District Court of Singapore

Public Prosecutor v Takaaki Masui & Katsutoshi Ishibe
[2018] SGDC 239

[LawNet Editorial Note: An appeal to this decision has been filed in MA 9178/2018/01 and 9179/2018/01.]

19 September 2018

District Judge Shaiffudin Bin Saruwan:

INTRODUCTION

The accused persons, Takaaki and Ishibe are Japanese nationals. At the time of the commission of the offences, they were managers with M/s Nissho Iwai Singapore/Sojitz Singapore. They faced 28 charges each of conspiring with one another to corruptly obtain from one Koh Pee Chiang (“Koh”) bribes as an inducement for doing acts in relation to their principal affairs, to wit, by assisting the business interest of Koh’s company, M/s Chia Lee (“Chia Lee”), with its flour supplier, M/s Nissho. Koh made 28 payments of bribes of various amounts to the two accused persons. These are offences under s 6(a) read with s 29(a) of the Prevention of Corruption Act, Cap 241 (“PCA”).

BACKGROUND

2 At the material time, the accused persons were employees of Nissho Iwai Corporation (“Nissho Japan”) and from April 2004, of Sojitz Corporation (“Sojitz Japan”), after Nissho Iwai Corporation merged with Nichimen Corporation. The company was based in Japan. During the course of their employment, they were seconded to Nissho Iwai International (Singapore) Ltd (“Nissho Singapore”) and Sojitz Asia Pte Ltd (“Sojitz Singapore”). These two entities were Singapore incorporated subsidiaries (100% owned) of Nissho Iwai Corporation and Sojitz Corporation. One of their businesses was the supply of edible and industrial flour. M/s Nippon Flour Mill was the manufacturer of the flour supplied by the company.

3 Chia Lee was a longstanding distributor of edible flour for Nissho Singapore/Sojitz Singapore. Chia Lee would purchase edible flour from Nissho Singapore/Sojitz Singapore before on-selling the edible flour to its customers. Sometime in mid-2002, Chia Lee was appointed to replace the company Sin Heng Chan as the industrial flour distributor for Nissho Singapore/Sojitz Singapore. This was because Sin Heng Chan had suffered severe financial difficulty in running its business.

4 It was not disputed that Koh and the accused persons had entered into arrangement to ‘share’ the profits earned by Chia Lee from the industrial flour business (“profit-sharing arrangement”). When this was agreed upon, the expected profit from the industrial flour business was US$23 per metric ton of industrial flour. Koh would get only US$3 per metric ton. The remaining US$20 per metric ton was shared equally by the accused persons. The true character of this profit-sharing arrangement was the main bone of contention in the trial.

5 The prosecution alleged that the profit sharing arrangement was in reality a scheme devised by the accused persons to obtain bribes from Koh as a quid pro quo for them to continue to ‘support and protect’ Chia Lee’s long-standing edible flour business with Nissho Singapore/Sojitz Singapore. To continue to ‘support and protect’ meant that they would ensure that Chia Lee remained the only edible flour distributor in Singapore for Nissho Singapore/Sojitz Singapore. Koh, under the impression that the accused persons had the power and/or authority to affect Chia Lee’s edible flour business, reluctantly agreed to be a party to the profit-sharing arrangement, despite his strong reservations about the industrial flour business. Subsequently, when Koh wanted out from the profit-sharing arrangement, the accused persons threatened to remove their ‘support and protection’ for Chia Lee’s edible flour business. Out of fear for his edible flour business, he continued with the arrangement. The prosecution submitted that the accused persons’ guilty knowledge could be inferred from their conduct and the surreptitious manner in which the arrangement was carried out.

6 The Defence’s case was that the profit-sharing arrangement was a legitimate business transaction between Koh and the accused persons in relation to the distribution of industrial flour. The lop-sided sharing of the profit was because they had agreed to personally take on the risks of the industrial flour business. They had done so in order to allay Koh’s misgivings about being the distributor of industrial flour, and to persuade him to take on the distributorship. The accused persons conceded that payments had been made to them pursuant to the arrangement. However, they disputed that the amount that had been paid to them was S$2,051,402. The accused persons also denied the Prosecution’s assertion that they had the power or authority to affect Chia Lee’s edible flour business.

THE ISSUES

7 The issues in this case were as follows -

(i) whether the accused persons were agents of Nissho Iwai Singapore/Sojitz Singapore;

(ii) whether the accused persons had received the payments as averred in the charges from Koh;

(iii) whether the accused persons had received these payments as a quid pro quo for continuing to support and protect Chia Lee’s edible flour business; and

(iv) whether the accused persons had recognised that the payments were meant to act as an improper influence on their actions and were corrupt.

ANALYSIS OF THE ISSUES

(a) Were the charges sufficiently particularised?

8 The Defence argued that the charges were sufficiently particularised, thereby prejudicing the running of the accused person’s defence. The deficient related to the omission to state the exact acts allegedly carried out by the accused persons to advance Chia Lee’s business interests on each occasion when payment was received. On a side note, the Defence argued that insofar as the accused persons had threatened to stop their “support and protection” of Chia Lee, this was not a conferment of an advantage but rather a forbearance to show disfavour.

9 I rejected the Defence arguments. I was satisfied that there was sufficient particularisation insofar as each charge stated the acts done in relation to the principal’s affairs ie the advancement of Chia Lee’s business interests with Nissho Singapore/Sojitz Singapore. The evidence adduced in court through the prosecution witnesses averred to this. On the side note, the accused persons had promised to provide their continued “support and protection” of Chia Lee’s business interests by ensuring that it remained the sole distributor of edible flour in Singapore for Nissho Singapore/Sojitz Singapore. I did not find that there was any ambiguity in the charges that the accused persons have to answer, and no prejudice was caused.

10 Further, the payments that Koh had made to the accused persons were made to ensure that they continued to advance Chia Lee’s business interest. Logically, to stop advancing Chia Lee’s business interest by supporting or protecting Chia Lee did not necessarily entails showing disfavour to Chia Lee. Rather, it was a return to the ordinary state of affairs. The phrase “acts in relation to his principal’s affairs” have been widely construed: Mohamed Ali bin Mohamed Iqbal v PP [1978-1979] SLR 447 (at [5]). Such acts could encompass any act so long as they were something which the accused persons could have performed within the scope of their duties: see PP v Mohamed Abdul Gofar [1997] 1 SLR 497 (at [34]). In the present case, the selling of edible flour to other dealers or directly to Chia Lee’s customers fell within the scope of the accused persons’ duties.

(b) Were the accused persons agents of Nissho Singapore/Sojitz Singapore?

11 The definition of agent in s 2 PCA was a broad one. It encompassed not only employees, but also “any person acting for another”, which was in turn framed as an inclusive category of persons. The same was true for the definition of principal in the PCA. The critical inquiry was whether the recipient of the gratification owed a duty to act in the interest of the principal.

12 In the present case, it was clear that the accused persons owed a duty to act in the interest of Nissho Singapore/Sojitz Singapore whilst they were assigned or seconded to the subsidiary. I agreed with the Prosecution that their duty to act in the interest of the subsidiary did not cease upon their re-deployment to the parent company, Nissho Japan/Sojitz Japan. To hold otherwise was to ignore the reality of the relationship between the parent company and its subsidiaries. The evidence showed that in this case, the parent company and its subsidiaries were run as a group along divisional lines. Each division in the parent company managed the corresponding division in the overseas subsidiary^{[note: 1]}. As Ishibe had testified, there was “HQ control” over the credit applications, appointment of distributors, and amount of commissions earned by the overseas subsidiary^{[note: 2]}.

13 The evidence also showed that the accused persons had continued to be concerned in the affairs of Nissho Singapore/Sojitz Singapore even after their return to Japan. Masui was General Manager of the Foodstuffs Department in Nissho Japan/Sojitz Japan between April 2005 and November 2007 (Exhibit P4-T)^{[note: 3]}. As General Manager, he was responsible not only for the flour business in Japan but also oversaw the flour business worldwide^{[note: 4]}. This was reflected in Masui’s resume in Exhibit P4-T and confirmed by one Kato Hideaki (PW1), the company representative^{[note: 5]}. Both these evidence were not challenged or disputed. However, on the stand, Masui did an about-face by denying that he had been appointed to that position, claiming that the translation of his resume (Exhibit P4-T) was inaccurate. The Defence also called a former employee, one Miyamoto (DW3) to corroborate Masui on his denial. He testified that Masui was in the Foodstuffs Department when Masui returned to Japan. But significantly, he asserted that the Foodstuffs Department did not deal with wheat flour. This contradicted Masui’s evidence. I noted pertinently that Miyamoto was not even present in Nissho Japan/Sojitz Japan during the material period as he had been seconded to the USA. He had then resigned from Nissho Japan/Sojitz Japan at the end of March 2005. In my view, this fact and the fact that his evidence that directly contradicted Masui’s evidence rendered his testimony unreliable. I therefore rejected his evidence.

14 I also rejected Masui’s evidence that he did not hold the General Manager’s position in the company. I rejected his claim that his resume was not accurately translated. It was not challenged when admitted into evidence by the Prosecution. Therefore he had accepted that the contents contained therein were true and correct. He could not now turn around and alleged that the translation was inaccurate. His late claim was nothing more than an afterthought. On the strength of the evidence of Kato and the resume Exhibit P4-T, I accepted that Masui was the General Manager of the Foodstuffs Department. As General Manager, he was responsible for the flour business in Japan and also oversaw the flour business worldwide.

15 Between October 2001 and February 2009, Ishibe was a staff of the Foodstuffs Department of Nissho Japan/Sojitz Japan. The evidence showed that he had continued to be concerned with the affairs of Nissho Singapore/Sojitz Singapore^{[note: 6]}. For example, in 2002, he had accompanied one Tomitaka, a representative of Nippon Flour Mills to Singapore to speak to Koh about Chia Lee’s appointment as the industrial flour distributor for Nissho Singapore/Sojitz Singapore. Ishibe was also in charge of the sale of wheat flour to Nissho Singapore/Sojitz Singapore, signing off on the packing lists in Exhibits P21, P22 and P23^{[note: 7]}.

16 The affairs of the wholly owned subsidiaries clearly affected and impacted the business affairs of the parent company. During their cross-examination, the two accused persons conceded as much. They agreed that any damage done to the subsidiary company would have an adverse impact on the parent company^{[note: 8]}.

17 All executives and employees of Sojitz Japan and its subsidiaries (ie the Sojitz Group) must comply with the same Compliance Code of Conduct. The Code provided that they could not act in conflict with the interests of the Group or put their personal interests over that of the Group (Exhibit P15). The accused persons’ employment with the parent company was terminated as a result of acts done in relation to the subsidiary (Exhibit D15-T and D17-T).

18 For the above reasons, I was satisfied that the duty on the accused persons to act in the interests of their employer, Nissho Japan/Sojitz Japan, encompassed the duty to act in the interests of their wholly owned subsidiaries Nissho Singapore/Sojitz Singapore. Therefore, they were agents of Nissho Singapore/Sojitz Singapore.

(c) Did the accused persons received the payments from Koh totalling $2,501,402?

19 The Prosecution’s case was that the accused persons received payments from Koh totalling $2,501,402. It relied mainly on Koh’s testimony and the records kept by him. The Defence conceded that payments had been made by Koh to the accused persons, but disputed the amount.

20 Koh testified on the circumstances in which the payments were made. He described how he had made contemporaneous handwritten records of the amounts earned from the distribution of industrial flour, and the amounts paid to the accused persons (Exhibit P21-P23 and P26). Koh described the circumstances as follows –

(i) Masui would contact him to get the calculations ready. Koh then consolidated the invoices pertaining to Nissho Singapore/Sojitz Singapore and Chia Lee. He calculated the accused persons’ share. The calculation was done on sheets of paper.

(ii) Koh would then withdraw the amount that he has to pay in cash from Chia Lee’s bank account.

(iii) Both the cash and the sheet of paper containing the calculations were handed over to Masui^{[note: 9]}. Koh kept a copy of the handwritten calculations. He made copies using the ‘photocopy’ function of his facsimile machine. The copies were printed on thermal paper (Exhibit P24).

21 The figures and calculations recorded in Exhibits P21, P22 and P23 were corroborated by the invoices of Nissho Singapore/Sojitz Singapore and Chia Lee that were recovered. In cross-examination, Masui had agreed that the method of calculation used in Exhibits P21, P22 and P23 correctly reflected the profit-sharing agreement^{[note: 10]}.

22 In relation to Exhibit P26, Koh explained that by that point of time, Chia Lee had faced financial difficulty. He could no longer pay Masui and Ishibe the full amount of profits obtained from the industrial flour business. The two sheets in P26 were the contemporaneous record of the amount of each payment that he had made to Masui. This was the reason why there was no calculations as in the other three sheets of paper^{[note: 11]}. The figures shown in P26 were partly corroborated by the OCBC bank deposit slips which confirmed deposits made into Masui’s bank account (Exhibit P27)^{[note: 12]}. In addition to these deposits into Masui’s bank account, Koh also identified the corresponding withdrawals made from Chia Lee’s UOB Bank accounts which represented the cash payments made to Masui. The summary of Koh’s evidence in respect of each note and the corresponding withdrawals is found at Annex A which was attached to the Prosecution’s Closing Submissions.

23 I was satisfied that Koh was cogent and credible in his evidence. Despite very extensive cross-examination, his evidence on the material issues remained unshaken. He did not just rely on memory when he identified the withdrawals that he had made, but also by referring to the exchange rates indicated in the bank statements. These rates tallied with what he had recorded in the handwritten notes^{[note: 13]}. Although he was unable to recall each and every withdrawal made, but given the passage of time, I found this inability to recall reasonable. He was candid and frank in his testimony; readily admitting when he was unable to recall, rather than fudge. This gave his evidence the ring of truth and reinforced his credibility.

24 In contrast Masui did not come across as a credible witness. He deigned ignorance about the amounts which he had received from Koh, claiming that he did not keep records of the payments^{[note: 14]}. More importantly, he asserted that he had never seen or received the handwritten notes from Koh^{[note: 15]}. When pressed during cross-examination about how he then ensured that Koh was not short-changing him and Ishibe, he claimed he did not check on this. I found the casualness in his attitude over the payments contrived, especially in light of his concession that it was important to them that Koh was keeping to his part of the agreement. When pressed further why he did not check when it was important, he could only repeat that he did not check^{[note: 16]}.

25 The main plank of the Defence was that the profit sharing arrangement was because the accused persons were underwriting the huge risk in relation to the industrial flour business. In this context, it was illogical that Masui did not check the amounts paid by Koh to him and Ishibe to ensure that they were correct. All considered, I believed Koh’s evidence that he had furnished to Masui the handwritten notes made by him as records of the amounts due and payable to Masui^{[note: 17]}. The breakdown of the amounts, including the amounts payable to Masui and Ishibe, and the prevailing exchange rates in these notes, were to serve as records for the accused persons to verify that the amounts were correct.

(d) Were the payments inducements for Masui and Ishibe to advance the business interests of Chia Lee, and were they objectively corrupt?

26 The two questions of (i) whether the payments were meant as inducements, and (ii) whether they were objectively corrupt, would be dealt with together as they were part of the same factual inquiry. The question was whether the accused persons had received the payments as a quid pro quo for the acts of favour alleged to be procured and whether this ulterior motive infected the payments with a corrupt element. This inquiry was an objective one based on the ordinary standard of the reasonable man: Chan Wing Seng v PP [1997] 1 SLR(R) 721 (at [20]).

27 The fact that the accused persons had initiated the scheme was not fatal to establishing the objective corrupt element: Leng Kah Poh v PP [2014] 4 SLR 1264 (at [46])(“Leng Kah Poh”). The court in Leng Kah Poh expressly recognised that -

“An agent who seeks to obtain a gift under the guise of a cleverly devised scheme may well find himself guilty of corruption as the court will not hesitate to look beyond the pretext or the guise and determine the presence of an objective corrupt element in the transaction and the true nature of the arrangement.”

The focus of the inquiry would be on the nature of the payments and the influence it had on the accused persons. The surrounding circumstances of the case, including the surreptitiousness or furtiveness of the transaction, the size of the gratification, relationship of the parties, breaking of rules or code of conduct, would point towards the accused persons’ reasons for receiving the gratification: PP v Low Tiong Choon [1998] 2 SLR(R) 119 (at [30]).

28 The Prosecution’s case was that the accused persons had received the payments from Koh as a quid pro quo for their continued support and protection of Chia Lee’s edible flour business. As a consequence, this intention infected the transactions with an objectively corrupt element. In proving this issue, the Prosecution relied mainly on the testimony of Koh.

(i) Was Koh’s evidence as to the purpose of the payments credible?

29 Koh’s evidence on this issue were as follows –

(i) Sometime in 2002, Ishibe had asked him to sell industrial flour to Chao Sun Trading and enter into a profit-sharing arrangement with them as a “favour”. Koh said that Ishibe told him that “he is supporting me on this and also protecting me selling the edible flour…he treat me as the only importer, only agent, in Singapore and asked me to cooperate with him”^{[note: 18]}.

(ii) He agreed to help Ishibe as he wanted “to let the business of this edible flour continuing and smooth running”^{[note: 19]}. He was afraid and nervous that if he did not agree to do the “favour”, Ishibe would sell the edible flour to competing trading companies. This would adversely affect Chia Lee’s edible flour business^{[note: 20]}.

(iii) In the course of their dealings, the accused persons would also inform Koh from time to time that other importers and/or customers had enquired about purchasing the edible flour directly from Nissho Singapore/Sojitz Singapore, and by implication, by-passing Chia Lee^{[note: 21]}.

(iv) As the profit-sharing arrangement continued, the profits earned on each transaction also increased. However, Koh ‘share’ remained at S$3. The S$3 was only sufficient to cover Chia Lee’s costs, but not enough to cover the additional business taxes that Chia Lee had to pay because of the blossoming profits from the industrial flour business. Koh also felt uncomfortable that Masui and Ishibe were undercutting the business of Chao Sun Trading by selling industrial flour directly to Chao Sun’s customers^{[note: 22]}.

(v) When Koh informed the accused persons about the concerns mentioned above, and that he did not wish to continue with the arrangement, they threatened him with “[i]f you don’t like to do it, we may change other people to do that. We will not continue to support and protect you anymore”^{[note: 23]}. Koh therefore felt that he had no choice but to continue with the arrangement or risk his edible flour business being adversely affected^{[note: 24]}.

(vi) By June 2005, Chia Lee had fallen into parlous financial difficulty^{[note: 25]}. Notwithstanding this, Koh continued to pay the accused persons whatever amount he was able to raise. Koh did not stop the payments because he was concerned about his edible flour business^{[note: 26]}. The payments only came to a halt when Chia Lee’s accounts came under the direct control of Sojitz Japan^{[note: 27]}.

30 I was satisfied that Koh was a very consistent and truthful witness. I accepted his evidence that the payments were meant to ensure that the accused persons continued to support and protect Chia Lee in its edible flour business with Nissho Singapore/Sojiz Singapore. I also found his evidence that he had agreed to participate in the arrangement because of his concern for his edible flour business credible.

31 In this line of inquiry, one important question to consider was whether the accused persons had the power or authority to affect Chia Lee’s edible flour business. The accused persons, by virtue of their positions and actions, had held themselves out as persons of power and authority within the companies. Koh testified that Ishibe was his main contact point when he was stationed in Singapore. He was also “in charge of telling me what is the price, the market price, and negotiate to sell me the flour”^{[note: 28]}. Ishibe confirmed this during cross-examination when he agreed that he was the representative from Sojitz, was constantly in contact with Koh, was in charge of Chia Lee’s account in Sojitz, and gave instructions to Koh in relation to the edible flour business^{[note: 29]}. When he was transferred back to Japan as a manager of the Foodstuffs Department in Nissho Japan/Sojitz Japan, he continued to be involved in the flour business of the company.

32 According to Koh, Masui took over as the “main contact point” after Ishibe returned to Japan^{[note: 30]}. This evidence was not challenged by the Defence although Masui subsequently tried to downplay its effect by claiming that he was only one of the contacts^{[note: 31]}. However, the Defence appeared to have accepted that Masui had met Koh frequently enough such as to leave Koh with the impression that he was in charge of Koh’s credit reviews and “determined his fate”^{[note: 32]}. I accepted that Koh was given that impression because Masui held positions of great seniority in both Nissho Singapore/Sojitz Singapore as well as Nissho Japan/Sojitz Japan during the material period. He had signed off on Nissho Singapore sale documents as Senior Manager^{[note: 33]} and had in January 2004 been appointed General Manager of the Foodstuff Department in Nissho Singapore/Sojitz Singapore^{[note: 34]}. Upon his return to Japan, he was appointed the General Manager of the Foodstuff Department in Nissho Japan/Sojitz Japan (Exhibit P4-T).

33 Koh’s fear for Chia Lee’s edible flour business was not unfounded. Although Chia Lee was a long-standing distributor of edible flour for Nissho Singapore/Sojitz Singapore, there was nothing that contractually obliged the latter to keep Chia Lee as the only distributor of edible flour in Singapore. In fact Koh testified that Chia Lee was never officially appointed as the sole agent^{[note: 35]}. The evidence showed that Nissho Singapore/Sojitz Singapore would contract with Chia Lee for the edible flour once every three months^{[note: 36]}. Koh also testified that it was not difficult to find other cash rich distributors who could purchase flour without credit^{[note: 37]}. He also testified that it was also possible for Nissho Singapore/Sojitz Singapore to sell the flour directly to Chia Lee’s customers. He gave the example of the Magisaka biscuit factory^{[note: 38]}. The evidence made it apparent that Chia Lee’s status as the distributor of edible flour for Nissho Singapore/Sojitz Singapore was not definite or entrenched. It could easily be replaced like Sin Heng Chan was replaced as the industrial flour distributor.

34 Within this backdrop, it was reasonable for Koh to believe that the accused persons wielded the power and authority to affect his edible flour business. It should be emphasised that the edible flour business was Chia Lee’s primary business and it was a profitable concern. Ishibe himself had confirmed that when he was posted in Singapore, there was no record that Chia Lee’s finances were bad or that it owed money to Nissho Singapore/Sojitz Singapore^{[note: 39]}. The significance that Chia Lee and its edible flour business has to Koh was cogently encapsulated in Koh’s evidence below –

“At that time, 2002, it’s more than 20-over years. That was all my work, my very hard work. How many 20 years in a lifetime? All these buyer of edible flour, I source it myself. If I lost this one, I lost to earn a living, this business is very important to me. Especially edible flour.”^{[note: 40]}

35 The preceding paragraphs provided his mind-set when he agreed to enter into the industrial flour agreement despite having no experience in industrial flour, and despite the fact that Chia Lee would incur losses as the price of industrial flour sold by Chia Lee increased ie, because Chia Lee’s tax liability would correspondingly increased, such that its S$3 share would be grossly insufficient to meet the tax liability. It also explained why Koh continued with the arrangement even when Chia Lee experienced financial difficulties. A reasonable inference could be drawn that Koh had agreed to the profit-sharing arrangement done because he was genuinely fearful that the accused persons would stop supporting and protecting him if he refused therefore resulting in the loss of his edible flour business^{[note: 41]}.

(ii) Did the accused persons have the power to affect Chia Lee’s business and had they exercised that power?

36 As a preamble, s 9 PCA provided that the recipient of a gratification was precluded from raising the defence that he did not have the power to do anything, or in fact do anything, for the giver in relation to his principal’s affairs. Nevertheless, the Prosecution submitted that there was ample evidence in the case that pointed to the fact that both accused persons had the power to affect Chia Lee’s business.

37 Kato Hideaki testified that the manager of Nissho Singapore/Sojitz Singapore would be involved in matters like price negotiations with the flour dealer, for example, Chia Lee^{[note: 42]}. The manager and general manager would also monitor the dealer’s performance and report back to the managing director^{[note: 43]}. He also testified that the general manager of Nissho Singapore/Sojitz Singapore was authorised to, inter alia, appoint distributors^{[note: 44]}, determine the quantity and the price of the flour sold to the distributors^{[note: 45]} and make the application to give, renew, and increase or decrease the dealer’s credit limit^{[note: 46]}. Kato Hideaki’s evidence on the general practise of the companies before 2001 until today was grounded on his knowledge and experience of managing various subsidiaries of Nissho/Sojitz Japan and from examining company documents^{[note: 47]}.

38 The accused persons denied having any power to affect Chia Lee’s edible flour business. Eventually they conceded after extensive cross-examination that they had the power to recommend the appointment and removal of a company as a flour distributor for Nissho Singapore/Sojitz Singapore. Ishibe further admitted that he had in fact recommended Chia Lee’s appointment as an industrial flour distributor to replace Sin Heng Chan^{[note: 48]}. Pertinently, his admission only came about after he was confronted with his statement to the CPIB on 12 Mar 12 (Exhibit P30). Before he was confronted with his own statement, he would only say that he had merely been informed of Chia Lee’s appointment as Sin Heng Chan’s replacement by one Nagamoto, then General Manager of the Foodstuffs Department of Nissho Japan/Sojitz Japan^{[note: 49]}.

39 Koh had no experience in the industrial flour business. And as of June 2005, Chia Lee was experiencing financial difficulties^{[note: 50]}. The accused persons had agreed with the prosecution’s suggestion that it would have been in the best interests of Nissho Singapore/Sojitz Singapore that an experienced^{[note: 51]} and financially healthy^{[note: 52]} company was appointed as its industrial flour distributor. Yet they did not recommend the appointment of any other company as the industrial flour distributor despite being aware of the availability of suitable candidates^{[note: 53]}. When asked to explain the dissonance, Ishibe could only muster the explanation that Nippon Flour Mill and Nissho Japan/Sojitz Japan did not “have any ideas to appoint other distributors”^{[note: 54]}. I found this explanation unsatisfactory in light of what Miyamoto had said in his testimony that in appointing distributors, Nippon Flour Mill relied on information provided to it by the staff of Nissho Singapore/Sojitz Singapore. He said, “Nippon Flour Mill would not know of the other flour distributors in Singapore if they were not told by someone in Singapore”^{[note: 55]}. That someone in Singapore was a clear reference to the staff at Nissho Singapore/Sojitz Singapore namely, Ishibe or Masui.

40 I found it inexplicable that the accused persons had not recommended from the very beginning a company that was experienced and financially healthy to replace Sin Heng Chan as its industrial flour distributor. Instead they chose Koh, someone who was inexperienced and reluctant to take on this mantle. I was of the view that if they had appointed a company other than Chia Lee, then their profit-sharing arrangement would be redundant^{[note: 56]}.

41 On the totality of the evidence, I found that the accused persons had planned all along to have Chia Lee appointed as the industrial flour distributor. The appointment of Chia Lee as the industrial flour distributor was the essential component of their profit sharing arrangement. They knew that they had a hold over Koh in the form of his edible flour business. They did not have this advantage with the alternative distributors. They knew they could make Koh do whatever they want. In this case, Koh was ‘strong armed’ into agreeing to be the industrial flour distributor. Subsequently, he was coerced into continuing with the arrangement notwithstanding Chia Lee’s parlous financial situation. In order to mask this, they consistently throughout the trial refuted any suggestion that they had the ability or power to affect Chia Lee’s business and the appointment of Chia Lee as the industrial flour distributor.

(iii) Were the payments to the accused persons for the purpose of taking on the risks of the industrial flour business?

42 The crux of the defence was that the profit-sharing arrangement was a bona fide one, in that, the payments made by Koh to them were for their undertaking the risks of the industrial flour business.

The accused persons claim was inconsistent with their statements to the CPIB

43 The Defence claimed that the profit-sharing arrangement was necessitated because Koh had brought up his concerns about the risks involved in the industrial flour business. To assuage these concerns, Ishibe had then proposed the profit-sharing arrangement to Koh, explaining that they would take on the risks^{[note: 57]}. Masui testified that Ishibe had informed him about the said conversation. Ishibe had then proposed to him that they both take on the risks jointly and share the profits. Masui agreed ^{[note: 58]}. Notably, this version of events was never put to Koh.

44 Critically, Ishibe’s version of the genesis of the profit-sharing arrangement was materially inconsistent with his account in his CPIB statement (Exhibit P30). In P30, Ishibe did not mention that Koh had expressed his concerns about the risks. What Ishibe said, at paragraph 17 of P30, was that he did not tell Koh the reason why he was taking US$20 per metric ton as his share of the profit. He was unable to give a satisfactory explanation for the omission to state that Koh had expressed his concerns about taking over the industrial flour distributorship although he conceded that this fact formed a critical component of his defence^{[note: 59]}.

45 Masui gave three different versions of the events on this same issue. His oral testimony was inconsistent with the version put by his counsel to the Koh and the version he gave in his statement to the CPIB dated 12 Mar 13 (Exhibit P32). The Prosecution has tabulated the differences in para 51 of their Closing Submissions. The table is reproduced below –

Version in court	Version put by Counsel[note: 60]	Version in Exhibit P32[note: 61]
Masui had been informed by Ishibe that Koh was concerned about the risks of the industrial flour business, therefore Ishibe had decided to take on the risks in return for a share of the profits[note: 62]. Ishibe had thereafter asked Masui to join him in taking on the returns and share the profits[note: 63]. Masui agreed with Ishibe’s plan to take on the risk because of Koh’s reluctance to take on the risk[note: 64].	Sometime prior to the 2002 visit, Masui had telephoned Koh to ask if he was willing to let Chia Lee replace Sin Heng Chan. Koh indicated that the risk for the industrial flour market was very high and he was therefore not keen. However, Koh also said that he was not closed off to the idea as there were substantial profits to be made.	Sometime prior to the 2002 visit, Masui had met Koh to discuss Chia Lee replacing Sin Heng Chan. Koh was hesitant to handle the industrial grade flour as he had no knowledge about it. Masui told Koh not to worry and to just inform Mr Tomitaka that he was agreeable to handle the industrial flour. Koh agreed. However as he was worried whether Koh was able to constantly sell the industrial flour, he introduced a potential buyer to Koh (Chao Sun Trading) Subsequently, the accused persons were still concerned about the risks involved and decided to take on the risks personally by entering into the ‘profit-sharing’ arrangement with Koh.

46 During cross-examination, Masui asserted that the version he gave in court was the correct version. With regards to the version put by his counsel, the questions which his counsel had put to Koh were very specific, and it could be reasonably be inferred that these questions were put on Masui’s instructions. When he was asked about this, Masui claimed that he did not know whether he had the right to stop his counsel^{[note: 65]}. I rejected this explanation because during the course of the proceedings, I have observed that both Masui and Ishibe did not show any hesitation to convey instructions to their counsel from the dock from time to time. So for him to offer this as an excuse was implausible. As regards P32, Masui’s claim that the entire incident described in P32 did not happen was inexplicable because if it was true, then he would not have been able to recollect and give a detailed narration of the incident in P32^{[note: 66]}. Masui also agreed that his version of events during his examination-in-chief differed substantially with paragraph 27 of P32. But he was unable to give any explanation for the difference despite conceding that if the reason for the profit-sharing arrangement was Koh’s reluctance to take on the risk, he would have mentioned it in P32^{[note: 67]}.

47 I agreed with the Prosecution’s submissions that the versions given by the accused persons in their statements to CPIB corroborated Koh’s evidence in court, which was that they had not informed him that they would assume the risks of the industrial flour business, and that Koh was never under the impression that they would be taking on the risks^{[note: 68]}. Masui also conceded that Koh had never said that he was open to taking on the industrial flour business because of the substantial profits that could be made^{[note: 69]}.

48 In my view there was no plausible reason for the accused persons not to have mentioned in their CPIB statements the fact that Koh had refused to take on the risks if it was true, After all, this was the dominant reason for the profit-sharing arrangement. Therefore the omission to mention this fact in the accused persons CPIB statements showed that the accused persons had not been truthful and as such, I rejected their evidence.

The accused persons were unable to provide consistent accounts of how the profits received from Koh were used

49 On the issue what the accused person did with the profits paid to them by Koh, their evidence were at best ambivalent. Initially, Masui’s position was that he had had used his share of the profits on his personal expenses or the company‘s entertainment expenses^{[note: 70]}. When asked why he did not keep all the profits as it was meant to take on the risks of the industrial flour business, he then backtracked on his position and claimed that he kept some of the profits for the risks and spent the rest.

50 Then he was confronted with his CPIB statement (Exhibit P33) wherein he stated that there was no agreement to split the profits equally with Ishibe. Rather, all the profits had gone into a ‘floating pool account’^{[note: 71]}. It was worth noting that he had not mentioned the ‘floating pool account’ in the course of the court proceedings. When asked why, his response was that he had used a different term for the phrase, that is, that the money had to be ‘saved for’ or ‘kept’ for the risks^{[note: 72]}. Be that as it may, his evidence in P32 that the entirety of the profits were put into a ‘floating pool account’ and was never shared equally between him and Ishibe was inconsistent with his evidence in court when he said that he had passed half of the profits to Ishibe. This was yet another instance where Masui was caught to be inconsistent on a material point.

51 Masui finally conceded that he had not been truthful to the CPIB only after much persistent questioning by the Prosecution. He admitted that he had lied to the CPIB about the ‘floating pool account’ and that both of them had not intended to share the profits personally. He did this because he was trying to hide the fact that he and Ishibe were profiting personally from the profit-sharing arrangement from the CPIB^{[note: 73]}.

52 Ishibe’s account in court was that he had received his share of half of the profits from Masui. He claimed that in his mind, the profits were meant to meet the risks of the industrial flour business, and he therefore reserved the monies for that purpose. However, he later admitted that he had also used the monies for personal expenses and entertainment expenses incurred on behalf of the company^{[note: 74]}. His court version was however inconsistent with his statement to the CPIB (Exhibit P30). In P30, he had told CPIB that he received a total of US$50,000 from Masui from a ‘profit pool’, and he had spent the entire sum^{[note: 75]}. Having no choice but to concede that the two versions were materially different, he attempted to reconcile the inconsistency, by explaining that the amount of US$50,000 specified in P30 was the net amount. When asked why the word ‘net’ was not in the statement, he said that it unfortunate that the word ‘net’ was missing in that sentence^{[note: 76]}. I found the explanation to be contrived and was clearly a desperate attempt by him to reconcile the irreconcilable. Ishibe had conceded that the statement had been read back to him, and he had the opportunity to make amendments. If indeed the US$50,000 represented the net amount, then there was no reason for the word ‘net’ not to be in P30. The fact that it was not showed that the explanation that the amount was the net amount was patently false. In addition, Ishibe was also confronted with his statement recorded on 29 Jul 13 (Exhibit P31) where he did not mention the fact that Masui and he intended to use the profits from the ‘profit pool’ to cover the losses arising from the industrial flour business^{[note: 77]}. The inference that I drew from this omission was that the whole thing was a fabrication.

53 During re-examination, Ishibe backtracked on his earlier evidence. He claimed now that the ‘profit pool’ that was referred to in his statements was the money which Masui and he had reserved for the risks. He sought to distance himself from the ‘profit pool’ by claiming that Masui had not explained to him the usage or the amount that was going in and out of the ‘profit pool’^{[note: 78]}. It should be noted that up to this point of the trial, Ishibe had never given evidence of a ‘profit pool’ being handled and maintained by Masui. Both their evidence had been all along that the profits were split equally and handed over after each payment. In any event, I found his evidence that he did not know the amount going in and out of the ‘profit pool’ to be implausible for two reasons. First, as he seemed to treat the profits received by him as income^{[note: 79]}, it was logical to assume that he would have been interested to know the amount that he was going to receive, and that amount would be dependent on how much was put into the ‘profit pool’. Second, he had testified that there had been discussions between him with Masui about losses before monies were put in to cover the said losses^{[note: 80]}.

54 The preceding paragraphs showed how the accused persons were unable to provide a consistent account of how the profits received from Koh were used. Not only were their versions different from their statements to the CPIB, but their versions were also inconsistent with each other’s. The only and obvious inference that I should draw from this was that these were fabrications and untruths, and that there never was any agreement to reserve the profits to cover the risks.

Was the transfer of monies to Koh for the default by Chao Sun Trading made pursuant to the arrangement?

55 In trying to prove the bona fide of the profit-sharing arrangement, the accused persons provided one example where they had purportedly taken the risk of the industrial flour business. The example related to the transfer of US$240,000 to Chia Lee sometime on 15 Jun 05 (Exhibit P25). The transfer was to purchase cheques amounting to US$326,000 which Chao Sun had defaulted on (Exhibit D19). An email dated 10 Feb 04 was also produced (Exhibit D18) to corroborate the accused persons’ story. Masui claimed that he had sent the email to Koh when he heard that Chao Sun’s financial situation was unhealthy. The email was to inform Koh that they would not be able to take the risk of default if information was not sufficiently provided^{[note: 81]}.

56 It was not disputed that Chia Lee had received the transfer of US$240,000. However the Prosecution submitted that this payment was not made for the purpose as claimed by the accused persons. Rather it was to keep Chia Lee afloat so that the accused persons could continue with the profit-sharing arrangement. The Prosecution’s rebuttal was based on two grounds.

57 First, they submitted that the circumstances in which the email was introduced into evidence cast doubt on its authenticity. It was never produced or shown to CPIB during investigation^{[note: 82]}. It was not shown to Kato Hideaki (PW1) when he was on the stand which would have given him the opportunity to check if it could be retrieved from the server of Sojitz Japan^{[note: 83]}. More significantly, it was not shown to Koh, the alleged recipient^{[note: 84]}, thus depriving Koh from either confirming or denying having received it. In any event, its content did not make any mention of the alleged profit-sharing agreement to take on the risks. Second, despite admitting to having knowledge of Chao Sun’s poor financial situation as early as 2004, the transfer was only made in mid-2005. Koh had given evidence that Chao Sun had defaulted on payments as early as 2004^{[note: 85]}. His evidence which was bolstered by the objective evidence of the cheques (Exhibit D19) was not challenged.

58 The delay in the transfer was explained by Masui as follows – it was because Koh had only handed over Chao Sun’s defaulted cheques in May or June 2005^{[note: 86]}. I rejected his explanation as implausible. Masui has conceded that a default on payment by a customer would have had an adverse impact on the company’s financial situation. Therefore, as a rational and experienced businessman, there was no conceivable reason for Koh to delay approaching the accused persons to fulfil their part of the agreement, that is, for them to take on the risk.

59 Third, only a partial sum was remitted to Chao Sun instead of the full sum of US$326,000. Purportedly the balance was to be set off from the payments made by Koh to the accused persons^{[note: 87]}. As the Prosecution submitted, there was no discernible reason why the accused persons could not fully cover the default as provided for in the arrangement. Based on Koh’s handwritten notes, they would have received a cumulative sum of S$1,073,926 by April 2005^{[note: 88]}. This was not implausible as Masui himself conceded, the profit-sharing arrangement with Koh was profitable. As he was wont to do in the course of the trial, when it was pointed out to him that if this was true, then they could have covered the full loss, he backpedalled on his earlier evidence^{[note: 89]}.

60 Therefore I accepted the Prosecution’s submission that there was no evidence to show that the accused persons took on the risks of the industrial flour business. I was satisfied that the accused persons never intended to take on the risks. Rather the discussion above corroborated Koh’s evidence that the remittance was only made to ensure that Chia Lee was kept afloat so that the profit-sharing arrangement could continue^{[note: 90]}. Ishibe himself admitted as much^{[note: 91]}. Masui also conceded that had Chia Lee gone under, it would have sounded the death knell for the profit-sharing arrangement^{[note: 92]}.

(iv) Other Surrounding Circumstances

The accused persons had received a large sum of money from Koh

61 The total amount of gratification received by the accused persons was large. It comprised the lion’s share of the total profits of Chia Lee’s industrial flour business. I agreed with the Prosecution that no bona fide intention could be attributed to the receipt of these payments. The accused persons were unable to furnish any reasonable alternative explanation for these payments.

The accused persons had knowingly acted in contravention of company’s rules

62 It was not disputed that the accused persons had knowingly acted in contravention of the company rules^{[note: 93]} against employees placing themselves in a position of conflict of interest by accepting money from a counterparty to their principal and profiting by virtue of their positions in the company^{[note: 94]}.

The payments had been made surreptitiously

63 The profit-sharing arrangement was kept a secret from the parent company and its Singapore subsidiary. The payments which were usually substantial in amount (tens of thousands of dollars) were made in cash, when cheques and bank transfers were the safer and more practical options. Other than the handwritten notes made by Koh, there were no payment vouchers or receipts generated. There was also no acknowledgement of receipts of the amounts by the accused persons. All these unusual circumstances, for example, the lack of a paper trail, strongly suggested that the payments were surreptitious in nature.

(v) Conclusion

64 Therefore the weight of the evidence showed that the so-called profit-sharing arrangement was in reality a quid pro quo for the accused persons to advance the business interest of Chia Lee by continuing their support and protection of Chia Lee’s edible flour business. And the reasonable man looking at the transactions would have concluded that the accused persons’ intention in receiving the payments tainted each receipt of payment with a corrupt element.

(e) Did the accused persons accepted the payments from Koh with a guilty mind?

65 The above test is a subjective one. It must be shown that the accused persons knew or realised that what they did was corrupt by the ordinary and objective standard: Chan Wing Seng (at [23] to [25]). Guilty knowledge could be inferred from the accused persons’ conduct in coercing Koh to cooperate with them as they were supporting and protecting Koh and by extension Chia Lee, and subsequently threatening to withdraw their support and protection when Koh wanted to terminate the arrangement. It was clear that the accused persons recognised that the payments were meant to act as an improper influence on their actions: Leng Kah Poh (at [26]). There was no other legitimate reason why Chia Lee would give the accused persons the lion’s share of the profits. This was clearly an instance where “the accused’s actions are so obviously corrupt by the ordinary and objective standard that he must know his conduct is corrupt: Chan Wing Seng (at [67]). The furtiveness and surreptitiousness surrounding the payments ie, payments of large amounts in cash, absence of vouchers or receipts, was a further indication of their guilty knowledge. They did not also declare these profits to Nissho Japan/Sojitz Japan or Nissho Singapore/Sojitz Singapore.

66 Their guilty knowledge was further buttressed by their conduct during investigations and during the trial. As shown in the preceding paragraphs, Masui had admitted lying to the CPIB about the ‘profit pool’ because he wanted to hide the fact that he was profiting personally from the arrangement from the CPIB. There was no need to do so if he had genuinely believed that the money were from a genuine profit-sharing arrangement. Both accused persons had sought to downplay their power to affect Chia Lee. Ishibe, in particular, lied in court about his involvement in Chia Lee’s appointment as the industrial flour distributor. The lie was only necessary because he knew that the appointment was not above board.

(f) Did the accused persons engaged with one another in a conspiracy to obtain corrupt gratification from Koh?

67 The essence of a conspiracy is agreement. One way of proving this was to show that “the words and actions of the parties indicate their concert in the pursuit of a common object or design, giving rise to the inference that their actions must have been coordinated by arrangement beforehand”: PP v Yeo Choon Poh [1993] 3 SLR(R) 302 (at [19], [20]). The accused persons did not dispute that there was an agreement between them to enter into a profit-sharing arrangement with Koh. There was also no dispute that they contacted one another about the arrangement throughout the relevant period of the charges. Therefore the accused persons had engaged with one another in a conspiracy to obtain corrupt gratification from Koh.

CREDIBILITY OF THE WITNESSES

(a) Was Koh a credible witness?

68 Koh had given evidence in a frank and forthright manner. He made no attempt to downplay the corrupt purpose of the payments. In the process, he had candidly and unreservedly implicated himself in the corrupt payments. I would therefore accord his evidence significant weight given that there was no reason or motive for Koh to implicate the accused persons in court and thus expose himself to prosecution: Sim Bok Huat Royston v PP [2001] 1 SLR(R) 588 (at [27]). He tried his best to recall events which had taken place more than 10 years ago. Given the significant lapse of time, his inability to recall certain matters with precision was normal and expected. His frank concessions about not being able to recall details cloaked his evidence with a ring of truth.

69 More pertinently, his evidence on the material and relevant points was internally consistent. He gave clear and cogent evidence about the purpose of the payments, how they were made, how the handwritten notes came to be prepared contemporaneously, and the discussions he had with the accused persons throughout the relevant period. His evidence was also externally consistent with the extrinsic evidence. For example, his handwritten notes were corroborated by objective evidence in the form of company invoices, bank deposit slips (P27), and bank statements (P28 and P29).

(b) Were the accused persons credible witnesses?

70 In contrast to Koh, the accused persons were evasive, even when answering the most straightforward questions. For example, when asked if their memory would have been better at the time their statements were recorded or at the trial 10 years later, Ishibe skirted the question by claiming that he did not know^{[note: 95]}, while Masui absurdly declared that his memory of events was clearer at trial than when he gave his statement to CPIB which was closer to the events^{[note: 96]}. I also noted that throughout the trial, Masui showed a propensity to beat around the bush rather than answer questions put to him directly and squarely^{[note: 97]}.

71 More pertinently, they were evasive on material issues such as the total amount of money which they received from Koh, their power to recommend the appointment and removal of flour distributors, and the absence of any recommendation for the appointment of another industrial flour distributor. Huge chunks of their testimonies at the trial were inconsistent with their statements to the CPIB. The three main areas where the inconsistencies were found are –

(i) whether Ishibe had been involved in the appointment of Chia Lee as an industrial flour distributor;

(ii) the reason why they had agreed to enter into the profit-sharing arrangement with Koh; and

(iii) how the profits received from Koh were used.

72 On a last note, an incident occurred during the trial when Ishibe was questioned by the court concerning an allegation that he had spoken to his Japanese counsel during the lunch break when he had completed giving his evidence. The court asked a very simple, straightforward question, “Did you speak to your lawyer?”. Instead of answering the question head-on, his answers ranged from the obtuse “I cannot remember”, to the inexplicable “I don’t think I talked to her”, to the facetious “I was not aware” and lastly to the patently ludicrous “I might speak to her without intention or unconsciously”. This episode gave a flavour of the accused persons’ mendacious nature that was vividly exhibited during the course of the trial.

CONCLUSION

73 I found that the weight of the evidence favoured the account of events narrated by Koh. He was consistent and clear in his testimony. By contrast, the accused persons’ testimony were riddled with inconsistencies, and on some material issues, plainly untrue. I therefore found the accused persons guilty of all charges and I duly convicted them.

ACCUSED PERSONS’ ANTECEDENTS

74 Both accused persons are first offenders.

PROSECUTION’S SUBMISSION ON SENTENCE

75 The Prosecution submitted that there was a need to set up a sentencing framework for corruption case, proposing the sentencing band approach similar to that adopted in Ng Kean Meng Terence v PP [2017] SGCA 36; [2017] 2 SLR 449 (“Ng Kean Meng”) which involved the offence under s 375(1) of the Penal Code, Cap 224, and which was subsequently adopted by the Court of Appeal and the High Court for other offences, including s 304A(a)^{[note: 98]} of the Penal Code and s 33 of the Enlistment Act. Their rationale for making this proposal was two-fold. One, the sentences imposed in egregious corruption cases did not appear to have engaged the full spectrum of punishment provided by Parliament. Two, there has been no definitive guidance laid down as to how sentences imposed were calibrated against the full range of the prescribed sentence.

76 On the basis of their proposed sentencing band approach, the Prosecution sought a sentence of 12 to 18 months’ imprisonment in respect of each charge. And having considered the totality principle, they sought a total aggregate sentence of 72 months’ imprisonment for each accused person. They submitted that the proposed aggregate sentence was appropriate in light of the severity and scale of the offences committed as well as the need to send a strong deterrent message to the public of our zero tolerance policy towards corruption. The Prosecution highlighted recent statistics which showed that private sector corruption cases formed the majority of corruption cases in Singapore (92% of 103 cases investigated), and the number of private sector individuals prosecuted have increased by 32%^{[note: 99]}.

THE MITIGATION

77 The Defence highlighted the accused persons’ clean record. Ishibe is married with two children, aged 21 and 18. His wife resides with him in Singapore, while his two children are studying in Japan. Masui is married with two children, aged 19 and 16. His wife and children reside in Japan. The Defence said that both had cooperated fully with the CPIB during investigations. Their employment had been terminated sometime in February 2010, which meant not just loss of job security but also their retirement benefits. This has caused hardship to them. Currently they operated a small business, through which they have established a business relationship with Nippon Flour Mills in order to support themselves and their families. A long custodial sentence would mean an end to their business, and repatriation.

78 The Defence also highlighted that the accused persons had made restitution of S$200,000 to Sojitz Corporation (Japan) and Sojitz Asia Pte Ltd. This was the amount in the form of a judgment which was awarded against them in a civil suit in Japan taken out by the company. The judgment had been registered with the High Court here. They paid the amount in instalments and it was fully paid up on 15 Nov 17. In addition, the accused persons had also paid US$240,000 to Koh in June 2005 as was disclosed in the trial.

79 On the Prosecution’s proposed sentencing band approach, the Defence argued that it was not suitable for corruption offences because it was quantitative in nature. The main element of corruption was the mental element ie, corrupt intent, and this has a qualitative element. Therefore the sentencing band approach would not be able to adequately consider the qualitative emphasis to be placed on the aggravating offence-specific factors.

80 The Defence submitted for a framework along the lines of a harm/culpability matrix, which he argued was supported by the decided cases. And applying this framework, the sentences sought by the prosecution were manifestly excessive. The Defence’s position was that the present case was on all fours with Leng Kah Poh. However, the Defence did not give an indication of what the appropriate sentence ought to be.

THE COURT’S DECISION

Sentencing Band Approach – Why Adopt?

81 I agreed with the Prosecution’s submission on the adoption of the sentencing band approach. On a side note, I would like to highlight that the Prosecution had made the same sentencing submissions in another corruption case which was also dealt by me after this case was concluded: see PP v Gursharan Kaur Sharon Rachael [2018] SGDC 217. In that case, the accused person had pleaded guilty to, inter alia, three s 6(a) PCA offences. I agreed with the Prosecution’s submissions there, and I applied the sentencing band approach. The matter is now pending appeal against sentence. I have set out my full grounds of decision on, inter alia, why I applied the sentencing band approach in that case. I set out substantively the same reasons why I agreed with the Prosecution in this present case.

82 In PP v Hue An Li [2014] 4 SLR 661 (“Hue An Li”), a three-judge panel of the High Court affirmed the principle that it was incumbent on a sentencing court to take note of the statutory maximum sentence and determine precisely where the offender’s conduct falls within the spectrum of punishment devised by Parliament (at [59]). This principle formed the bedrock of all sentencing frameworks established by the Court of Appeal and the High Court post-Hue An Li. It sought to strike an appropriate balance between upholding Parliament’s intent, and ensuring that an appropriate sentence is imposed on the facts of each individual case.

83 As the Prosecution rightly pointed out, an analysis of the sentences meted out in corruption cases suggested that in a number of significant and egregious cases, the sentencing courts seemed not to have engaged the full spectrum of punishment prescribed by Parliament. The prescribed sentences for offences under ss 5 and 6 PCA was a fine not exceeding SGD 100,000 or a term of imprisonment not exceeding five years, or both. However, the terms of imprisonment meted out have rarely exceeded half of the maximum term allowed under the law, even for egregious cases of corruption involving sustained and systematic offending and where the amount of the bribes were large. Some examples of these cases were, inter alia –

(i) PP v Peter Benedict Lim Sin Pang [2013] SGDC 192 (“Peter Lim”) – the accused was the commissioner of the Singapore Civil Defence Force (“SCDF”). He obtained gratification in the form of oral sex from a general manager of a vendor to the SCDF, as an inducement for advancing the business interest of the vendor. He assisted the vendor in respect of a tender for the purchase of radiation monitors, in that, he gave the general manager of the vendor advance notice of an upcoming tender for radiation monitors. This advance notice gave the vendor a clear head start in its bid for the contract. The accused was sentenced to six months’ imprisonment.

(ii) PP v Ang Seng Thor [2011] 4 SLR 217 (“Ang Seng Thor”) – the accused was a joint managing director and CEO of a listed company who had initiated the payment of some SGD 207,508.10 in bribes in a pre-meditated and systematic manner. He was sentenced to 12 weeks’ imprisonment and fined SGD 50,000.

(iii) PP v Teo Chu Har [2014] 4 SLR 6000 (“Henry Teo”) – the accused was a senior director of logistics and sat on various tender committees. Between 2006 and 2010, he obtained SGD 576,225 worth of bribes. As part of his modus operandi, he set up a company using nominees and awarded contracts to this company. He was sentenced to six months’ imprisonment.

(iv) Leng Kah Poh –The accused, a food and beverage manager of IKEA Singapore, faced 80 charges of accepting bribes of over SGD 2.34 million, over six and a half years, as inducement for being partial in placing orders for food products. He was sentenced to 98 weeks’ imprisonment ie less than two years’ imprisonment. This despite the case being described as “one of the largest cases of private sector corruption in terms of the total amount of gratification paid” (at [122]).

84 In PP v Syed Mostofa Romel [2015] 3 SLR 1166 (“Romel”), Menon CJ established an analytical framework to be used as a starting point to assess the type of corruption disclosed in any case involving corruption offences. Pursuant to that decision, the State Courts then developed its sentencing practice in accordance with this analytical framework. Although Romel was helpful in that sense, it did not establish any sentencing tariffs for corruption cases. As rightly pointed out by the Prosecution, there was no case since then that offered considered or comprehensive guidelines as to how the harm caused by the offence and the offender’s culpability should be assessed and calibrated against the full range of sentences prescribed for ss 5 and 6 PCA offences. This sat in contradistinction to other categories of offences where guideline judgments have been issued, for example -

(i) Defaulting on National Service under s 33 of the Enlistment Act (PP v Sakthikanesh s/o Chidambaram and others [2017] 5 SLR 707) (“Sakthikanesh”);

(ii) Aggravated outrage of modesty under s 354(2) PC (GBR v PP [2017] SGHC 296) (“GBR”);

(iii) Causing death by doing a rash act under s 304A(a) PC (PP v Ganesan Sivasankar [2017] SGHC 176) (“Ganesan”); and

(iv) Sexual assault by penetration under s 376(2) PC (Pram Nair v PP [2017] SGCA 56; [2017] 2 SLR 1015) (“Pram Nair”).

85 I therefore agreed with the Prosecution that it was timely to establish such a sentencing framework in the form of a sentencing band. The sentencing band approach called for “a general holistic assessment of the seriousness of the offence by reference to all the offence-specific factors rather than just the “principal factual elements”” (Ng Kean Meng at [37]). Therefore it was very appropriate for offences like corruption as corruption could take place in a wide variety of different circumstances ranging from payments of bribes to fix football matches to shielding a person from investigation or prosecution.

The Sentencing Band Approach - Methodology

86 In applying the sentencing band approach, I adopted the four-step methodology as framed by the Prosecution –

(i) Step 1: Identify the significant offence-specific factors, which would include factors such as the triggering of the public sector rationale, pre-meditation, and abuse of trust and confidence.

(ii) Step 2: Classify the offence into one of the four sentencing bands based on the number of significant offence-specific factors present, and their severity, to derive the indicative starting point sentence within the sentencing band. In exceptional cases, the court might decide on an indicative starting point that fell outside the prescribed range. Cogent reasons should be given for such a decision. Considering where the offence fit in the context of the categories in Romel was one such justification for an indicative starting point outside the prescribed bands.

(iii) Step 3: Adjust the starting point to take into account offender-specific factors which are personal to the offender ie, factors that relate to the offender’s personal circumstances such as remorse or relevant antecedents. By definition, they cannot be the same factors which have already been taken into account in determining the categorisation of the offence.

(iv) Step 4: Make further adjustment of the individual sentence to take into account the totality principle, where an accused faces multiple charges, and it is necessary for two or more sentences to run consecutively, so that the global sentence is not crushing.

87 It must be emphasised that, the sentencing band applied to sentencing after trial: see Logachev Vladislav v PP [2018] SGHC 12 (“Logachev”). Aspects of the framework, such as the offence-specific factors, might be reconsidered and refined with the accretion of case-law (see [74] of Logachev). In the case where the offender has pleaded guilty, appropriate revision downwards should be made to the sentencing bands to reflect the guilty plea.

88 I now proceed to elaborate on each step.

Step 1: Identifying the offence-specific factors

89 At this stage of the inquiry, the number of significant offence-specific aggravating factors of the corruption offence would have to be considered. This was to determine which sentencing band the offences fell into. The list of offence-specific factors set out below has been drawn from the sentencing considerations expressed from the case-law.

(i) High amount of gratification

90 The presence of a high amount of gratification ie, more than $30,000, was a significant aggravating factor. The threshold sum of $30,000 was derived from Heng Tze Yong v PP [2017] 5 SLR 976 (at [21])(“Heng Tze Yong”), which cited Menon CJ in Romel (at [20]).

(ii) The presence of a web of corruption

91 It is a significant aggravating factor if the offence involves a large number of people who are drawn into the web of corruption: Ang Seng Thor (at [33(d)]. This was consistent with the comments made by Menon CJ in Yap Ah Lai v PP [2014] 3 SLR 180 (at [31]) which was cited in Ding Si Yang v PP and another appeal [2015] 2 SLR 229 (at [73]) that an offence that was committed as part of a syndicate was an established aggravating actor that would justify an enhanced sentence in the interest of general deterrence. By way of illustration, see PP v Ling Chun Teck Donald [2017] SGDC 20 (“Ling Chun Teck”), where the accused person, a director of a vendor company operated a corrupt business practice by way of a ‘referral fee’ scheme to induce the staff of managing agents of various MCST properties to advance the business interest of his company. He had cultivated 12 of his sales staff to carry out this corrupt business practice.

(iii) Sustained and persistent offending

92 An offence conducted over a sustained period makes the offence more serious. The period over which the bribe payments were made or received was a relevant aggravating factor: Practitioners’ Library: Sentencing Practice in the Subordinate Courts, Vol 2 (LexisNexis, 3^rd Ed 2013) at page 1375.

(iv) Pre-meditation and planning

93 The greater the extent of pre-meditation and planning, the more serious the offence was. As a practical point, sophisticated offences generally require significant planning eg, reaching an agreement to mark up a contract price so that the giver can fund the bribe payment. Evidence of attempts to conceal and/or dispose of evidence could also be used to infer pre-meditation and planning.

(v) Mastermind or initiator of the corrupt transaction

94 The fact that the accused initiated or masterminded the corrupt transaction was a significant aggravating factor: see Heng Tze Yong (at [30]).

(vi) Abuse of trust and authority

95 The greater the exploitation of trust or authority in the commission of the offence, the more serious the offence. In Ang Seng Thor (at [55]), the High Court found that the accused’s position as CEO was an aggravating factor. Similarly, in PP v Marzuki bin Ahmad [2014] 4 SLR 623 (at [28(d)]), Menon CJ commented that “[t]he offender’s seniority and position within the organisation”, “and the nature of the duty owed to that organisation” was a relevant factor in sentencing. The level of control enjoyed by the offender over whether any action would be taken or not taken as a result of his corrupt act is also a relevant factor. If the accused applied coercion, intimidation or exploitation in soliciting or offering the bribe, this would constitute a significant abuse of trust and authority.

(vii) The extent and manner in which the offence undermines the confidence in strategic industries

96 Any corrupt act which occasioned a loss of confidence in a strategic industry was an aggravating factor: Ang Seng Thor (at [34]). However, there must be sufficient nexus with the industry in question, such that a stiffer sentence would be necessary to prevent a loss of confidence in that industry: see Heng Tze Yong (at [41] to [43]).

(viii) The triggering of the public sector rationale

97 The seriousness of the offence is elevated if it occasioned a loss in confidence in Singapore’s public administration. As illustrated in Ang Seng Thor (at [33(c)]) and Romel (at [23] to [24]), this could also occur in private sector corruption situations where the subject matter of the offence involves a public contract or a public service. For example, the public sector rationale might be triggered in private sector corruption offences, involving regulatory or oversight roles such as that of marine surveyors: see Lim Teck Chye v PP [2004] 2 SLR(R) 525 (at [66] to [68]).

(ix) Substantial benefit or harm as a result of the corruption offence

98 The fact that the accused enjoyed substantial benefit from the corruption offence was a significant aggravating factor. Likewise if substantial harm or detriment was visited upon a party as a result of the corrupt transaction. Instances of substantial harm could include the perpetuation of serious risk to the safety of individuals as a result of a forbearance to properly inspect or where a high amount of pecuniary loss was caused to the principal of the receiver of the bribe (see Romel at [37]).

(x) Offending motivated by concealment/facilitation of other criminal activity

99 The seriousness of a corruption offence would be elevated if the offence was motivated by the concealment or facilitation of other criminal activity. For example, bunker surveyors helping to cover up criminal breach of trust offences.

(xi) Offences that have a transnational character

100 The seriousness of a corruption offence was elevated if the offence has a transnational character.

(xii) The Romel categories are still relevant

101 Within this new framework, the Romel categories of corruption offences remained a relevant tool in determining the appropriate sentence to be imposed. The Romel categories would assist the sentencing court to get an overall impression of the seriousness of the offence. For example, where the offence falls within category 1, a non-custodial sentence would be appropriate if fewer than two offence-specific factors are present. If an offence falls into category 3, it would typically encapsulate two of the offence-specific factors and should be severely dealt with.

Step 2: Classifying the offence into a sentencing band

102 I accepted the proposed four sentencing bands for corruption offences as proposed by the Prosecution, which was set out in the table below. The sentencing bands and the sentence ranges were adapted from GBR (at [31]). GBR was used as a guide because it involved the offence of aggravated outrage of modesty under s 354(2) Penal Code, which carried a maximum imprisonment term of five years. This was the same for both ss 5 and 6 PCA offences –

BAND	SENTENCE	OFFENCE-SPECIFIC FACTORS
1	Fine	Less than 2
2	Up to 1 year	2 or more
3	1 to 3 years	4 or more
4	3 to 5 years	6 or more

103 Band 1 comprised cases which registered low level of seriousness and could be dealt with by imposing fines. Such cases featured fewer than two offence-specific aggravating factors or where the offence-specific factors (if more than two) were only present in a limited manner. An example of a Band 1 case was Heng Tze Yong. In that case, the imprisonment term imposed by the District Court was set aside by the High Court and substituted with a fine. Chao JA found that the low amount of gratification in that case (S$7,000) was an important factor that militated against an imprisonment term being imposed. He also found that the absence of detriment to the principal was another factor which indicated that the case had not crossed the custody threshold. The fact that the accused, who was the giver, did not initiate the bribe but had done so on the request of the receiver, was a further reason cited by Chao JA not to impose a custodial sentence.

104 Band 2 comprised cases which crossed the custodial threshold but were at the lower end of the spectrum of seriousness and therefore attract a custodial sentence of up to one year imprisonment. Such cases featured at least two or more significant offence-specific aggravating factors. Some examples are –

(i) PP v Toh Hong Huat [2016] SGDC 198 – The accused was a manager in Nestle. He received corrupt gratification from a subcontractor on 29 occasions in return for recommending the subcontractor for the project with Nestle. The total amount of gratification was S$62,071. He was convicted on 29 counts under s 6(a) PCA. The significant offence-specific factors were the large amount of bribes received, the fact that the offences were committed over a lengthy period of time, and the fact that there had been a serious abuse of trust on the part of the accused.

(ii) Mathew Koottappillil Mathew v PP [2017] SGHC 37 – The accused was a supervisor at Shimizu Corporation and his job involved overseeing the sale and purchase of construction materials. Over a four month period in 2012, the accused corruptly obtained bribes amounting to S$1,500 from one Hong Meng Choon, who operated a company in the business of buying scrap metal. The bribes were given so that the accused would turn a blind eye to the understatement of scrap metal purchased by Hong Meng Choon. The significant offence-specific factors were (i) the offences were committed over a prolonged period, (ii) the actual loss caused by the accused to the Shimizu Corporation and (iii) the abuse of supervisory role held by the accused in Shimizu Corporation.

105 Band 3 comprised cases at a higher level of seriousness and attracted sentences in excess of one to three years’ imprisonment. Such cases featured at least four or more significant offence-specific aggravating factors. Some examples were Ang Seng Thor and Ding Si Yang -

(i) In Ang Seng Thor, the offender, who was the CEO and Joint Managing Director of AEM at the time of the offences, paid S$97,158 to a business partner in March 2005. Sometime later, the offender with another business associate agreed to offer a bribe of S$50,000 to a director of another company to show favour to AEM’s bid to supply the machines. In that case, the offence-specific aggravating factors were (i) the fact that the accused was a high ranking officer of the company, (ii) the significant amount of gratification paid, (iii) the benefit enjoyed by the accused as a result of the corrupt transaction, and (iv) the offences were committed over a prolonged period of three months.

(ii) In Ding Si Yang, the accused was convicted of offering bribes to football match officials. In that case, the offence-specific aggravating factors were (i) the accused had initiated the corrupt transaction, (ii) the large scale of the accused’s corruption, (iii) the offence undermined the confidence in a strategic industry, namely, professional sports and in the particular football, (iv) the accused’s intention to corrupt the match officials so that they would compromise future games at his bidding and to groom them to fix numerous future matches.

106 Band 4 comprised cases which, by reason of the number and intensity of aggravating factors, were extremely serious cases of corruption. Such cases would usually contain six or more significant offence-specific aggravating factors and would attract sentences in excess of three years’ imprisonment. An example of a Band 4 case was Leng Kah Poh. The offence-specific aggravating factors in that case were (i) the high amount of gratification obtained, (ii) the abuse of trust by the accused, (iii) the extent of pre-meditation and planning, (iv) the harm to the principle, (v) the offender’s role as mastermind of the corrupt enterprise, and (vi) the substantial benefit enjoyed by the accused.

107 It bears repeating that in exceptional cases, the court might decide on an indicative starting point which fell outside the prescribed range, but cogent reasons should be given. Consideration of where the offence sat in the context of the Romel categories was one such basis for applying an indicative starting point outside the above-mentioned prescribed bands.

Step 3: Adjusting the sentence based on offender-specific factors

108 After determining the indicative starting point in Step 2 above, the court should proceed to consider the offender-specific factors and adjust the indicative starting point upwards or downwards. It was important to note that the court should avoid double-counting these factors by taking them into account both in determining the individual sentences and how many sentences to run consecutively. The non-exhaustive list of offender-specific factors identified in Logachev are adopted as they were observed to be “generally applicable across all criminal offences” (at [36]). These factors were set out below -

Aggravating factors	Mitigating factors
(a) TIC offences (b) Relevant antecedents (c) Evident lack of remorse	(a) Guilty plea (b) Voluntary disgorgement of the value of bribes and benefit derived from the bribes, or restitution to minimise or avert wrongful loss/restore wrongful gain, and/or steps taken to alleviate other non-financial consequences (c) Cooperation with authorities

109 It should be noted that while Logachev identified “relevant antecedents” as an aggravating factor, “previous good character” was omitted as a mitigating factor. This was consistent with the principle that a clean record did not necessarily entitle the offender to a sentencing discount, particularly for serious offences, and/or for offences involving an element of abuse of trust.

110 The mitigating factor of “voluntary restitution” included restitution for both wrongful loss and gain, as well as gave credit for mitigating steps taken to alleviate non-financial consequences, eg, the impact on public confidence. The disgorgement of benefits obtained through the corruption offence was also another factor to consider when assessing the offender’s remorse.

Step 4: Adjusting for totality principle

111 Where there were multiple charges, it was necessary to recalibrate the sentences imposed for each offence so as not to offend the totality principle (particularly with reference to s 307(1) of the Criminal Procedure Code (Cap 68) on consecutive sentences). The court must proceed sequentially. It must first decide the appropriate sentences for each offence without considering the totality principle. After that, the court would then decide on the adjustments that were required to be made to the individual sentences imposed in the light of the totality principle: Mohammed Shouffee bin Adam v PP [2014 2 SLR 998 (at [66] (“Mohammed Shouffee”).

APPLICATION OF THE SENTENCING BAND APPROACH

Step 1: Identifying the offence-specific factors

112 In my view, the accused persons’ conduct in the present case fell into the Romel category 3 cases. This was where the corruption involved interference with or deprivation of a person’s legitimate rights; in this case, Koh. The accused persons had threatened to negatively affect Koh’s edible flour business if he refused to participate in their corrupt profit-sharing arrangement. As CJ Menon observed in Romel, this category was characterised by the heightened culpability of the receiving party and would be severely dealt with by the courts.

113 I agreed with the Prosecution that there were five offence-specific factors common to the corruption charges.

(i) High amount of gratification

114 The amount involved in each charge ranged in the tens of thousands and the total amount of corrupt gratification was S$2,051,402. This was one of the highest amounts involved in a corruption case to date.

(ii) Sustained period of offending

115 The corrupt arrangement persisted for five years. It began sometime in 2002 and only ended sometime in 2007. This was notwithstanding that fact that the charges only reflected payments made between February 2004 and November 2007. It was pertinent to note that the profit-sharing arrangement ended because Sojitz Japan had taken control of Chia Lee’s accounts, and not because the accused persons had stopped the arrangement on their own volition.

(iii) Mastermind or initiator of the corrupt transactions

116 The evidence clearly pointed to the accused persons as the mastermind of the corrupt transactions. They came up with and initiated the profit-sharing arrangement. They manoeuvred for Chia Lee to be appointed as the industrial flour distributor. They strong-armed Koh into agreeing to participate in the scheme.

(iv) Significant abuse of trust and authority

117 The accused persons were in a position of authority vis-à-vis Koh. Ishibe was the main point of contact between Koh in Singapore and was in charge of negotiations with Koh in relation to edible flour sales. Masui took over Ishibe’s role and was promoted to General Manager of the Foodstuffs Department of Nissho Singapore/Sojitz Singapore before being subsequently appointed as General Manager of the Foodstuffs Department of Nissho Japan/Sojitz Japan. In this position, he was not only responsible for the flour business in Japan, but also oversaw the flour business worldwide.

118 Even taking the Prosecution’s case at its lowest, the accused persons had conceded that they had the power to recommend the appointment and removal of local flour distributors. Their concessions took on additional significance in light of Miyamoto’s evidence that Nippon Flour Mill’s knowledge of distributors in Singapore was based on information provided by the staff of Nissho Singapore/Sojitz Singapore ie, the accused persons.

119 The accused persons had taken advantage of their power and authority in two ways. First, they exerted undue pressure on Koh to enter into the corrupt agreement and subsequently to prevent Koh from backing out. Second, they had exploited their position of trust in the company by recommending the appointment of Chia Lee as the industrial flour distributor so that they could put the corrupt scheme in place. These constituted significant abuses of trust and authority.

(v) Pre-meditated offending

120 In order to put the corrupt arrangement into effect, the accused persons manoeuvred to have Chia Lee appointed as the industrial flour distributor. This appointment was critical to their corrupt plan because they knew that they had significant influence over Koh through his edible flour business, and they knew they could take advantage of Koh by leveraging on that. They also knew that they did not have the same influence over the alternative distributors.

Step 2: Classify the offences into the appropriate sentencing bands and determine the indicative starting points

121 I agreed with the Prosecution that based on the offence-specific factors set out above, the case fell into sentencing band 3 of the sentencing band framework (at [102]). As such the starting point sentences for the charges should be–

(i) for charges where the amount of gratification was less than S$30,000, the starting point was 12 months’ imprisonment;

(ii) for charges where the amount of gratification was between S$30,000 to S$50,000, the starting point was at least 12 months’ imprisonment;

(iii) for charges where the amount of gratification was more than S$50,000 to S$100,000, the starting point was at least 15 months’ imprisonment; and,

(iv) for charges where the amount of gratification was more than S$100,000, the starting point was at least 18 months’ imprisonment.

Step 3: Adjust the starting point to take into account offender-specific factors

122 I did not find any offender-specific factor which warranted a downward adjustment of the individual starting point sentences. On the contrary, I agreed with the Prosecution’s submission that the accused persons’ conduct during the trial showed a singular lack of remorse on their part. All the unsavoury aspects of their conduct at trial have already been discussed in the preceding paragraphs.

123 Therefore, the individual sentences for Masui were as follows –

DAC 907306/15 DAC 907318/15 DAC 907322/15 DAC 907325/15 DAC 907329/15 DAC907331/15	18 months’ imprisonment per charge
DAC 907112/15 DAC 907307-9/15 DAC 907311-7/15 DAC 907319-21/15 DAC 907327/15 DAC 907332/15	15 months’ imprisonment per charge
DAC 907310/15 DAC 907323-4/15 DAC 907326/15 DAC 907328/15 DAC 907330/15	12 months’ imprisonment per charge

124 In the case of Ishibe, the individual sentences were as follows –

DAC 907255/15 DAC 907267/15 DAC 907282/15 DAC 907285/15 DAC 907289/15 DAC 907291/15	18 months’ imprisonment per charge
DAC 907041/15 DAC 907256-8/15 DAC 907260-6/15 DAC 907279-81/15 DAC 907287/15 DAC 907292/15	15 months’ imprisonment per charge
DAC 907259/15 DAC 907283-4/15 DAC 907286/15 DAC 907288/15 DAC 907290/15	12 months’ imprisonment per charge

Step 4: Final Adjustment to take into account the totality principle

125 I now considered the aggregate sentence and the totality principle. In doing so, I must bear in mind that the totality principle was not an invariable rule to be rigidly applied. I would have to make the assessment of the totality of the aggregate sentence with the totality of the criminal behaviour.

126 In this case, the severity and scale of the offences, as well as the need to send a strong deterrent message to the public of the zero tolerance policy for corruption in both the public and private sector warranted a significant imprisonment sentence. The Prosecution highlighted that private sector corruption formed the majority of corruption cases in Singapore (92% out of 103 cases investigated), and the number of private sector individuals prosecuted has increased by 32%. There was therefore a need to disabuse and deter an attitude of casually treating corruption as a ‘cost of doing business’ in the private sector.

127 Therefore, in relation to Masui, I ordered the sentences in DAC-907306-2015, DAC-907310-2015, DAC-907329-2015 and DAC-907331-2015 to run consecutively. In relation to Ishibe, I ordered the sentences in DAC-907255-2015, DAC-907259-2015, DAC-907289-2015 and DAC-907291-2015 to run consecutively, making the total aggregate sentence for each accused person 66 months’ imprisonment.

128 The total aggregate sentence was appropriate and warranted. In my view, it did not offend the totality principle. The global sentences did not substantially exceed the sentence that would ordinarily be imposed for the most serious of the individual offences committed, which was imprisonment up to three years for a Band 3 corruption offence.

129 The sentence was also not unprecedented. In the case of Ling Chun Teck, the accused person was sentenced to 30 months’ imprisonment after he pleaded guilty before me. The sentence was upheld on appeal. The amount of gratification in the proceeded charges was S$182,581. The total amount of gratification, inclusive of the 517 stood down charges, was S$461,634.10. This was one-fourth the total amount of gratification in the present case. Therefore, the global aggregate sentence in the present case was not excessive given that the accused persons in the present case had not pleaded guilty, and there were numerous aggravating factors present.

Penalty under s 13 PCA

130 The Defence submitted that any penalty ordered under s 13 PCA should take into account the following two payments which the accused persons had made. These were –

(i) US$240,000 paid by the accused persons to Koh. Taking the exchange rate then at 1.663, the amount paid was S$399,120.

(ii) Restitution of S$200,000 which the accused persons had made to Sojitz Corporation (Japan) and Sojitz Asia Pte Ltd.

131 I disagreed with this submission. From the evidence adduced at the trial, I made the finding that the US$240,000 was paid in order to keep Chia Lee afloat so that the profit-sharing arrangement could continue without interruption. As for the payment of S$200,000 to Sojitz Corporation, this was payment of a judgment in a civil suit which the company initiated against the two accused persons. As such I would not take these two payments into account for the penalty order under s 13.

132 I therefore ordered that each accused person pay a penalty of $1,025,702 in default to serve six months imprisonment.

133 Both accused persons has appealed against their conviction and sentence. They are both on bail pending the appeal.[Context] [Hide Context]

^{[note: 1]}NE, 8 Mar 17, page 92, lines 16-20; NE, 31 Jul 17, page 12, lines 22-24.

^{[note: 2]}NE, 31 Jul 17, page 22, lines 12-16; page 23, lines 21-24.

^{[note: 3]}NE, 8 Mar 17, page 11, line 5-13.

^{[note: 4]}NE, 8 Mar 17, page 19, lines 25 & page 20, line 3; NE 31 Jul 17, page 26, lines 15-24; NE, 3 Aug 17, page 53, lines 16-22.

^{[note: 5]}NE, 8 Mar 17, page 11, lines 5-13.

^{[note: 6]}NE, 31 Jul 17, page 24, lines 7-11. See also Exhibit P3-T.

^{[note: 7]}NE, page 21 Mar 17, page 17, lines 3-13.

^{[note: 8]}NE, 3 Aug 17, page 10, line 22 to page 11, line 2; NE, 18 Sep 17, page 123, line 24 to page 124, line 25.

^{[note: 9]}NE, 20 Mar 17, page 109, lines 14-17.

^{[note: 10]}NE. 18 Sep 17, page 39, lines 11-15.

^{[note: 11]}NE, 21 Mar 17, page 118, line 25 to page 120, line 23.

^{[note: 12]}NE, 18 Sep 17, page 45, lines 3-19.

^{[note: 13]}NE, 24 Mar 17, page 188, lines 5-15.

^{[note: 14]}NE, 18 Sep 17, page 48, lines 6-8.

^{[note: 15]}NE, 18 Sep 17, page 36, lines 4-6.

^{[note: 16]}NE, 18 Sep 17, page 48 line 16 to page 49, line 1.

^{[note: 17]}NE, 20 Mar 17, page 109, lines 14-17.

^{[note: 18]}NE, 20 Mar 17, page 82, lines 14-21; page 83 line 24 to page 84, line 8.

^{[note: 19]}NE, 20 May 17, page 86, lines 5-6.

^{[note: 20]}NE, 21 Mar 17, page 42, line 15 to page 43, line 6.

^{[note: 21]}NE, 20 Mar 17, page 86, lines 18-21; NE 20 Mar 17, page 87, lines 15-16.

^{[note: 22]}NE, 20 Mar 17, page 90, lines 10-18.

^{[note: 23]}NE, 20 Mar 17, page 91, lines 17-25.

^{[note: 24]}NE, 20 Mar 17, page 92, line 25 to page 93, line 10.

^{[note: 25]}NE, 18 Sep 17, page 120, lines 10-13.

^{[note: 26]}NE, 21 Mar 17, page 127, line 21 to page 129, line 5.

^{[note: 27]}NE, 21 Mar 17, page 137 lines 3-16; NE 18 Sep 17, page 117 lines 15-18.

^{[note: 28]}NE, 20 Mar 17, page 20, lines 24-25; page 80, lines 20-25.

^{[note: 29]}Ne, 31 Jul 17, page 29 lines 3-5; NE, 3 Aug 17, page 1 line 22 to page 2 line 7.

^{[note: 30]}NE, 20 Mar 17, page 81 lines 9-12.

^{[note: 31]}NE, 18 Sep 17, page 19 line 20 and page 20 line 8-11.

^{[note: 32]}NE, 22 Mar 17, page 152 line 23 to page 153 line 3.

^{[note: 33]}NE, 21 Mar 17, page 16 lines 17-25; Exhibit P-21 Tab 1 page 4.

^{[note: 34]}NE, 18 Sep 17, page 10 lines 19-23.

^{[note: 35]}NE, 22 Mar 17, page 132 lines 5-25.

^{[note: 36]}NE, 22 Mar 17, page 99 line 2 to page 100 line 10.

^{[note: 37]}NE, 22 Mar 17, page 129 line 7 to page 130 line 15.

^{[note: 38]}NE, 22 Mar 17, page 139 lines 8-10 and 18-20.

^{[note: 39]}NE, 2 Aug 17, page 26 lines 11-19.

^{[note: 40]}NE, 24 Mar 17, page 154 lines 9-15.

^{[note: 41]}NE, 20 Mar 17, page 87 lines 24-25.

^{[note: 42]}NE, 8 Mar 17, page 31 line 16 to page 32 line 3.

^{[note: 43]}NE, 8 Mar 17, page 31 line 16 to page 32 line 12.

^{[note: 44]}NE, 8 Mar 17, page 20 line 23 to page 21 line 14/page 33 lines 3-11.

^{[note: 45]}NE, 8 Mar 17, page 30 lines 6-25; page 31 lines 8-10.

^{[note: 46]}NE, 8 Mar 17, page 35 lines 6-9; page 36 lines 2-16.

^{[note: 47]}NE, 8 Mar 17, page 68 lines 4-17; page 69 lines 11-16.

^{[note: 48]}NE, 2 Aug 17, page 55 lines 5-7 and 21-24; NE, 18 Sep 17, page 17 lines 7-21.

^{[note: 49]}NE, 31 Jul 17, page 39 lines 7-10.

^{[note: 50]}NE, 3 Aug 17, page 3 lines 16-19; NE 18 Sep 17, page 120 lines 8-13.

^{[note: 51]}NE, 3 Aug 17, page 5 lines 5-9; NE 18 Sep 17, page 119 line 24 to page 120 line 4.

^{[note: 52]}NE, 18 Sep 17, page 119 lines 12-17.

^{[note: 53]}NE, 3 Aug 17, page 4 lines 18-22; NE 18 Sep 17, page 119 line 23 to page 119 line 5.

^{[note: 54]}NE, 3 Aug 17, page 40 lines 1-12.

^{[note: 55]}NE, 13 Nov 17, page 24 line 2 to page 25 line 12.

^{[note: 56]}NE, 18 Sep 17, page 121 lines 7-12.

^{[note: 57]}NE, 31 Jul 17, page 49 line 19 to page 51 line 3; page 54 line 5-6; page 55 lines 8-20.

^{[note: 58]}NE, 3 Aug 17, page 75 lines 11-17; page 76 lines 3-8.

^{[note: 59]}NE, 2 Aug 17, page 56 lines 19-23; page 57 line 5 to page 59 line 2.

^{[note: 60]}NE, 8 Mar 17, page 104 line 13 to page 105 line 4.

^{[note: 61]}At [25] to [27]; NE, 18 Sep 17, page 69 lines 4-11 confirmed one amendment to statement that it was a telephone conversation.

^{[note: 62]}NE, 3 Aug 17, page 75 line 11 to page 76 line 4.

^{[note: 63]}NE, 3 Aug 17, page 76 lines 3-6.

^{[note: 64]}NE, 18 Sep 17, page 35 lines 10-13.

^{[note: 65]}NE, 18 Sep 17, page 34 lines 24-25.

^{[note: 66]}NE, 18 Sep 17, page 70 line 3 to page 71 line 6.

^{[note: 67]}NE, 18 Sep 17, page 84 lines 6-22; NE, 18 Sep 17, page 85 line 14 to page 86 line 3.

^{[note: 68]}NE, 24 Mar 17, page 182 lines 20-25 and page 183 lines 1-7.

^{[note: 69]}NE, 18 Sep 17, page 83 lines 7-10.

^{[note: 70]}NE, 3 Aug 17, page 87 line 21 to page 88 line 11.

^{[note: 71]}Exhibit P33, page 3, Q&A4.

^{[note: 72]}NE, 18 Sep 17, page 109 lines 15-20.

^{[note: 73]}NE, 18 Sep 17, page 109 line 21 to page 111 line 4; page 112 line 4-8.

^{[note: 74]}NE, 2 Aug 17, page 8 lines 12-23; page 9 lines 11-16; page 74 lines 1-15.

^{[note: 75]}Exhibit P30 at [20] to [21].

^{[note: 76]}NE, 2 Aug 17, page 81 lines 1-24.

^{[note: 77]}Exhibit P31 at [48 A6]; NE, 2 Aug 17, page 85 lines 6-20.

^{[note: 78]}NE, 3 Aug 17, page 27 line 23 to page 29 line 2.

^{[note: 79]}NE, 2 Aug 17, page 78 lines 7-12.

^{[note: 80]}NE, 2 Aug 17, page 31 lines 2-12.

^{[note: 81]}NE, 3 Aug 17, page 78 line 5 to page 79 line 8.

^{[note: 82]}NE, 18 Sep 17, page 96 lines 20-22.

^{[note: 83]}NE, 18 Sep 17, page 96 line 23 to page 97 line 2.

^{[note: 84]}NE 18 Sep 17, page 97 lines 3-5.

^{[note: 85]}NE, 24 Mar 17, page 123 lines 9-12.

^{[note: 86]}NE, 3 Aug 17, page 82 line 13.

^{[note: 87]}NE, 3 Aug 17, page 81 lines 19-22.

^{[note: 88]}Annex B of the Prosecution’s Closing Submission.

^{[note: 89]}NE, 18 Sep 17, page 97 lines 22-24; page 100 line 23 to page 101 line 16.

^{[note: 90]}NE, 21 Mar 17, page 94 lines 10-17.

^{[note: 91]}NE, 2 Aug 17, page 86 lines 15-23.

^{[note: 92]}NE, 18 Sep 17, page 99 line 23 to page 100 line 4.

^{[note: 93]}NE, 3 Aug 17, page 10 lines 2-8; page 84 lines 9-12.

^{[note: 94]}Exhibit P12 Rule 5b; Articles 8(9) and 10; Articles 7(11), (13) and (17).

^{[note: 95]}NE, 2 Aug 17, page 16 lines 14-15.

^{[note: 96]}NE, 18 Sep 17, page 50 line 10 to page 51 line 15.

^{[note: 97]}NE, 18 Sep 17, page 18 lines 3-6.

^{[note: 98]}PP v Ganesan Sivasankar [2017] SGHC 176.

^{[note: 99]}‘Record low in graft cases registered for probe’, The Straits Times, 12 April 2018 (at PBOA, Tab W).