OTHER LAWYERS’ VIEWS
CNA contacted some lawyers about the issue, with a few declining comment.
Mr Navindraram Naidu, partner at Dentons Rodyk & Davidson and former deputy director of corruption and financial crimes at AGC, said there is “generally no obligation on the part of law enforcement and the prosecution to explain how prosecutorial discretion was exercised”.
“However, a more detailed explanation by the authorities regarding any evidential difficulties they have alluded to, could assist in giving the public a better appreciation of the basis behind this decision,” he said.
“The long and wide reach of the Prevention of Corruption Act covers corrupt acts done by Singapore citizens overseas,” said Mr Naidu. “In such cases, it may be necessary to secure evidence that is located overseas.”
He said that while such evidence may be obtained via the Mutual Assistance in Criminal Matters Act 2000, there may be practical difficulties in doing so for particular cases.
Even if the relevant evidence can be obtained, its admissibility in court proceedings in Singapore is still another hurdle that needs to be cleared, said Mr Naidu.
However, he said that such challenges in obtaining evidence may not necessarily be insurmountable.
In previous corruption cases, the prosecution has relied on statements of witnesses who are overseas, subject to the appropriate safeguards, he said.
Mr Marshall Lim, partner at Martin & Partners and former deputy public prosecutor and deputy senior state counsel, said the decision to prosecute or not is a multi-faceted one that can be broken down into two main steps:
First, an assessment of whether there is sufficient evidence that discloses an offence, and second, whether it is in the public interest to prosecute.
Among many factors that the prosecution naturally considers is national policy, said Mr Lim.
“In the context of the Keppel Offshore Marine case, the facts are particularly hurtful because it challenges our commitment to zero corruption. All things being equal, it might even be suggested that court prosecution ought to be default when corruption is found,” said Mr Lim.
However, he said that while it might appear logical to prosecute anyone accused of corruption to fulfil this important national policy, this “cannot be an unyielding position that automatically subordinates or diminishes other factors that the prosecution must also consider in determining whether the public interest is served by court prosecution”.
“There is no doubt that our policy of zero corruption must extend to the human actors involved in cases of corporate corruption,” said Mr Lim.
“However, we must take care to avoid prematurely suggesting that a decision not to prosecute in one case threatens our commitment to law and order or reflects an erosion of our ethos.”
He said that to do so is “to do injustice to the high constitutional office held by the Public Prosecutor, and the difficult task that he and his officers undertake daily to uphold the rule of law”.
Lawyer Ramesh Tiwary said that people will speculate, because the reasons and criteria applied by the AGC are “unknown or even obscure”.
He said there is a lack of clarity on when and why conditional warnings are given in any particular case.
However, he said there is also equally a problem with requiring full disclosure from the AGC, as some individuals might be legally protected or privileged.
“The AGC may have information which they may not want to divulge, to protect a source, or that information may be legally privileged and thus cannot be made public,” he said.
CNA has contacted CPIB and AGC for comments.
ASSERTIONS BASED ON “INADEQUATE UNDERSTANDING OF FACTS”: INDRANEE
Ms Indranee said in her Facebook post on Thursday that she was aware that “some people have made assertions about the stern warnings” issued to the Keppel O&M staff in lieu of prosecution.
“These assertions are being made based on an inadequate understanding of the facts and of the Deferred Prosecution Agreement between (Keppel O&M) and the United States Department of Justice and the United States Attorney’s Office,” she said.
She said she would explain the facts in Parliament on Feb 6.
“As a country and as a Government, we do not condone or tolerate corruption,” she said.
“This has always been our position, and continues to be so. If there were grounds and sufficient evidence to bring criminal charges, they would have been brought. At the same time, criminal proceedings cannot be initiated based on sentiment. The rule of law applies both ways.”