared inconsistent in the interpretation of this element and that allowing the subjective knowledge of the offender to come into play may lead to arbitrary results. The High Court, however, did not conclusively rule on this element as the discussion was made academic in the light of its findings above.
This decision sheds light on how the term "public body" is to be interpreted to include educational institutions that serve a public utility (namely, the provision of tertiary education). This has potentially far-reaching implications as the evidential burden of proof is reversed when section 8 of the PCA kicks in and there is a presumption of corruption.
However, the presumption is rebuttable if the accused is able to discharge his burden of proving on a balance of probabilities that his receipt of the gratification was not made with the requisite mens rea, which was what the High Court found in this case.
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