"Companies should implement and regularly update a Code of Conduct and appropriate financial controls in relation to gifts, expenses, corporate hospitality and anti-bribery compliance generally. In contrast to the UK, the existence of and compliance with a Code of Conduct or any adequate compliance procedure is not a defence in Singapore, in and of itself. Nevertheless, it is still a valuable tool to mitigate bribery risks."
1. What is bribery?
Singapore’s main anti-bribery legislation, the Prevention of Corruption Act (“PCA”) covers both public and private bribery and targets both recipients and givers of bribes. The PCA defines a bribe by reference to the term “gratification”, which broadly covers both financial and non-financial benefits.
The PCA prohibits any person (whether independently or in conjunction with any other person) from corruptly:
- giving, promising or offering; or
- soliciting, receiving, agreeing to receiving,
- any gratification as an inducement to or reward for or otherwise on account of:
- any person doing or forbearing to do anything in respect of any matter or transaction (whether actual or proposed); or
- any member, officer or servant of a public body doing or forbearing to do anything in respect of any matter or transaction (whether actual or proposed), in which such a public body is concerned.
The term “person” covers companies as well as individuals.
There is no de minimus threshold. The PCA also creates specific offences for corrupt dealings by or with agents in relation to their principal’s affairs or business. It also provides that in any case where gratification is given to or received by a public official, the gratification is deemed to have been given or received corruptly as an inducement or reward unless the contrary is proved. The PCA has some extra-territorial application.
In addition, Singapore’s Penal Code creates a number of specific offences that relate to bribery of “public servants”.
2. What are the exceptions/defences?
There are no exceptions or defences. Unlike the UK Bribery Act, adequate compliance procedures are not a defence. There is also no exemption for facilitation payments.
The PCA expressly states that evidence that any gratification is customary in any profession, trade, vocation or calling is inadmissible in any civil or criminal proceedings under the PCA. For example, the fact that the giving or receiving of “red packets” for Chinese New Year is customary in Singapore is not, of itself, a defence to the giving or receipt of such a gift being found to be an offence.
3. What are the sanctions?
Under the PCA, penalties are either or both of a fine not exceeding SGD 100,000 and imprisonment for a term not exceeding five years (for private sector bribery offences) or seven years (for public sector bribery offences).
In addition, section 13 of the PCA provides that where a person has accepted any gratification in contravention of the PCA, the Court can impose a penalty equal to the amount of the gratification or the value of the gratification (if valuation is possible).
Further, section 14 of the PCA provides that where any gratification has been given by any person to an agent in contravention of the PCA, the principal may recover the amount or the value of the gratification as a civil debt either from the agent or from the person who gave the gratification to the agent. This statutory entitlement does not affect any other rights of recovery which the principal may have at law. In the civil case of Leong Wai Kay v Carrefour Singapore Pte Ltd  3 SLR 78, a manager of a multi-national company who was convicted of bribery offences had to pay the quantum of the gratification he received twice – approximately SGD 300,000 as a penalty to the state (plus a custodial sentence) pursuant to a criminal proceeding, and SGD 300,000 to the multi-national company as a civil debt. The Court held that the PCA provided for two distinct proceedings – a criminal proceeding to disgorge the bribes and a civil proceeding to recover the bribes.
Under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act, confiscation orders may also be made against a person convicted of bribery offences in respect of benefits derived from that person’s bribery offences. When assessing the value of such benefits, the Court will have regard to any order made under section 13 of the PCA and leave out of account the benefits that were taken into account under that order.
Under the Penal Code, penalties are either or both of a fine and imprisonment for a term ranging from one to three years.
King & Wood Mallesons LLP is a foreign law practice and is not qualified to advise on the laws of Singapore. This publication is intended to highlight potential issues and provide general information based on our understanding, and not to provide legal advice. You should not take, or refrain from taking, action based on its content. If you have any questions, please speak to your King & Wood Mallesons contact.