K Shanmugam raises possibility for deferred prosecution agreements for corporate offences

Source: Channel News Asia.

Speaking at a dialogue organised by the Law Society of Singapore on Monday (15 January), Law and Home Affairs Minister K Shanmugam said that deferred prosecution agreements (DPAs), a legal tool that US authorities used in the Keppel O&M bribery case, could be introduced here as part of proposed changes to Singapore’s criminal justice system.

A DPA is a voluntary alternative in which a prosecutor agrees to grant amnesty in exchange for the corporate defendant agreeing to fulfil certain requirements, which came up as part of six new suggestions in the second half of 2017, after an initial round of public feedback in July on 50 proposed amendments to the Criminal Procedure Code (CPC) and Evidence Act.

The minister noted that DPA regimes were not unusual to US and UK jurisdictions saying that in the wake of a global bribery scandal, Keppel Offshore & Marine entered into a DPA with US authorities, requiring the rig-building unit of local conglomerate Keppel Corp to strengthen internal controls, compliance and anti-corruption programmes last December.

He then said that the terms will have to be approved by the High Court if it is to be implemented in Singapore, adding, “The High Court will have to look at what’s fair and what’s reasonable and what’s proportionate and agreements must be published once approved.”

Gregory Vijayendran, Law Society president, was quoted by media to have said it is “a very forward-looking approach for Singapore” and that “will boost our entire corporate climate”.

Mr Vijayendran said, “It’s a very calibrated, very sensible, perhaps overdue innovation welcome on our shores,” stressing it was not a case of “going light” on corporations versus individuals.

He then added, “The question of what constitutes the mind of the corporation and whose state of mind should be imputed to the corporation – these are difficult questions. From the prosecution’s perspective, trying to make that out on a scale of proof that is beyond a reasonable doubt is not easy.”

“It might be due to a few individuals within the company itself – and so does the state throw the book at the company and say those individuals represent the mind of the company? Or will it enter a DPA and that becomes a turning point for the company to put its house in order?” he asked.

“In the administration of criminal justice, it does make sense that in some cases you would weigh the evidence and see whether or not this is a better avenue to pursue,” he ended.


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