John Bray: Singapore adopts new law on DPAs
Monday, April 30, 2018 at 7:28AM
John Bray in Keppel FELS, Singapore, deferred prosecution agreements

Singapore is the latest country to introduce legislation creating a deferred prosecution agreement (DPA) framework for scheduled crimes, potentially including corruption. The Singaporean parliament approved the new law in March as part of a wider package of reforms in the Criminal Justice Reform Act.

In this respect Singapore appears to be part of a broader international trend following the United States, the UK and France, which already have DPA arrangements in place, and in likely anticipation of Australia and Canada.

The Singaporean law is broadly modelled on existing arrangements in the UK, and applies to corporate bodies but not individuals. The DPA must contain a charge or a draft charge prepared by the Public Prosecutor, as well as a statement of facts relating to the alleged offence. The Prosecutor may agree not to prosecute the corporation provided that it meets a prescribed set of conditions within a specified period.

In particular, the corporation will be required to cooperate in any investigation relating to the alleged offence, including an investigation into offences made by individual employees. The further requirements on the corporation may include: a financial penalty; compensation to victims; a donation to a charity; and the disgorgements of profits. Corporations may also be required to implement a compliance program, or enhance an existing program, subject to the supervision of an external monitor. Finally, they may be required to pay any reasonable costs of the Public Prosecutor in relation to the offense.

All DPAs will be subject to the issuing of a High Court declaration that the agreement is in the interests of justice and that its terms are “fair reasonable and proportionate.” The court proceedings will be held in camera.

In normal circumstances the Public Prosecutor will give public notice of the DPA and any reasons given by the High Court for its decision. However, the court may postpone the giving of public notice if this is necessary to avoid prejudicing an ongoing investigation or legal proceedings. Further, the court may withhold publication of any court document if it is satisfied that this is “expedient in the interests of justice, public safety, public security or propriety, or for other sufficient reason.”

Unlike in the UK, the Singaporean government does not intend to publish a DPA Code of Practice for prosecutors. In the parliamentary hearing on the new law on March 19, the Senior Justice Minister of State for Law Indranee Rajah explained that Singapore has “a slightly different approach from that of the UK” and did not wish any such guidelines “to become a tool for criminals to refer to in manipulating the criminal justice system to escape punishment.”

Singapore’s introduction of DPAs comes in the wake of Singapore’s first major foreign corruption case which involved Keppel Offshore & Marine Ltd and its U.S. subsidiary. In December 2017 Keppel agreed to pay a total penalty of more than $422 million to resolve corruption charges relating to bribes allegedly paid in Brazil. The terms of the penalty were set out in a DPA with the U.S. Department of Justice which laid down that Keppel should pay $211 million in criminal penalties in Brazil, and $105 million each to the United States and Singapore.

Commenting on the Keppel case in parliament on January 8, Ms Raja observed that Singapore, the United States and Brazil had each “acted under its own domestic laws but in coordination with the other two jurisdictions.” She said that the eventual “global resolution” achieved more than Singapore would have been able to do on its own because the maximum penalty under Singapore’s own Prevention of Corruption Act was only SGD100,000 ($75,000) per charge. Another advantage of the resolution was the fact the U.S. DPA required Keppel to introduce an enhanced compliance program.

At that time, Singapore had no DPA framework. Now it does. And there is no statutory limit on the financial penalties.

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John Bray, pictured above, is a Director at the Singapore office of Control Risks, the specialist global risk consultancy.

Article originally appeared on The FCPA Blog (https://www.fcpablog.com/).
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