CHANG PENG HONG CLARENCE v PUBLIC PROSECUTOR
7 cases cited
Catchwords
Practice Areas
Counsel (9)
Attorney-General's Chambers (Criminal Justice Division) Firm Drew & Napier LLC Firm David Menon Counsel Respondent Gary Leonard Low Counsel Applicant Jiang Ke-Yue Counsel Respondent Jonathan Tan Counsel Respondent Siraj Omar Counsel Applicant Tan Wee Kio, Terence Counsel Applicant Tong Yi Keat, Zachary Counsel Applicant
Case Significance
Chang Peng Hong Clarence v Public Prosecutor [2024] SGCA 58 is a Court of Appeal decision (Criminal Reference No 1 of 2024) delivered on 4 December 2024 by Tay Yong Kwang JCA, sitting with Steven Chong JCA and Belinda Ang Saw Ean JCA. The applicant, Mr Chang Peng Hong Clarence, referred a question of law of public interest to the court under s 397 of the Criminal Procedure Code 2010: whether, under s 13(1) of the Prevention of Corruption Act 1960 (2020 Rev Ed), a sentencing judge can impose more than one penalty when an accused has been convicted of two or more offences for the acceptance of gratification contrary to the PCA. Permission to refer the question had been granted on 23 January 2024, with two other proposed questions refused. At the hearing the court answered the Question in the affirmative and recalibrated the penalty, as set out in its grounds of decision.
Summary
SUPREME COURT OF SINGAPORE
4 December 2024
Case Summary
Chang Peng Hong Clarence v Public Prosecutor [2024] SGCA 58
CA/CRF 1/2024
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Decision of the Court of Appeal (delivered by Justice Tay Yong Kwang):
Outcome: The Court of Appeal held that a sentencing judge must impose one penalty order for each charge of accepting gratification that an accused person is convicted of. The court accordingly set aside three penalty orders with an aggregate in-default imprisonment term of about 70.96 months and imposed 19 penalty orders with an aggregate in-default imprisonment term of 120 months.
Background
1 In CA/CRF 1/2024 (“CRF 1”), the applicant, Mr Chang Peng Hong Clarence (“Mr Chang”), referred the following question of law to the Court of Appeal (the “Question”): “Under Section 13(1) of the Prevention of Corruption Act 1960 (the “PCA”), can a sentencing judge impose more than one penalty when an accused person has been convicted of two or more offences for the acceptance of gratification in contravention of the PCA?”
Facts
2 Mr Chang first met Mr Koh Seng Lee (“Mr Koh”) in 1997. At the material time, Mr Chang was the Regional Marine Manager Fuels of the Global Residues Unit and his team covered oil trades in the Easten Hemisphere. Mr Koh was the sole shareholder and executive director of Pacific Prime Trading Pte Ltd (“PPT”). PPT was in the business of wholesale and retail of trade of mineral fuels and lubricants. PPT was BP’s trading counterparty between 2001 and 2015.
3 Between 31 July 2005 and 26 July 2010, over 19 transactions, Mr Koh transferred monies to Mr Chang. Mr Koh also transferred monies to Mindchamps City Square. Mindchamps was incorporated in September 2009 with Mr Koh and Mr Chang’s wife as directors and equal shareholders. Mr Koh was also paid by Mindchamps between November 2014 and February 2015. As a consequence of these transactions, Mr Chang faced 20 charges under ss 5(a) and 6(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (the “PCA”).
4 Mr Chang was initially convicted on all 20 charges in the District Court. He was sentenced to 54 months’ imprisonment. The District Judge also imposed one penalty order totalling $6,220,095 with an in-default imprisonment term of 28 months. On appeal to the General Division of the High Court (“GDHC”), Mr Chang was acquitted on one s 6(a) charge. The Judge also allowed the Prosecution’s appeal against sentence and increased Mr Chang’s aggregate sentence to 80 months’ imprisonment. The single penalty order imposed in the District Court was substituted by three penalty orders with a cumulative in-default imprisonment term of about 70.96 months.
5 Mr Chang initially filed CA/CM 20/2023, which an application for permission to refer three questions of law of purported public interest to the Court of Appeal. The court refused permission summarily for two of the questions and granted permission to only refer the Question to the Court of Appeal. Mr Chang filed a subsequent application to amend one of the two questions for which permission was refused. The court disallowed this application.
Decision
6 The legislative purpose of s 13(1) of the PCA is to prevent corrupt recipients from retaining their ill-gotten gains: at [50].
7 Adopting Mr Chang’s interpretation of s 13 of the PCA would mean that there would only be one global penalty order with a maximum in-default imprisonment term of 30 months, whatever the total amount of gratification received by the offender. This may create a perverse effect of incentivising an offender who received a substantial amount of gratification to opt to serve the in-default imprisonment term rather than disgorge the value of gratification. Such an interpretation would not accord with the Parliamentary intent in enacting s 13 of the PCA: at [54].
8 The Court of Appeal disagreed with Mr Chang’s reliance on other statutory provisions that use broadly similar language, ie, s 5 of the Probation of Offenders Act 1951 (2020 Rev Ed) (the “POA”) and ss 305(1) and 359(3) of the Criminal Procedure Code 2010 (2020 Rev Ed) (the “CPC”): at [55].
9 Section 5 of the POA and s 305(1) of the CPC provide for alternative sentences. On the other hand, s 13(1) of the PCA imposes an additional sentence in the form of a penalty order, not with a view to punish but for the purpose of disgorging illicit gains: at [57].
10 The amount of compensation that the court may order under s 359(3) of the CPC does not correspond necessarily to the amount of loss or inconvenience resulting to an accused person from frivolous or vexatious prosecution. The one-time payment of compensation for wrongful prosecution, no matter the charges involved, serves more as a vindication and a mitigation of the loss occasions. However, the function of s 13(1) of the PCA is disgorgement of illicit gains and provision of disincentives for failure to disgorge: at [58].
11 Section 13(2) of the PCA does not lend support to the interpretation of s 13(1) as permitting only one global penalty order for multiple charges. It is accepted that the singular in a statutory provision generally includes the plural unless the context indicates otherwise. Based on the purpose of s 13 of the PCA, it was clear that s 13(2) does not indicate that s 13(1) allows only one penalty order to be made even if there are more than charge: at [59].
12 The interpretation adopted by the Judge – wherein a penalty order corresponds to the occasion of conviction but the court is allowed to make more than one penalty order – was not consonant with the plain language of s 13(1). It does not show the nexus between the amount of gratification involved and the quantum in the penalty order: at [49(c)] and [60].
13 The Court of Appeal answered the Question in the affirmative as follows: “Yes, the sentencing judge can and must impose more than one penalty when an accused person has been convicted of two or more offences for the acceptance of gratification in contravention of the PCA. The judge must impose one penalty for each charge on which the accused person was convicted”: at [61].
14 The Court of Appeal considered 120 months to be the appropriate cumulative in-default imprisonment term for the 19 charges. The Judge’s aggregate in-default imprisonment term of about 70.96 months was set aside accordingly: at [72].
15 Mr Chang’s case did not satisfy the factors for prospective overruling to apply. It could not be said that adopting the Prosecution’s interpretation would have been an unforeseeable and radical change of a deeply entrenched legal principle that would cause serious or demonstrable injustice. The Court of Appeal’s findings merely changed the aggregate in-default imprisonment term, which only applies to the extent that Mr Chang fails to pay the penalty. It was undisputed that Mr Chang had the means to pay the aggregate amount of the penalty orders: at [75]–[76].
16 The Court of Appeal observed that the enhanced maximum punishment provision in s 124(8) cannot apply to s 13(1) of the PCA and does not entitle the court to make a penalty order for twice the amount of gratification received by the offender. A penalty order in an amalgamated charge is not meant to perform the function of a fine and therefore the amount in a penalty order cannot be double that of the gratification accepted: at [78].
Framework for calibrating in-default imprisonment terms
17 The Court of Appeal set out the following framework for calibrating in-default imprisonment terms: at [65].
a. First, as a starting point, the court calculates the period of in-default imprisonment for non-payment of the amount of gratification in each charge by using the daily value of $1,000 for each day of in-default imprisonment.
b. Second, the court ensures that the individual in-default imprisonment terms comply with the statutory limitation imposed by s 319(1)(d) of the CPC for each charge (ie, 30 months’ imprisonment).
c. Third, the court ensures that the aggregate of the in-default imprisonment terms complies with the statutory limitation on the overall imprisonment term at one trial set out in s 319(1)(e), read with ss 303 and 306 of the CPC (ie, 20 years’ imprisonment for the District Court). Here, the court has to include the terms of imprisonment already imposed as punishment for the offences.
d. Fourth, if there are TIC charges involving the receipt of gratification, the court adds the amounts in one or more TIC charges to the amounts in one or more of the charges that the offender was convicted on pursuant to s 13(2) of the PCA. In doing so, the court should add the amounts in the TIC charges to those charges in which the in-default imprisonment terms do not breach the statutory limit of 30 months as stated in (b) above. This enables the court to impose an in-default imprisonment term for the amounts in the TIC charges.
e. Finally, utilising the totality principle and bearing in mind that in-default imprisonment terms run consecutively, the court considers whether the aggregate of the in-default imprisonment terms will be sufficient to disincentivise the offender from non-payment of the total penalty. Here, the court may refine the in-default imprisonment terms for the individual charges and may consider whether the offender has the financial means to pay the penalty.
18 If part payments are made for the penalty orders, the payments should be applied to the charges in the order that they stand on record. This means that the first payment goes towards the penalty order for the first charge until it is satisfied and the balance is then applied to the penalty order for the second charge and so on: at [66].
This summary is provided to assist in the understanding of the Court’s grounds of decision. It is not intended to be a substitute for the reasons of the Court. All numbers in bold font and square brackets refer to the corresponding paragraph numbers in the Court’s grounds of decision.
Can a sentencing judge impose more than one penalty for multiple corruption offences under the Prevention of Corruption Act?
In Chang Peng Hong Clarence v Public Prosecutor [2024] SGCA 58, the Court of Appeal answered in the affirmative, holding that under s 13(1) of the Prevention of Corruption Act 1960 a sentencing judge can impose more than one penalty where an accused is convicted of two or more gratification-acceptance offences.
What did the Court of Appeal decide in Chang Peng Hong Clarence v Public Prosecutor [2024] SGCA 58?
Delivered on 4 December 2024 by Tay Yong Kwang JCA (with Steven Chong JCA and Belinda Ang Saw Ean JCA), the court answered the referred question of law affirmatively, confirming multiple penalties may be imposed under s 13(1) of the Prevention of Corruption Act 1960 for multiple corruption convictions.
Statutes Cited
Probation of Offenders Act
s 5
Cases Cited (7)
SG (1)
[2023] SGHC 225
SLR (6)
[2013] 4 SLR 193 [2014] 4 SLR 661 [2016] 1 SLR 334 [2018] 2 SLR 557 [2021] 5 SLR 860 [2022] 1 SLR 1033
Referenced in
Statutes interpreted in this judgment
Sentencing outcomes for this offence
Judgment
Read the full judgment on the official Singapore Courts portal.
Read on eLitigationSource: eLitigation ([2024] SGCA 58)