All questions

Introduction

Regulatory authorities empowered to investigate and prosecute corporates include the following:

  1. Accounting and Corporate Regulatory Authority (ACRA), which regulates business registration, financial reporting, public accountants and corporate service providers.2 ACRA officers have the power to examine any persons reasonably believed to be acquainted with the facts or circumstances of a case and to require any person to furnish information or documents.3 Errant corporates and directors may be offered composition fines in lieu of prosecution and if this offer is not accepted, may be prosecuted in court.4
  2. Singapore Police Force, which has broad investigative powers under the Criminal Procedure Code (CPC),5 including to enter premises without a warrant, require the attendance of a witness, record statements and conduct searches to retrieve evidence. Within the police force, the specialised Commercial Affairs Department (CAD) investigates commercial and financial crimes.6
  3. Monetary Authority of Singapore (MAS), the central bank of Singapore. MAS regulates and supervises financial institutions (FIs) through, among others, the Securities and Futures Act (SFA), the Financial Advisers Act (FAA) and the Singapore Code on Take-overs and Mergers, and enforces the civil penalty regime for market misconduct. MAS officers may require a person to render reasonable assistance in or appear for investigation,7 or require any person to provide information or produce books relating to any matter under investigation.8 They may also enter premises without a warrant.9 Errant corporates and directors may face civil penalties, prohibition orders or licence revocations.10 Through the Joint Investigations Arrangement, CAD and MAS cooperate to co-investigate offences under the SFA and FAA.11 On 2 July 2021, MAS issued the Consultation Paper on Proposed Amendments to MAS' Investigative and Other Powers under the Various Acts.12 The proposed amendments seek to enhance MAS's investigative powers, including, for instance, recording statements from persons at the examination and obtaining a court warrant if a person fails to appear for examination with no reasonable cause.
  4. Singapore Exchange Ltd (SGX), which is both a commercial entity and the market regulator. SGX carries out its regulatory functions via an independent subsidiary, Singapore Exchange Regulation Pte Ltd (SGX RegCo). SGX RegCo is empowered to investigate infractions of the Listing Rules and to take appropriate disciplinary actions for violations.13 SGX RegCo's powers of enforcement were expanded in August 2021 to enable swifter enforcement outcomes.14
  5. Competition and Consumer Commission of Singapore (CCCS), which administers and enforces the Competition Act, investigates practices that are anticompetitive, and protects consumers.15 CCCS may require any person to produce documents or information it considers relevant to investigations,16 and may enter premises without a warrant.17 It may also issue directions to require a business to stop or modify errant activity or conduct, and can impose financial penalties on non-compliant corporates.18
  6. Corrupt Practices Investigation Bureau (CPIB), which investigates corruption offences across both public and private sectors.19 CPIB officers are empowered20 to arrest, conduct a premise search or seize evidence without warrant if there is credible information or reasonable suspicion that a corruption offence has been committed.
  7. Personal Data Protection Commission (PDPC), which administers and enforces the Personal Data Protection Act 2012 (No. 26 of 2012) (PDPA). The PDPC implements policies and develops advisory guidelines to promote the protection of personal data. The PDPC may require any person to produce a specified document or information it considers relevant to investigations,21 and may enter premises without a warrant.22 It also reviews corporations' data protection policies and may issue directives or decisions to ensure compliance.23 The PDPC may issue decisions, warnings, financial penalties or further directions to errant organisations.24

Following investigations, the Attorney-General's Chambers (AGC), which has oversight of all prosecutions, may prosecute potential offenders in court.

Corporates under investigation should always cooperate with the authorities. Various statutes contain provisions penalising a lack of cooperation. For instance, Chapters X and XI of the Penal Code (PC) penalise the giving of false evidence25 and the destruction of documents.26

Conduct

i Self-reporting

Singapore's legislative and regulatory framework adopts a disclosure-based regime.

Rule 703 of the Listing Manual (LM) obliges companies listed on the Singapore Exchange to make timely disclosure of any information a listed entity has concerning itself, its subsidiaries or associated companies that is either 'necessary to avoid the establishment of a false market in [its] securities' or that 'would be likely to materially affect the price or value of its securities'. Non-compliance is an offence if intentional or reckless.27 Directors can be prosecuted in their personal capacity if it is proven that the non-compliance was committed with their 'consent or connivance' or is attributable to their neglect.28

Complementing the LM is the revised Code of Corporate Governance (the Code), issued by MAS and applicable to listed companies. Central to the Code is the 'comply or explain' concept.29 Thus, while variations to the Code are permitted, companies must 'explicitly state and explain'30 how their varied practices are 'consistent with the aim and philosophy' of the principles set out in the Code.31

Separately, FIs and payment service providers under mandatory notices issued by MAS must also self-report. FIs are required to report to MAS misconduct committed by their representatives.32 FIs are also required to undertake internal investigations into their representatives' conduct and to submit an annual nil return where there has been no instance of reportable misconduct during the financial year. Failure to comply attracts criminal penalties.33

More broadly, self-reporting is also generally required to counter money laundering and terrorist financing.34

In respect of competition law matters, CCCS has a leniency programme that offers different levels of benefits to businesses, depending on whether they are the first to come forward with information about cartel activity or whether investigations have already commenced when they come forward.35

Where a business is the first to provide evidence of cartel activity and does so before CCCS has commenced an investigation, it can be entitled to immunity from financial penalties, provided the business satisfies certain stipulated conditions.36

If a business is the first to come forward seeking leniency and satisfies all the conditions but does so only after CCCS has started an investigation, it would not qualify for immunity. However, it may still qualify for a reduction of up to 100 per cent of the financial penalties.37

If a business is not the first to come forward, or if it initiated the cartel activity or coerced another party to join the cartel's activity, that business may still be granted a reduction of up to 50 per cent of the financial penalties if it comes forward before CCCS issues a notice of a proposed infringement decision under the Competition Act. However, the business will still need to comply with the other stipulated conditions.38

CCCS also operates a 'leniency plus' programme. This incentivises businesses that cooperate with CCCS in a cartel investigation in one market to inform it of their participation in a separate cartel in another market. Businesses that qualify for this may be granted leniency in respect of the second market and also receive a reduction in the financial penalties in the first market.39

For offences where a deferred prosecution agreement (DPA) is available,40 self-reporting may be a factor considered in the prosecution's decisions on whether to enter into a DPA and on the conditions or any penalty imposed therein.

ii Internal investigations

A business can conduct its own internal investigations.

Internal investigations typically involve conducting interviews with relevant persons and the review of evidence.41 External third parties such as lawyers, accountants, forensic investigators and computer experts often assist in the investigations.

Depending on the seriousness and nature of the matter, individuals being interviewed or whose conduct is being investigated may choose to engage their own lawyers.

From the company's perspective, if there are reasonable grounds to suspect that an internal investigation may lead to legal proceedings, it would be prudent to retain lawyers at the earliest stage. This allows the investigation to be conducted with the benefit of legal advice and assists the company in asserting privilege over matters relating to the investigation.

A key issue that often arises is the extent to which legal professional privilege can be maintained during internal investigations. This was considered in the case of Skandinaviksa Enskilda Banken AB (Publ), Singapore Branch v. Asia Pacific Breweries (Singapore) Pte Ltd and other appeals42 (Skandinaviska).

In Skandinaviska, a company, Asia Pacific Breweries (Singapore) (APBS), constituted a special committee comprising external auditors and lawyers to investigate and review its internal controls after a fraud perpetrated by its finance manager. Although draft reports were prepared by the external auditors, a final report was never issued. The Court of Appeal considered whether the draft reports submitted by the auditors to APBS were protected by legal professional privilege.

Legal advice privilege

The Court of Appeal accepted that communications to and from a third party were not protected by legal advice privilege and the auditors would not be regarded as agents of communication for the purposes of legal advice privilege.

That said, the Court of Appeal endorsed the broader approach laid down by the Australian Federal Court in Pratt Holdings Pty Ltd v. Commissioner of Taxation43 (Pratt Holdings), which focused on the nature of the function the third party performed, rather than the nature of the third party's legal relationship with the party that engaged it.

The Court of Appeal did not have to decide whether the draft auditors' report was subject to legal advice privilege as the issue was not argued by APBS's counsel.

In the recent English Court of Appeal decision of Regina (Jet2.com Ltd) v. Civil Aviation Authority (Law Society Intervening) (Jet2),44 the English Court of Appeal confirmed that the 'dominant purpose' test applied to legal advice privilege, which is in line with the broad view as advanced in Pratt Holdings. While the position appears to be settled in the United Kingdom following Jet2, it remains to be seen whether the Singapore courts would choose to adopt a similar approach in subsequent cases. That said, bearing in mind that the Court of Appeal in Skandinaviska in fact strongly endorsed the broad approach in Pratt Holdings,45 it is likely that our courts will focus on the nature of the function the third party performed, rather than the nature of the legal relationship between the parties.46

Litigation privilege

In Skandinaviska, the Court of Appeal found that the dominant purpose of the draft reports at the time they were created was in aid of litigation. This was influenced by the fact that external auditors and a legal adviser had been appointed to discover and quantify the financial impact of the fraud and to determine APBS's potential liability. As litigation was imminent and 'foremost in the mind' of APBS, these communications were protected by litigation privilege.47

In-house counsel

Under the Evidence Act, legal advice privilege extends to communications with in-house counsel made for the dominant purpose of seeking legal advice.48

Waiver and limited waivers

Various statutes recognise that the powers to compel disclosure of documents and information to an investigating body do not extend to communications protected by legal professional privilege. The Singapore High Court has also held that statutes will not be regarded as revoking legal advice privilege unless that is expressly provided for or abrogated by necessary implication.49

Where internal investigation reports are submitted to regulators, it is important to take steps to maintain and not inadvertently waive privilege at any stage50 and to consider whether the report can be submitted to regulators on a 'limited waiver of privilege' basis and, if so, what the scope of this waiver should be.

iii Whistle-blowers

At present, there is no overarching legislation in Singapore protecting whistle-blowers.

However, different pieces of legislation contain provisions affording some protection. For instance, the Prevention of Corruption Act (PCA)51 and the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (CDSA)52 afford anonymity to whistle-blowers. Similarly, the identity of whistle-blowers on workplace safety hazards is also protected by statute.53 In the implementation of CCCS's leniency programme, CCCS will keep the identity of whistle-blowers confidential.54 Under the Companies Act, auditors are protected from defamation suits and liability when reporting fraud in good faith.55 The Terrorism (Suppression of Financing) Act (TSOFA) also protects the identity of whistle-blowers.56

It is rare for whistle-blowers to be rewarded by means of legislative provision. Two examples are found in competition matters,57 and on information relating to tax evasion.58

The Code requires listed companies to publicly disclose and clearly communicate to employees the existence of any whistle-blowing policy and the procedures for raising concerns of this nature.59

SGX RegCo mandates that issuers establish and maintain a whistle-blowing policy, which must keep the identity of the whistle-blower confidential and ensure that the whistle-blower is protected from reprisals.60 Since 1 January 2022, issuers have been required to state in their annual reports that they have such a whistle-blowing policy in place, and provide an explanation of how they have complied with certain key requirements, such as having independent oversight of the policy and commitment to protecting the identity of whistle-blowers.61

Generally, all companies should have a proper whistle-blowing policy in place that provides an independent avenue for whistle-blowing and assurance that there will be no reprisal actions taken against genuine whistle-blowers. However, in respect of frivolous or false complaints, the policy should provide for the potential ramifications.

Other than internal whistle-blowing, affected persons can also report directly to the relevant authorities. This is not uncommon, particularly for employment-related issues. While making a false report to the authorities is an offence, whistle-blowing done in good faith is unlikely to be regarded as a false report.62

Enforcement

i Corporate liabilityCriminal liability and civil penalties

Most offence-creating statutory provisions provide for criminal liability for a 'person' or 'party', which are defined in the Interpretation Act (IA) as including 'any company or association or body of persons, corporate or unincorporate'.63 Thus, companies in Singapore can commit offences and attract civil penalties. They can also be prosecuted as an accessory (e.g., abetment or conspiracy) to a primary offence.

Where market misconduct offences are concerned, companies can face both criminal liability and civil penalties. The SFA expressly details the circumstances under which liability may accrue to a company. Section 236B of the SFA sets out the criteria required for a corporation to be liable for the acts of an employee or officer.64 Sections 226 and 227 of the SFA also set out the circumstances under which liability for the acts of an employee relating to insider trading can be attributed to a company.65 In addition, Section 236C of the SFA allows a civil penalty to be imposed on a company where failure to prevent or detect market misconduct by an employee or officer is attributable to the company's negligence.

Civil liability

A company can attract civil liability for the conduct of its employees and agents, based on the doctrines of vicarious liability and agency, or if the acts of its employees and agents can be attributed to it.

Legal representation

A company and its employees may be represented by the same counsel, so long as their interests are aligned and the requirements on conflicts within the Legal Profession (Professional Conduct) Rules 2015 (PCR) are complied with. Where there is a risk of a conflict arising between the company and the individuals concerned, separate legal representation is recommended from the outset.

ii PenaltiesOverview

Other than imprisonment, companies can be subject to most other forms of sanction, including fines, civil penalties or even disqualification from the right to carry out certain actions in the future.66 Typically, financial penalties imposed on companies are higher than those imposed on individuals and some offence-creating provisions specifically provide for this.

DPAs

Under the DPA framework, companies can seek to avoid criminal prosecution in exchange for compliance with certain conditions.67 DPAs are presently restricted to the offences in the new Sixth Schedule to the CPC.68

To become effective, a DPA must be sanctioned by the High Court, which must decide that the DPA is in the interests of justice and that its terms are fair, reasonable and proportionate. Once the DPA has been completed and complied with, the Public Prosecutor can apply to the High Court to have a 'discharge amounting to an acquittal' granted in favour of the subject company.

Regulatory sanctions

Where the company or offence concerned falls under the purview of a specific regulator, additional sanctions may flow from the offence.69

As alluded to above, SGX RegCo's powers of enforcement were recently expanded. From 1 August 2021, it has the powers to: (1) issue a public reprimand and require issuers to comply with specified conditions; (2) prohibit issuers from accessing the facilities of the market for a specified period or until any specified conditions are fulfilled; (3) prohibit issuers from appointing or reappointing a director or an executive officer for up to three years; and (4) require a director or an executive officer to resign. While SGX RegCo's powers under point (1) are non-appealable, its powers under points (2) to (4) are appealable before the Listing Appeals Committee.70

iii Compliance programmes

Generally, the existence of a compliance programme does not itself amount to a legal defence to a criminal charge. It is nevertheless advisable for companies to implement such programmes, as they allow companies to uncover and address non-compliant aspects within the company. From a practical standpoint, it also allows the company to identify and address any potential loss-causing or liability risks.

In the event that the authorities decide to conduct a criminal investigation into a matter, the existence of a compliance programme (if properly enforced) may be used to persuade the authorities not to take criminal action against the company or individuals involved, or as a basis to enter into discussions for a DPA. If charges are brought against the company in relation to matters relating to the compliance programme, the fact that there is a compliance programme can also be relied upon in mitigation to seek a lower sentence.71

iv Prosecution of individualsAssessment of liability

When an employee faces or has been charged with a criminal offence, the company should first ascertain whether the offending acts were committed in the course of employment. If so, the company should ascertain whether there is a risk of legal liability to it as a result of these acts.

To this end, the company should consider whether an internal (confidential or privileged) investigation should be undertaken. The ramifications for the company could be both legal (resulting in civil or criminal claims) and reputational.

Action against employees concerned

Separately, the company should consider whether any action72 can or should be taken against the employee at any of the following stages: (1) while the employee is being investigated by the authorities and prior to any criminal charges being brought; (2) during the pendency of the company's internal review; (3) after the internal review is completed and findings have been reached; (4) after the employee is charged in court, but not yet convicted; and (5) after the employee is convicted or – as the case may be – acquitted of the charge in court. A number of factors will have to be considered before reaching a decision at each stage.73 It is not mandatory for a company to terminate or discipline the employee concerned for it to be considered as having cooperated with the state's investigations.

Coordination between counsel

If both the company and the employee have engaged legal counsel in the course of a government investigation, it is possible for coordination to take place between both sets of counsel. However, before doing so, it is important for the parties to consider whether any conflict of interest exists that would prevent them from doing so.

It is also important for parties to consider whether common interest privilege should be asserted over any ensuing communications. It is prudent for parties to document the extent of the common interest at the outset, and before sharing any privileged material.

Moreover, all such communications must be conducted with care, so as not to breach the provisions in the PCR on the interviewing of witnesses,74 or the laws pertaining to interfering with or obstructing justice.

Payment of employees' legal fees

Companies may pay the legal fees of its employees. Indeed, many companies obtain directors' and officers' liability insurance policies, which serve to indemnify the company's directors or officers to the extent expressly provided within the policy.

International

i Extraterritorial jurisdiction

In Singapore, unless expressly provided for by legislation, laws do not have extraterritorial application. The following are notable exceptions to this general position.

TSOFA

Section 34 of the TSOFA states that every person who, outside Singapore, commits an act or omission that, if committed in Singapore, would amount to certain key offences under the TSOFA75 is deemed to have committed those acts or omissions within Singapore and can be charged, tried and punished accordingly. Section 34 also provides that where certain offences76 are committed outside Singapore by a Singapore citizen, that person may be dealt with as though the offence was committed in Singapore.

PCA

Section 37(1) of the PCA states that the PCA applies to Singapore citizens located outside Singapore.77

CDSA

The CDSA deals with money laundering-related offences and the confiscation of benefits from drug dealing or criminal conduct and expressly defines 'criminal conduct' and 'drug dealing' to include the doing of such acts in Singapore 'or elsewhere'.78 The scope of the CDSA extends to any 'foreign drug dealing offence', 'foreign serious offence' and any property 'whether . . . situated in Singapore or elsewhere'.79

SFA

The market conduct provisions under Part 12 of the SFA apply to acts occurring outside Singapore in relation to, among others, (1) securities or securities-based derivatives contracts of (a) corporations formed or doing business in Singapore or (b) business trusts whose trustees are formed or carry on business on behalf of the business trust in Singapore; (2) securities or securities-based derivatives contracts listed or traded in Singapore; and (3) financial benchmarks that are administered in Singapore.80

ii International cooperation

Singapore has adopted various international conventions into its domestic law that facilitate the provision and obtaining of international assistance in criminal matters, including the provision and obtaining of evidence, the making of arrangements for parties to give evidence or assist in criminal investigations, forfeiture or confiscation of property, securing the custody of a person in transit and locating or identifying persons.81

Singapore is also party to the ASEAN Treaty on Mutual Legal Assistance in Criminal Matters, which provides a process through which countries in the region can request and provide assistance in the collection of evidence for criminal investigations.

The investigating authorities in Singapore also work with foreign regulatory bodies to promote international cooperation. For example, the Singapore Police Force is a member of Interpol. Similarly, MAS is a signatory to the IOSCO Multilateral Memorandum of Understanding Concerning Consultation and Cooperation and the Exchange of Information. Pursuant to the SFA, MAS can assist its overseas counterparts in foreign investigative actions.82

Extradition (both to and from) Singapore is possible, under the Extradition Act (EXA), which provides for the extradition of fugitives to and from foreign states with which Singapore has entered into an extradition treaty, and also a number of declared Commonwealth countries. Only individuals who have (or are alleged to have) committed offences within the definition of an 'extradition crime' under Section 2 of the EXA will qualify for extradition out of Singapore. The extradition processes provided for by the EXA are commonly used.

iii Local law considerations

In multi-jurisdictional investigations, a number of local law considerations are relevant, particularly where the disclosure or sharing of information is concerned.

Where a party is served an order to produce information under Section 22 of the Mutual Assistance in Criminal Matters Act and in good faith complies, that party is immune from civil or criminal action that would otherwise lie against him or her for breach of restrictions concerning the disclosure of information imposed.83 However, where the request for information emanates from another type of foreign request, considerations of confidentiality, banking secrecy and data protection arise.

The PDPA mandates that data that an organisation has collected, and that can be used to identify an individual, cannot be used or disclosed unless that individual gives or is deemed to have given consent.84 While the PDPA allows for disclosure of personal data without consent where, among other situations, the disclosure is necessary in the public interest or for any investigation or proceeding or where disclosure is made to a 'prescribed law enforcement agency' upon production of written authorisation,85 it does not specifically provide for disclosure without consent where the request for disclosure emanates from a foreign court or investigatory body.

The Banking Act prohibits banks licensed in Singapore from disclosing 'customer information',86 except where provided for in the Act.87 A breach of these provisions will result in criminal liability for the bank or any bank officer involved.88 One exception where a bank may make disclosure of customer information without the customer's consent is where it is compelled to do so by law.89

Year in review

i Notable cases

On 5 May 2022, after a trial that lasted nearly 200 days, the two masterminds of Singapore's most serious case of market manipulation to date that wiped out more than US$8 billion in the stock market were convicted by the Singapore High Court of 349 charges of market manipulation, deception and cheating financial institutions.90

On matters of procedure, in a 2020 decision, the Court of Appeal expanded the scope of the prosecution's duty to disclose, noting the additional obligation to disclose a statement of a material witness regardless of whether the statement is favourable, neutral or adverse (in this case, an exculpatory witness).91 It left open the question whether this included the statement of a material witness called as a prosecution witness. In a recent decision, the High Court held that it does, and the prosecution ought to disclose the prior statements of its witnesses.92

ii Impact of covid-19

Regulatory enforcement has remained robust in Singapore in spite of the pandemic. MAS released its Enforcement Report for July 2020 to December 2021.93 The average time taken by MAS to complete reviews and investigations has decreased from 24 to nine months in criminal cases, and from 26 to 19 months in civil penalty cases. The latest Report also introduced a new section providing updates on the status of selected major cases, to provide greater transparency regarding its efforts to pursue these cases.94

As for other investigating bodies, the CPIB noted a high clearance rate, completing investigations into 87 per cent of subjects investigated in 2021, despite the continued disruptions and challenges caused by the covid-19 pandemic – maintaining the highest clearance rate in the past five years that was achieved in 2020.95 As stated in its Annual Report for fiscal year 2020–2021 released in October 2021, CCCS also completed 51 cases in its fiscal year ending 31 March 2021, consistent with the annual figures since fiscal year 2017.96

Conclusions and outlook

Singapore has not rested on its laurels despite its consistent high rankings as a leading financial centre in the Global Financial Centres Index and for its anti-corruption efforts in the Corruption Perceptions Index. Investigation work did not slow down despite challenges posed by the covid-19 pandemic, as evidenced by the consistent high completion rate. The various regulatory authorities also continue to work on enhancing the regulatory framework and enforcement regime. The proposed amendments to MAS's investigative and other powers is one clear example.97 It is also anticipated that the CAD, ACRA and MAS joint investigation into Noble Group Limited will be completed in the third quarter of 2022.98