Stern warnings was an “in-between” solution as CPIB lacks sufficient evidence to prosecute six former KOM executives for bribery, said Indranee Rajah

Stern warnings was an “in-between” solution as CPIB lacks sufficient evidence to prosecute six former KOM executives for bribery, said Indranee Rajah

SINGAPORE — Indranee Rajah, Minister in the Prime Minister’s Office, has explained that the six former senior management staff members of Keppel Offshore & Marine (KOM) were not prosecuted over a multi-million dollar bribery case due to insufficient evidence to establish their guilt beyond a reasonable doubt.

Earlier in a press statement released on 12 January, the Corrupt Practices Investigation Bureau (CPIB) said stern warnings were issued to six unnamed individuals who were formerly senior management staff of KOM after close to five years of its investigations into offences punishable under the Prevention of Corruption Act (PCA).

This decision was said to have been made in consultation with the Attorney-General’s Chambers (AGC).

In reply to 17 PQ filed by MPs, Minister Indranee Rajah has stated that the CPIB “had done it best” and the enforcement faced difficulties in gathering evidence in the high-profile case.

However, she defended that Singapore’s zero-tolerance policy towards corruption has not changed while no criminal proceedings have been brought in this case.

“In having regard to the rules of evidence, CPIB and AGC are observing the basic rules for a fair and just criminal justice system. What can be inferred from this is that while Singapore has zero-tolerance on corruption, it also strongly adheres to the rule of law, ” she told the House today (6 Feb).

Ms Indranee said the public prosecutor (PP), in deciding whether to charge the six individuals, had to “consider whether he has the necessary evidence to prove that those individuals were involved in certain conduct and possessed a certain mental state to establish the offences”.

The Attorney-General also serves as the PP.

“Simply put, there is a lack of sufficient evidence, either documentary or through witnesses, which would establish any criminal charge beyond a reasonable doubt against a specific individual,” she reiterated the evidential difficulties that CPIB faced.

She said the Deferred Prosecution Agreement (DPA) and related documents were entered into between KOM, the US Department of Justice (DoJ) and the US Attorney’s Office.

KOM USA, a wholly-owned subsidiary of KOM, also entered into a plea bargain agreement with the US authorities and paid a fine which amounted to US$422 million. No individuals were parties to these documents, said Ms Indranee.

“While the documents make references to the actions of certain individuals, I have been advised that those references, on their own, are insufficient to establish any offences beyond reasonable doubt without witnesses testifying in Singapore about the context surrounding those actions and the intention behind them.”

Ms Indranee revealed that CPIB made two fact-finding trips to Brazil in May and August 2019 with the initial assistance of the Brazilian authorities.

Foreign witness refuses to give evidence

According to Ms Indranee, AGC and CPIB sent three mutual legal assistance (MLA) requests to Brazil to secure evidence that was needed. AGC and CPIB also sent an MLA request to another relevant foreign authority to interview other potential material witnesses.

However, AGC and CPIB have either not yielded evidence that could be used to secure a conviction before the Courts, or the responses have not been helpful in advancing the case, according to Ms Indranee.

She added that a foreign witness who gave evidence in other proceedings was not willing to testify in Singapore, and the authorities could not compel him to do so.

One individual involved denied knowing that commissions paid to the agent in Brazil were paid out as bribes

Regarding whether any prosecution could be advanced arising out of the fact that a particular individual involved in the KOM scandal who had entered into a plea bargain in another jurisdiction, Ms Indranee said the individual denied knowing that commissions paid to the agent in Brazil were paid out as bribes when was investigated by CPIB on his return to Singapore.

“He did not, during CPIB’s investigations, implicate himself or any others in conspiring to pay bribes.”

She added that even if the PP applies to a Singapore Court to admit the plea agreement, the agreement did not identify any specific individuals and was made in the context of a plea bargain, and will be given limited weight without further supporting evidence, and in the face of potentially conflicting oral testimony.

Ms Indranee again reasserted that CPIB has conducted as thorough an investigation as it could with the information and powers that it possessed.

“However, given the cross-border nature of this case and absence of key witnesses, CPIB’s investigations could not overcome the evidential difficulties for the purposes of prosecution in a Singapore court.”

She said the PP can reevaluate the decision if compelling and new evidence surfaces.

Ms Indranee said CPIB does not disclose the six individuals name unless they are charged in court

While WP MP Gerald Giam asked PM Lee why CPIB is not naming the six former KOM management staff,  Ms Indranee replied CPIB does not disclose the names of individuals unless they are charged in court, and it is a policy that is not unique to Singapore.

“The principle underlying this policy is to avoid prejudicing that individual’s right to due process, and also to avoid any presumption of guilt in the absence of any formal findings.”

She added that law enforcement agencies in the United States, United Kingdom and New Zealand have a similar approach.

While the Singapore Government has not chosen not to name the six who were issued stern warnings over the offences. The plea agreement and media reports have already identified who these six individuals might be.

CPIB issued 138 warnings annually and prosecuted 139 individuals from 2017 to 2021

Ms Indranee said stern warnings are “not unusual” and are issued in cases with evidential difficulties or little public interest to prosecute.

From 2017 to 2021, CPIB has issued an average of 138 warnings annually and 139 individuals were prosecuted.

Whether Keppel’s board of directors had “constructive knowledge” of the corrupt payments

Pritam Singh, Leader of Opposition, further pressed on the KOM scandal, and asked whether investigations had found that Keppel’s board of directors at the time had “constructive knowledge” of the corrupt payments made to secure contracts in Brazil.

He also sought clarification on the total number of MLAs sent to other jurisdictions and their outcome.

Minister Indranee Rajah responded to the question by stating that constructive knowledge of an offence does not violate the Prevention of Corruption Act. As such, “there’s no reason for CPIB to be investigating this” as it only investigates offences under the Act.

While reiterating that three MLAs were sent to Brazil to secure evidence and one more to another foreign authority, she said: “They haven’t yielded the evidence that could be used to secure conviction, or the responses haven’t been helpful.”

“Whatever CPIB has been able to do or to uncover to us in its investigations in Singapore with respect to Keppel, it has done.”

Ms Sylvia Lim, WP MP for Aljunied GRC, asked if CPIB was unable to secure admissions from the six former KOM executives and whether the key witness for the US DoJ had retracted his confession to the offence.

In response, Ms Indranee said that CPIB has not had any admissions or confessions from the six persons. As for the individual who entered into a plea bargain in another jurisdiction, he was investigated by CPIB on his return to Singapore, but he denied knowing that commissions paid to the agent in Brazil were paid out as bribes.

“So the question is, has he said something different here? I think the answer is yes, but I will not go into details. Firstly, I don’t have details of what exactly was said. What I do know and I am able to say based on what has been informed to me, is that in this particular case, what was said in the U.S. and what has been told to CPIB, there are differences.”

In response to queries by Mr Louis Chua, WP MP for Sengkang GRC on whether the six former executives authorised payments for the bribe, Ms Indranee said she does not know.

Stern warnings was an “in-between” solution

Mr Leon Perera, WP MP for Aljunied GRC, questioned the basis of why stern warnings were issued by the CPIB to the six KOM former executives, given the insufficiency of evidence to mount charges.

In reply, Ms Indranee said a stern warning is given when “you can’t say that you give a complete, clean bill of health but at the same time, you don’t have enough to clear the evidentiary hurdle”.

“So you see, what are the choices: Do nothing at all, or bring charges when you know you don’t have sufficient evidence? Or is there something in-between? The stern warning device is the something in-between.”

She claimed that the stern warning “it’s an expression of AGC’s position that we don’t think that you’re completely off the hook”, as closing the investigation without doing anything would not have been the correct thing to do.

“If the AGC had thrown up its hands and closed investigations, that, too, would not have been the correct thing to do,” she added.

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