PUBLIC PROSECUTOR v PEK LIAN GUAN

1 This case concerns corruption charges brought against two executives of Tiong Seng Contractors (Pte) Ltd (“TSC”) for allegedly providing corrupt loans to an employee of Land Transport Authority (“LTA”) who was supervising their construction project. However, the primary focus of this judgment is not on their guilt or innocence, but rather, on whether the district judge below (“DJ”) who acquitted them failed to discharge his judicial duty by improperly copying the defendants' submissions into his judgment without proper consideration of the Prosecution’s arguments.

2 The respondents in this case are Mr Pek Lian Guan (“Pek”) and Mr Pay Teow Heng (“Pay”). At the material time, Pay was a director of TSC, whilst Pek was the managing director of TSC and chief executive officer and director of its parent company, Tiong Seng Holdings Ltd.

3 TSC was engaged by the LTA as the contractor for the construction of the Great World Station and tunnels (“T220 Project”) on the Thomson-East Coast Line of the Mass Rapid Transit system. Mr Foo Yung Thye Henry (“Foo”) was the LTA employee responsible for supervising the execution of the T220 Project in varying capacities.

4 When Foo encountered personal financial difficulties, he approached Pay on two occasions seeking help to arrange loans. Pay initially did not agree but took Foo’s requests to Pek, who then facilitated the approval of two staff loans from TSC to Pay. This enabled Pay to use the money to extend two loans to Foo in June 2017 and March 2018 (collectively referred to as the “Loans”).

5 In October 2018, the Corrupt Practices Investigation Bureau (“CPIB”) received an anonymous complaint that Foo had been soliciting loans from contractors involved in LTA projects under his charge. Following investigations, Foo was charged with seven counts of corruptly obtaining or attempting to obtain gratification under s 6(a) of the Prevention of Corruption Act (“PCA”). He pleaded guilty and was sentenced to 66 months’ imprisonment in September 2021.

6 The Prosecution subsequently brought charges against Pek and Pay for their respective roles in arranging and providing the Loans to Foo. Pay faced two charges under s 6(b) read with s 7 of the PCA of corruptly giving gratification to Foo. Pek faced two charges under s 6(b) read with ss 7 and 29(a) of abetting Pay’s corruption by causing TSC to extend staff loans to Pay, knowing Pay would use the money to extend loans to Foo.

7 The matter was heard by the DJ in a trial which lasted over 40 days spread out across a period of more than two years. The DJ ultimately acquitted both respondents of all charges, finding that the Prosecution had failed to prove beyond reasonable doubt that the Loans were given corruptly. However, the Prosecution alleged that the DJ’s grounds of decision (“GD”) reflected such extensive copying and adoption of the respondents’ written submissions that it gives rise to a reasonable suspicion that he unthinkingly adopted their arguments without judiciously considering the Prosecution’s case and the evidence on record. In consultation with counsel for all the parties, it was decided that this should be dealt with as a preliminary issue since it would have a material bearing on the deference to be accorded on appeal to the GD. Accordingly, this judgment does not address the respondents’ guilt or innocence on the charges against them. Instead, it focuses on the anterior question of whether there are reasonable grounds for apprehending that the DJ failed to discharge his judicial duty, and if so, what consequences should follow from such a finding.

8 The principles of natural justice afford a common thread which unifies the various strands of judicial procedural failings. Situating a complaint of procedural unfairness within the framework of natural justice will often afford a more principled and doctrinally satisfactory analysis as opposed to an approach that treats specific instantiations of procedural unfairness as independent grounds of challenge that are governed by their own idiosyncratic rules and standards: at [8], [44] and [60].

9 There are three consequences of situating a given complaint in the framework of natural justice: at [45].

(a) First, depending on which rule of natural justice is alleged to have been breached, the relevant considerations and consequences may vary. This explains what might on first impression appear to be inconsistent outcomes in prior cases. Further, because a complaint that a judge manifested an appearance of bias is of a different nature to one that the judge failed to apply his or her mind to the matter, the analysis should be specifically tailored to each complaint.

(b) Second, the remedial consequences that follow may differ depending on the rule of natural justice that is implicated, the gravity and implications of the alleged breach, and its effect on the proceeding or decision. In some cases, a minimally invasive approach may be appropriate, and the matter may be remitted to the decision-maker to cure any unfairness; in others, the actual or perceived unfairness may be more pervasive, and the possibility of a retrial may have to be considered.

(c) Third, the correct inquiry in the judicial context is whether there is a reasonable suspicion that a breach of natural justice has occurred, because this gives effect to the fundamental principle that justice must not only be done, but must be seen to be done.

10 In determining the appropriate remedies to follow from a breach of natural justice in the judicial setting, the court is not constrained by the requirement in arbitration of having to establish prejudice. Instead, the guiding principle is what remedy is required to restore public confidence in the administration of justice. To this end, there are at least three broad remedial options available, with ascending levels of intrusiveness: at [129], [142] and [150(d)].

(a) First, addressing the issue through the normal appellate process. In such cases, the court might note the breach, but its primary focus will be on the substantive question of whether the outcome reached in the court below should be interfered with in the exercise of its appellate jurisdiction.

(b) Second, remitting the matters back to the court below for it to rectify the breach and reconsider the matter.

(c) Third, setting aside the defective decision (in whole or in part), and then doing one of three things:

(i) engaging in a de novo review of the (defective aspects of the) decision;

(ii) ordering a retrial; or

(iii) in a criminal context, ordering the acquittal of the accused person.

11 A fair-minded and informed observer would harbour a reasonable suspicion or apprehension that the DJ failed to judiciously consider the material before him. This reasonable suspicion arose from (a) the extent and manner of the copying of the respondents’ written submissions; and (b) the DJ’s failure to deal with significant aspects of the Prosecution’s case and the evidence before the court: at [164].

12 The GD should be set aside in full, with no weight to be accorded to it, because no part of the DJ’s analysis is untouched by a breach of natural justice. The parties agree that if the GD is tainted by a breach of natural justice, the appeals should proceed with a consideration of the merits as a fresh hearing based on the record of the proceedings below. A retrial should not be ordered because of the considerable practical difficulties this would give rise to: at [221]–[222].