White-Collar Crime 2024 Comparisons

The Penal Code 1871 (the “Penal Code”) sets out most of the punishable offences in Singapore. These offences are classified into categories, including but not limited to:

• offences relating to unlawful assembly;
• offences affecting the human body; and
• offences against property, etc.

White-collar offences covered under the Penal Code include criminal misappropriation of property, criminal breach of trust, cheating, etc.

Other white-collar offences are set out in:

• the Prevention of Corruption Act 1960 (PCA);
• the Companies Act 1967 (CA);
• the Computer Misuse Act 1993 (CMA);
• the Securities and Futures Act 2001 (SFA); and
• the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992 (the “CDSA”).

Burden and Standard of Proof

Generally, the prosecution bears the burden of proving both the actus reus (ie, the physical element) and the mens rea (ie, the mental element, such as the intention to commit the act) of each offence beyond reasonable doubt before an accused person may be convicted of the offence. An exception to this principle is the case of strict liability offences (eg, littering), where an offender may be convicted after performing a physical act regardless of their state of mind at the time of the offence. This is because Section 26H of the Penal Code expressly states that strict liability offences have no corresponding fault element.

Attempting to Commit an Offence

A person who intends to commit an offence may be convicted once they take a substantial step towards committing that offence. This is the case even when the offence is not eventually committed. Pursuant to Section 511(2) of the Penal Code, an act is a substantial step towards committing an offence if it is strongly corroborative of an intention to commit the offence.

In the absence of any other written law, a person who is convicted of attempting to commit an offence will generally receive the same punishment as is prescribed for that offence.

The presumption of innocence takes centre stage in a criminal matter. This automatic presumption means that the accused person is presumed innocent until they are proven guilty.

In order to secure a criminal conviction, the prosecution bears the burden of proving that the actus reus (ie, the physical element) and mens rea (ie, the mental element) of the offence have been satisfied beyond reasonable doubt.

However, in the context of civil penalty enforcement proceedings, the prosecution is only required to prove, on a balance of probabilities, that the accused committed an offence under the SFA. The court may then make an order against the person for the payment of the civil penalty.

Besides the legal principle of the presumption of innocence, there are operating presumptions contained within certain white-collar offences, such as:

• Section 8 of the PCA: see 3.2 Bribery, Influence Peddling and Related Offences; and
• Section 218 of the SFA: see 3.4 Insider Dealing, Market Abuse and Criminal Banking Law.

Unlike in civil disputes, where there is usually a limitation period for when a claim may be brought, limitation periods are not applicable to criminal offences under Singapore law.

Therefore, the public prosecutor, who is the Attorney-General, has full discretion on when charges may be brought against an accused person.

Extraterritorial Reach

Unless expressly stated, acts committed outside the jurisdiction of Singapore are presumed to not constitute an offence, even if such an act would have amounted to an offence under that statute had it been committed within the jurisdiction. This has been expressly stated in the Court of Appeal (ie, the highest court in Singapore) judgment of Yong Vui Kong v Public Prosecutor [2012] 2 SLR 872.

Exceptions

However, there are exceptions to this general rule.

• A Singaporean citizen who commits an act outside Singapore punishable under the PCA may be dealt with in respect of that offence as if it had been committed within Singapore (Section 37(1) of the PCA).
• Under Section 399(1) of the SFA, a person who performs an act partly in and partly outside Singapore may be dealt with as if the act were carried out wholly in Singapore, which would constitute an offence, and will be guilty of the offence.
• Section 4B(1) of the Penal Code, read together with the Schedule of the Penal Code, provides for when an offence is deemed to have been committed in Singapore, notwithstanding that some elements of the offence occurred in Singapore while other elements of the offence occurred outside of Singapore. Section 3 of the Penal Code explicitly provides that any person liable to be tried for an offence that was committed beyond the limits of Singapore will be dealt with in the same manner as if such act had been committed in Singapore.
• The CDSA applies to any property, whether it is situated in Singapore or elsewhere (Section 4(5) of the CDSA).

Cross-Border Co-operation

To facilitate the provision and obtaining of international assistance in criminal matters, Singapore has adopted several international conventions into its domestic law, including:

• the CDSA;
• the Mutual Assistance in Criminal Matters Act 2000 (2020 Revised Edition);
• the Extradition Act 1968 (2020 Revised Edition); and
• the Terrorism (Suppression of Financing) Act 2002 (2020 Revised Edition).

These international conventions allow for the following:

• the exchange of evidence and information;
• the making of arrangements for persons to give evidence or aid in criminal investigations;
• the locating and extradition of persons within and outside of Singapore;
• the recovery, forfeiture or confiscation of property for asset recovery; and
• the execution of search and seizure requests.

In addition, the regulatory authorities in Singapore work in tandem with other foreign regulatory bodies to achieve cross-border co-operation and assistance. For example, pursuant to a request for assistance by a foreign regulatory authority, the Monetary Authority of Singapore (MAS) may transmit information in its possession (Section 172(1) of the SFA).

A fundamental tenet of company law is that a company is a separate legal entity from its members or shareholders. Therefore, the liabilities of the company do not ordinarily attach to its shareholders or officers.

Civil Liability

In an extension of this principle, where a company has committed a tort, its directors are not automatically liable for the tort. An example of when a company’s directors may be liable as joint tortfeasors is where they have “procured or directed” the wrong to be done (Court of Appeal judgment in TV Media Pte Ltd v De Cruz Andrea Heidi [2004] 3 SLR(R) 543).

Criminal Liability

It is entirely possible for a legal entity to be subject to criminal liability.

Threshold to successfully prosecute a legal entity

In the seminal case of Tom-Reck Security Services Pte Ltd v Public Prosecutor [2001] 1 SLR(R) 327, the High Court held that the actions of an employee or agent of the company may be attributed to the company where that person is considered to be the “living embodiment of the company”, or if that person’s actions were performed as part of a delegated function of management. This is not an easy threshold to meet.

Thus, where this “living embodiment” test is fulfilled, it would be a stronger indication of a company’s involvement in the criminal activities conducted (High Court judgment in Prime Shipping Corp v Public Prosecutor [2021] 4 SLR 795).

Should the legal entity or individual be prosecuted?

The decision to prosecute either a legal entity or a natural person, or both, is a question of prosecutorial discretion. Article 35(8) of the Singapore Constitution states that the Attorney General shall have the power, exercisable at their discretion, to institute, conduct or discontinue any proceedings for any offence. This discretion is exercised based on the sufficiency of evidence and consideration of what is in the public interest.

An instance where a natural person was prosecuted instead of a legal entity was in Abdul Ghani bin Tahir v Public Prosecutor [2017] 4 SLR 1153, in which a company director was convicted and sentenced to imprisonment where the use of the company’s bank accounts in connection with money-laundering offences was attributed to his neglect.

The High Court in Abdul Ghani cited the English case of Huckerby v Elliot [1970] 1 All ER 189, where it was decided that a director has consented to the commission of an offence by his company when he is “well aware of what is going on and agrees to it”, whereas a director has connived at the offence committed by the company when he is “equally well aware of what is going on but his agreement is tacit”. In other words, a director who connives at an offence is “not actively encouraging what happens but letting it continue and saying nothing about it”.

Mergers and acquisitions

In the context of a merger or acquisition, the starting point is that each company is a separate legal entity and is thus not criminally responsible for the conduct of another. However, depending on the factual matrix of the case, a successor entity may be held liable for offences committed by the target entity.

For example, a person who fraudulently transfers property with the intention of preventing the property from being taken in satisfaction of a fine is guilty of an offence under Section 206 of the Penal Code. In this scenario, both the individuals and companies involved in the fraudulent transaction (including the acquiring company) could be held criminally liable.

Sentencing in the Criminal Courts

In the criminal courts, the appropriate penalties are generally decided at the discretion of the judge, based on the gravity of the offence, the harm caused and any mitigating and aggravating factors, subject to any minimum and/or maximum sentences laid down by statute.

To promote consistency in sentencing, the courts sometimes set out sentencing frameworks and guidelines. For example, prior to October 2022, the sentencing framework for private sector corruption offences under Sections 6(a) and 6(b) of the PCA was set out in the High Court judgment of Takaaki Masui v Public Prosecutor and another appeal [2021] 4 SLR 160. However, on appeal, the Court of Appeal of Singapore declined to endorse the sentencing framework, having observed that the framework was “complex” and “likely to be of little assistance to sentencing courts”.

Thereafter, in October 2022, a three-judge coram led by the Honourable Chief Justice Sundaresh Menon sitting in the General Division of the Singapore High Court set out a revised two-stage, five-step sentencing framework for sentencing such private-sector corruption offences (Goh Ngak Eng v Public Prosecutor [2023] 4 SLR 1385).

Under the revised framework, the court would consider the following:

• stage 1 – the severity of the offence by having regard to all the offence-specific factors and arriving at an indicative sentence; and
• stage 2 – the offender-specific factors to derive a sentence for each individual charge.

In developing this revised framework, the High Court cautioned that sentencing frameworks are only intended as a guide and are not precise mathematical formulae for the court to use to arrive at an exact sentence.

Guidelines for Scams-Related Offences

In August 2024, the Sentencing Advisory Panel, comprising members from the judiciary, ministries, the Singapore Police Force, the Attorney-General’s Chambers and the Bar, published the Guidelines for Scams-Related Offences (the “Guidelines”), to provide clarity in sentencing several new offences under the CDSA and CMA that had been introduced in 2023.

Among other things, these new offences make it criminal for persons in Singapore to relinquish control of their bank accounts and disclose their Singpass credentials to others. The Guidelines set out the recommended starting sentences and offender- and offence-specific factors to consider and the appropriate increase to the starting sentence that each factor may justify. The Guidelines seek to strongly deter perpetrators, setting out starting sentences ranging from six to 18 months’ imprisonment and providing that fines, probation and community sentences are generally inappropriate.

At the time of publication, the new guidelines have been considered in one case, Public Prosecutor v Cheah Bernice [2024] SGDC 220. In that case, the 21-year-old offender, who disclosed her Singpass credentials to an acquaintance, was sentenced to eight weeks’ imprisonment. The prosecution had not initially objected to the calling of a probation suitability report, but thereafter changed its position to object, after the publication of the Guidelines.

Other Sentencing/Non-prosecution Options

In 2018, Singapore introduced deferred prosecution agreements for non-individuals; see 2.6 Deferred Prosecution.

If the prosecution is of the opinion that certain offences have been committed but nevertheless decides not to prosecute the offender, it may issue stern warnings and/or conditional warnings in lieu of prosecution.

The prosecution and defence may also negotiate and attempt to reach an agreement as to the appropriate sentence to be imposed on an accused person. There are no firm guidelines or rules, but such an agreement is ultimately subject to the purview of the court, which decides on the appropriate sentence. Accused persons who plead guilty are generally also entitled to some reduction in sentence (see 4.3 Plea Agreements, Co-operation, Self-Disclosure and Leniency).

Section 359 of the Criminal Procedure Code (CPC) allows the court to order the offender to compensate the victim where it is appropriate to do so. In deciding whether to exercise this discretion, the court may take the following non-exhaustive factors into consideration:

• whether the order would be oppressive to the offender – as such an order does not form part of the sentence imposed, it should realistically allow the offender to pay the compensation within a reasonable time; and
• whether the victim is able to seek recourse from the offender via a civil suit – compensation orders are particularly suitable for victims for whom commencing a civil suit would be impractical (eg, where the victims are impecunious).

For corruption offences, victims may recover debt owed from the person who gave the gratification or their agent by commencing a civil suit (Section 14 of the PCA).

Representative Proceedings

Where numerous persons have a common interest in any proceedings, such persons may sue or be sued as a group, with one or more of them representing the group. However, such proceedings are only applicable in civil suits and not in criminal proceedings.

The Commercial Affairs Department (CAD) of the Singapore Police Force is the principal white-collar crime investigation agency in Singapore, and investigates both commercial and financial crimes.

The other key regulatory authorities that investigate and/or prosecute corruption and corporate misconduct in Singapore include the following.

• The Attorney-General’s Chambers: deputy public prosecutors from the Financial and Technology Crime Division conduct the prosecutions and appeals of all white-collar crimes and commercial offences.
• The Corrupt Practices Investigation Bureau (CPIB) is an independent agency authorised to investigate corruption offences under the PCA. The Bureau’s mandate is to investigate any act of corruption in the public and private sectors in Singapore and, in doing so, any other offences under any written law.
• The MAS is Singapore’s central bank and the authority responsible for regulating and supervising the financial services sector. It conducts investigations and audits to ensure compliance with provisions and regulations under statutes such as the Securities and Futures Act.
• The Inland Revenue Authority of Singapore is a statutory board under the Ministry of Finance. Its scope of investigations includes suspected instances of tax evasion and/or fraud.
• Singapore Exchange Limited (“SGX”) acts as a frontline regulator of the securities and derivatives market. In 2017, the Singapore Exchange Regulation (the “SGX RegCo”) was set up as a separate entity that undertakes all frontline regulatory functions independently of the SGX.
• The Accounting and Corporate Regulatory Authority is the national regulator of business registration, financial reporting, public accountants and corporate service providers.

In Singapore, investigations are generally commenced after a police report, also known as a First Information Report, has been made. This police report may be made by the victim or a third party.

The CPC governs which procedure should be followed, depending on whether the alleged offence is an arrestable or non-arrestable offence.

In the context of white-collar investigations, the relevant authorities may collaborate during investigations to streamline the process. For example, since March 2015, the MAS and CAD have adopted a joint investigations arrangement to allow the agencies to pool their resources and expertise together. In particular, the MAS’s role as a financial regulator and the CAD’s intelligence-gathering capabilities allow potential offences to be detected and investigated swiftly.

This joint investigations arrangement was formed to cover offences such as insider trading and market manipulation, and came about following the largest market manipulation case in Singapore’s history – ie, the October 2013 penny stock crash involving three Singapore-listed companies: Asiasons Capital Ltd, Blumont Group Ltd and LionGold Corp Ltd.

Prior to March 2015, both the MAS and CAD would investigate financial offences independently, based on an initial assessment of whether the offence was likely to be a civil penalty or a criminal prosecution case. Further to the joint investigations, the decision on whether a case is subject to a civil penalty action or criminal prosecution is only made at the close of investigations.

Investigative authorities are given a wide scope of powers to facilitate conducting their investigations. Generally, the investigative powers of the police are contained within Part 4 of the CPC.

In the context of white-collar crime, additional investigative powers are contained within Part 4 of the PCA and Part 9 of the SFA.

The powers that may be exercised include the following.

• Powers to search, seize and detain any document, article or property where there is reasonable cause to believe that there is any document containing any evidence of an offence under the PCA, or any article or property relating to the commission of such an offence (Section 22 of the PCA). This includes the power to access, inspect and check a computer in certain circumstances (Section 39 of the CPC).
• Powers to issue a written order to compel anyone who appears to be acquainted with any of the facts and circumstances of the case to attend before a police officer (Section 21 of the CPC).
• Powers to record statements from accused persons or witnesses during investigations (Sections 22 and 23 of the CPC).

Generally, there is no mandatory requirement for entities to conduct internal investigations into any suspected wrongdoing.

However, the MAS requires:

• financial institutions to report any misconduct of their representatives to the MAS, pursuant to Notice SFA 04-N11; and
• financial advisers to lodge a report to the MAS upon the discovery of misconduct committed by their representatives, pursuant to Notice FAA-N14.

Internal investigations are generally conducted by interviewing relevant employees, management and directors, with the aim of collecting and reviewing documentation and traces of the proceeds of fraud.

Where the investigation reveals that the representative has committed said misconduct, they may be liable to one or more of the following types of disciplinary action:

• suspension from conducting any regulated activity;
• restitution of appropriate monies;
• a fine;
• a formal warning;
• demotion; or
• termination of employment.

As discussed above in 1.3 Statute of Limitations, the Attorney-General has absolute prosecutorial discretion in deciding whether to bring a charge against an individual and/or company.

Article 35(8) of the Singapore Constitution states that the Attorney-General shall have power, exercisable at their discretion, to institute, conduct or discontinue any proceedings for any offence. This discretion is exercised based on the sufficiency of evidence and consideration of what is in the public interest.

The provisions governing deferred prosecution agreements (DPAs) are set out in Part 7A of the CPC.

A DPA is an agreement entered into between the public prosecutor and a corporate body that has been charged with, or whom the public prosecutor is considering prosecuting for, an alleged offence (ie, an offence that is specified in the Sixth Schedule of the CPC), under which:

• the body corporate agrees to comply with the requirements imposed on the person by that agreement; and
• the public prosecutor agrees that, upon the approval of the High Court, Section 149C of the CPC (which relates to the effect of the DPA) and Section 149I (which relates to the variation of the terms of the DPA) apply in relation to the prosecution of the corporate body for the alleged offence.

Examples of offences that qualify for a DPA include corruption, money laundering and the receipt of stolen property. Notably, the offence of cheating does not qualify for a DPA.

This formal framework allows corporate offenders, and not individuals, to enter into an agreement with an investigating or regulatory authority in exchange for a deferment or avoidance of prosecution. This agreement is on the condition that the corporate offender complies with specific terms in relation to its conduct and/or monitoring arrangements. Such conditions and/or specific terms could include the payment of a financial penalty, providing compensation to the victim, the disgorgement of profits, co-operation in investigations, etc.

When Is a DPA Appropriate?

There are no guidelines on when a DPA is appropriate. Much like the bringing of a charge, the decision on whether to enter into a DPA is an exercise of prosecutorial discretion.

In a February 2022 parliamentary speech, the Minister for Law, Mr K Shanmugam, provided insight into when a DPA may be entered into. In particular, a DPA “may be more suitable for more complex arrangements, because these are clearly provided for under the statutory framework”. On the other hand, a conditional warning may be more suitable in cases “where the entity had sufficiently addressed the wrongdoing, made restitution or substantial reparations, and had co-operated with law enforcement authorities”.

In March 2024, it was announced that the Attorney-General’s Chambers had entered a DPA with Singapore-listed Seatrium (formerly known as Sembcorp Marine), in connection with alleged corruption offences in Brazil. Under the terms of the DPA, Seatrium was to pay a total fine of USD110 million.

A wide variety of criminal company law and corporate fraud offences are recognised in Singapore, including:

• corruption-related offences such as bribery, influence peddling and related offences;
• banking and finance-related offences such as insider dealing, market abuse and criminal banking;
• tax-related offences such as tax fraud and tax evasion;
• failure to keep or disclose accurate financial records;
• computer-related offences such as cybercrimes, computer fraud and breach of confidentiality by disclosing company secrets;
• concealment;
• money laundering; and
• general property-related offences such as criminal breach of trust, cheating, forgery, and criminal misappropriation.

General Corruption-Related Offences

The most commonly committed offences in the PCA fall within Sections 5 and 6.

Section 5 of the PCA makes it an offence for someone, by themselves or in conjunction with any other person:

• to corruptly solicit or receive, or agree to receive for themselves or for any other person; or
• to corruptly give, promise or offer to any person, whether for the benefit of that person or of another person, any gratification as an inducement to or reward for, or otherwise on account of:
1. any person doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed; or
2. any member, officer or servant of a public body doing or forbearing to do anything in respect of any matter or transaction whatsoever, actual or proposed, in which such public body is concerned.

Section 6 of the PCA makes it an offence if:

• an agent corruptly accepts or obtains – or agrees to accept or tries to accept – money or other benefits from another person as a reward or incentive for doing or not doing something related to their principal’s affairs or business;
• someone corruptly gives or agrees to give or offers money or benefits to an agent to persuade them to do or not do something related to their principal’s affairs or business; or
• someone intentionally provides an agent – or if an agent knowingly uses – a receipt, account or any other document that the principal is concerned with and that contains false or misleading information in a significant way, and they are aware that it is meant to deceive the principal.

The punishment for contravening Sections 5 and 6 is a fine not exceeding SGD100,000, and/or imprisonment for a term not exceeding five years.

These sections are broad enough to cover instances of bribery between private parties. See also the sentencing framework for Section 6 offences set out in 1.6 Sentencing and Penalties.

Public Sector Corruption

Section 7 of the PCA provides that the maximum punishment for offences under Sections 5 and 6 of the PCA that relate to a contract/proposal for a contract with the government, a government department or any public body, and a subcontract to execute any work comprised in such a contract, is enhanced to a fine not exceeding SGD100,000 and/or imprisonment for a term not exceeding seven years.

Once proven that gratification was paid or given to, or received by, an employee of the government, a government department or a public body, by or from someone who has or seeks to have any dealing with that government department/public body, a rebuttable presumption of corruption arises pursuant to Section 8 of the PCA.

In addition:

• Section 10 of the PCA criminalises the corrupt procurement of the withdrawal of tenders;
• Section 11 criminalises the bribery of a member of parliament; and
• Section 12 criminalises the offering of gratification to a member of a public body.

Each has a maximum punishment of a fine not exceeding SGD100,000 and/or imprisonment for a term not exceeding seven years.

The bribery of foreign public officials is also prosecutable. Section 37(1) of the PCA extends the PCA such that it applies to offences committed by Singapore citizens outside of Singapore; see 1.4 Extraterritorial Reach and Cross-Border Co-operation. However, as the recent case relating to Keppel Offshore & Marine demonstrates, there may also be evidential difficulties in prosecuting such offences.

There is no legislation explicitly or specifically mandating the implementation of a compliance programme. However, there are a few voluntary management standards and frameworks that organisations are encouraged to use.

ISO 37001/SS ISO 37001

The Singapore Standard (SS) ISO 37001 on anti-bribery management systems is a voluntary standard published by Enterprise Singapore. It is designed to help companies establish, implement, maintain and improve their anti-bribery compliance programmes.

To meet the ISO 37001/SS ISO 37001 standards, organisations need to be certified by accredited certification bodies.

PACT

The Corrupt Practices Investigation Bureau has also published A Practical Anti-Corruption Guide for Businesses (“PACT”). PACT is intended to be a simple, easy-to-use four-step guide for organisations looking for practical ways to prevent corruption.

The failure to implement a compliance programme is not a specific criminal offence. However, it may be considered a relevant factor in determining liability for corruption-related offences. If an organisation demonstrates a lack of adequate anti-corruption measures, it may be viewed unfavourably during investigations or court proceedings.

The main banking and finance-related offences, such as insider trading and market abuse, are generally found within the SFA.

Insider Trading

The sections in the SFA relating to insider trading may be found in Division 3. The main offence-creating provisions are in Sections 218 and 219.

In both sections, if a person (“A”) knows or ought reasonably to know that certain information is not generally available and would be expected to have a material effect on the price or value of specific securities, securities-based derivatives contracts or collective investment scheme (CIS) units, it will be an offence for A to:

• subscribe to, purchase or sell, or enter into an agreement to subscribe to, purchase or sell such securities;
• incite, induce or encourage someone else to subscribe to, purchase or sell, or enter into an agreement to subscribe to, purchase or sell such securities; or
• communicate the information to another person (“B”), directly or indirectly, if A knows or reasonably ought to know that B is likely to subscribe to, purchase or sell the securities, or incite, induce or encourage a third person to do so.

Generally available information

For information to be considered “generally available”, it must fulfil one or more of the following criteria:

• the information can be readily observed;
• the information has been publicly made known in a manner that would or is likely to bring it to the attention of persons who commonly invest in the relevant securities, and disseminated for a reasonable period; or
• it contains deductions, conclusions or inferences from such information.

Material effect on price or value

Information that would be expected to have a material effect on price or value refers to information that would, or would be likely to, influence a person’s decision to subscribe for, buy or sell those securities, securities-based derivatives contracts, or CIS units. It is such information that is considered significant enough to impact an investor’s judgement regarding the investment’s potential risks and rewards.

Section 218 (connected persons)

Section 218 concerns a situation where A, being a person connected to a corporation (“C”), possesses information concerning C that is not generally available and that, if generally available, would likely have a material effect on the price or value of the securities, securities-based derivatives contracts or CIS units of C.

A will be considered a connected person to C if A:

• is an officer of C or a related corporation;
• is a substantial shareholder (generally holding at least 5%) in C or a related corporation; or
• occupies a position that may reasonably be expected to give A access to information of a kind to which insider trading provisions apply.

If A is a person connected to C, as long as it is proved that at the material time A possessed information concerning C that was not generally available, a rebuttable presumption forms that A knew at the material time that the information was not generally available, and that if it were so, it might have a material effect on the price or value of the securities or securities-based derivatives contracts of C.

Section 219 (other persons)

Section 219 applies to persons who are not connected persons within the meaning of Section 218.

Penalty

As set out in Section 221 of the SFA, the maximum penalty for insider trading under Sections 218 and 219 is a fine not exceeding SGD250,000 and/or a term of imprisonment not exceeding seven years.

Other Forms of Market Abuse

Other forms of market abuse are also criminalised under Part 12 of the SFA. Prominent examples include:

• Section 197, which criminalises false trading and market-rigging transactions;
• Section 198, which criminalises market manipulation in relation to securities; and
• Section 199, which criminalises the reckless or knowing making of false or misleading statements that are likely to induce other persons to deal with securities.

Tax fraud is a serious offence. Depending on the context of the fraud , it may constitute offences under, among others, Part 20 of the Income Tax Act 1947 (ITA) and Part 9 of the Goods and Services Tax Act 1993.

Fraudulent Income Tax Evasion

Tax evasion is defined in Section 96 of the ITA. To be regarded as an offence, it must be proved that a person did the following, wilfully and with intent to evade tax:

• intentionally omitted from a tax return any income that should have been included;
• made a false statement or entry in any return or in any notice; and
• gave a false answer, either verbally or in writing, to any question or request for information asked or made under the ITA.

Section 96A applies where fraud is involved in the tax evasion, such as where there was:

• the intentional preparation or maintenance of false books of account or records, or the authorising of such activities; or
• the use of any fraud, art or contrivance, or the authorising of the use of such.

In this situation, a tax fraudster is liable to pay a penalty of four times the amount undercharged or obtained, and is liable to a fine not exceeding SGD50,000 and/or imprisonment not exceeding five years. Repeat offenders face mandatory minimum imprisonment terms.

Prevention of Tax Evasion

There is no legislation explicitly mandating the prevention of tax evasion. There are a few voluntary frameworks prepared by the Inland Revenue Authority of Singapore, which organisations are encouraged to use. These include:

• the Tax Governance Framework, a voluntary compliance initiative companies may participate in to demonstrate good tax governance and tax risk management, for both corporate income tax, and goods and services tax (GST);
• the Assisted Compliance Assurance Programme (ACAP), a voluntary compliance initiative for businesses to establish robust GST controls – businesses with ACAP status may enjoy benefits such as limited exemptions from GST audits and faster GST refunds; and
• the Assisted Self-Help Kit, a self-assessment compliance package that helps businesses review their GST submissions and discover past errors to qualify them for the Inland Revenue Authority of Singapore’s Voluntary Disclosure Programme.

The main offences related to financial record-keeping are governed by the CA.

Accounting Records

Section 199 of the CA requires companies to keep proper accounting and other records, to ensure their financial transactions are properly recorded, as this will allow the companies to sufficiently explain their transactions and financial position and enable true and fair financial statements, as well as any documents to be attached to those records.

Section 199 also imposes certain requirements related to access to these accounting records. They also must be retained for not less than five years from the end of the relevant financial year.

Failure to comply attracts a maximum punishment of a fine not exceeding SGD5,000 or imprisonment for a term not exceeding 12 months, and a default penalty for the company and every company officer who is in default.

Financial Statements and Consolidated Financial Statements

Section 201 of the CA provides an extensive list of requirements with which a company’s financial statements must comply. For example, Section 201(2) provides that a company’s financial statements must comply with the Accounting Standards made or formulated by the Accounting Standards Committee.

Breaches of Section 201 are prosecuted under Section 204 of the CA, with directors and companies both liable. Depending on the exact contravention, the maximum punishment for a breach attracts a maximum fine of between SGD10,000 and SGD250,000, and a maximum term of imprisonment of between two and three years.

Where there has been a breach with the intent to defraud creditors of the company or creditors of any other person or for a fraudulent purpose, the punishments are increased.

The main criminal and administrative offences relating to cartels and criminal competition law are outlined in the Competition Act 2004 (“COMA”), and include the following.

• Agreements, decisions or concerted practices that prevent, restrict or distort competition within Singapore (Section 34): any agreement between undertakings, decisions by associations of undertakings, or concerted practices that have the intent or effect of preventing, restricting or distorting competition within Singapore are prohibited and void, unless exempted or authorised under the Act.
• Abuse of dominant position (Section 47): any conduct by one or more undertakings that amounts to the abuse of a dominant position in any market in Singapore is prohibited. Conduct that may constitute abuse includes:
1. predatory behaviour towards competitors;
2. limiting production or markets to the prejudice of consumers;
3. applying dissimilar conditions to equivalent transactions; or
4. making contracts subject to supplementary obligations unrelated to the contract’s subject matter.
• Mergers (Section 54): mergers that have resulted or may be expected to result in a substantial lessening of competition within any market in Singapore for goods or services are prohibited.

The sanctions that can be imposed include criminal penalties decided by a court and administrative penalties decided by the Competition and Consumer Commission of Singapore (CCCS).

The CCCS has the authority to, among other things:

• issue relevant directions to remedy, mitigate or eliminate the adverse effects of the infringement – these directions may include requiring the modification or termination of agreements, modifications to or cessation of anti-competitive conduct, or the dissolution or modification of mergers; and
• impose financial penalties not exceeding 10% of the turnover of the business of the undertaking in Singapore for each year of infringement, subject to a maximum of three years.

Under the COMA, a court generally has the authority to impose a fine not exceeding SGD10,000 and/or imprisonment for a term not exceeding 12 months.

The key provisions relating to consumer protection laws may be found in the Consumer Protection (Fair Trading) Act 2003 (CPFTA), which sets out certain rights consumers have against unfair consumer practices, and consumer rights in respect of non-conforming goods.

The CPFTA is not inherently criminal. However, the CPFTA grants courts the power to, among other things, grant an injunction restraining suppliers from engaging in unfair practices upon application by the CCCS. The failure of a supplier to comply with such an injunction amounts to contempt of court, which may result in a maximum fine of up to SGD100,000 and/or a maximum imprisonment term of up to three years, pursuant to Section 12 of the Administration of Justice (Protection) Act 2016.       

Computer Misuse Act

The main offences in relation to cybercrimes and breach of company secrets may be found in the Computer Misuse Act 1993 (CMA), including the following:

• Unauthorised access of computer material – Section 3 makes it an offence to knowingly cause a computer to perform any function to secure unauthorised access to any program or data. Sanctions include a fine not exceeding SGD5,000 and/or imprisonment for a term not exceeding two years.
• Unauthorised modification of computer material – Section 5 makes it an offence to knowingly perform an act that causes an unauthorised modification of the contents of any computer, including temporary modifications. Sanctions include a fine not exceeding SGD10,000 and/or imprisonment for a term not exceeding three years.

There is no need for the offending act to be directed at any specific program, data or computer. Higher penalties apply for subsequent convictions or if any damage is caused.

Recent amendments to the CMA (and the CDSA) also set out the following new offences:

• Sections 8A and 8B of the CMA make it an offence to disclose one’s password, access code and other information relating to Singpass, and to obtain, retain, supply, offer to supply, transmit or make available any other person’s credentials.
• Sections 51 and 55A of the CDSA have been amended to make it an offence to hand over control of an existing bank account to another person, which is used to receive and transfer funds which are the benefits of crime.

Guidelines have also been set out for the sentencing of these offences. See 1.6 Sentencing and Penalties.

Penal Code

The Penal Code is applicable where the creation of false electronic records is concerned. Section 463 makes it an offence to make a false electronic record with intent to cause damage or injury to the public or any person, to support a claim or title, to cause a person to part with property, to enter into a contract (express or implied), or with intent to commit or enable fraud. Sanctions include imprisonment for a term of up to four years and/or a fine.

The United Nations Act 2001

Section 5 of the United Nations Act 2001 gives the Singapore government power to make regulations to give effect to decisions of the United Nations Security Council. This includes the United Nations (Anti-terrorism Measures) Regulations, which prohibit, among other things, the sale, supply, export, shipment or transfer of arms and related materials to terrorists. The punishments for a breach of these regulations are:

• for an individual – a fine not exceeding SGD500,000 and/or imprisonment for a term not exceeding ten years; and
• for non-individuals (eg, a corporation) – a fine not exceeding SGD1 million.

The Strategic Goods (Control) Act 2002

Part 2 of the Strategic Goods (Control) Act 2002 criminalises the transfer and brokering of certain strategic goods, such as military goods or dual-use goods (goods capable of being used for both a military and non-military purpose). Sanctions for a first-time offender include a fine, being the greater of SGD100,000 or three times the value of the strategic goods, and/or imprisonment for a term not exceeding two years. An increased punishment applies for repeat offenders.

The Customs Act

Part 15 of the Customs Act criminalises a wide variety of customs-related offences, including:

• the making and signing of untrue, incorrect or incomplete declarations, certificates and documents;
• the falsification of customs-related documents;
• the failure to make customs declarations and produce trade documents; and
• the fraudulent evasion of customs or excise duty.

The concealment of benefits from criminal conduct is prosecuted under Section 54 of the CDSA. It is an offence for someone (“A”) to conceal or disguise any property, including its nature, source, location, disposition, movement or ownership, that directly or indirectly represents A’s benefits from criminal conduct.

A will also be liable if they conceal or disguise the property of another person (“B”), despite knowing or having reasonable grounds to believe that said property represents B’s benefits from criminal conduct.

For concealment, the sanctions are as follows:

• for individuals – a fine not exceeding SGD500,000 and/or imprisonment for a term not exceeding ten years; and
• for non-individuals – a maximum fine that is the higher of SGD1 million or twice the value of the property involved.

The CDSA applies to any serious offence or foreign serious offence, as listed in the Second Schedule of the CDSA. Given that the fact of a serious offence leads to the applicability of the CDSA, a person can be held liable for both the predicate offence and the offence of concealment. The predicate offence is separate from the concealment offence. An individual can therefore be charged and convicted for both if the elements of each offence can be proved.

A person who conspires with, instigates, or intentionally aids another to commit a corporate offence (an “abettor”) can  be held liable along with the main offender. Generally, Chapter 5 of the Penal Code covers the law on abetment, although there is specific legislation in certain instances (see, for example, Section 12 of the CMA).

The specific sanctions incurred depend on the nature of the corporate offence committed and the applicable laws governing that offence. Generally, an abettor will be liable for the punishment for the offence they abetted. However, there are some unique situations where this is not the case. Examples include cases where:

• an abettor abets one act, but the primary offender does another; and
• the primary offender acts with a different intention to the abettor.

In Singapore, the main offences related to money laundering are found in Part 6 of the CDSA (see 3.11 Concealment). Money laundering occurs when a person engages in certain activities involving the proceeds of an illegal activity or property, intending to conceal the true origin of the proceeds or property, or to avoid prosecution for that offence.

There are positive obligations on financial institutions to prevent money laundering. The MAS maintains a collection of notices regarding AML and CFT regulations, which are given force of law by Sections 15 and 16 read with Section 192 of the Financial Services and Markets Act 2022.

The failure of a financial institution to comply with the requirements set out in those notices may result in a fine not exceeding SGD1 million for each offence. For a continuing offence, the institution will be subject to a further fine of SGD100,000 for every day or part of the day after conviction that the offence continues.

The competent enforcement authorities for the prevention and enforcement of money-laundering offences include the CAD and the CPIB. For more information, see 2.1 White-Collar Enforcement Authorities.

The defences for white-collar offences are typically provided for in the same statutes that provide for the relevant offences.

Money-Laundering and CDSA Offences

When it comes to the offence of assisting another to retain benefits from criminal conduct under Section 51 of the CDSA (see 3.13 Money Laundering), it is, among other things, a defence for an accused person to prove that they did not know and had no reasonable grounds to believe that an arrangement was:

• related to any person’s proceeds derived from criminal conduct; or
• facilitating retention or control by or on behalf of another person, or that by that arrangement benefits were being retained, controlled, used to secure funds or used to acquire property.

Insider Trading

As for insider trading (see 3.4 Insider Dealing, Market Abuse and Criminal Banking Law), Section 231 of the CDSA provides parity of information defences for where a person is charged with insider trading. Generally, it is a defence if the information came into that person’s possession solely as a result of it being made known in a manner that would, or would be likely to, bring it to the attention of persons who commonly invest in securities of such kind that the price or value might be affected by the information, or if the other party knew or ought to have known of the information.

Effective Compliance Programme

The existence of an effective compliance programme may be a specific defence in some situations. For example, if an employee gains knowledge or belief that an arrangement entered into in the course of their employment relates to criminal conduct, Section 51(4)(d) of the CDSA specifically makes it a defence if that employee discloses their knowledge, in accordance with the procedure established by their employer for making such disclosures.

In the context of a civil penalty for a corporation that fails to prevent or detect certain contraventions of the SFA, Section 236C(7) expressly states that a court is to consider whether that corporation had adequate policies and procedures for preventing and detecting market misconduct, and whether it has consistently enforced compliance.

More generally, the implementation of an effective compliance programme may, in certain situations, suggest a lack of mens rea on the part of an accused person. It may also be considered as a mitigating factor by the court when determining the appropriate penalty or sentence for an offence.

General Exceptions

The Penal Code provides for certain general exceptions, including a de minimis exception in the form of Section 95, which states that nothing is an offence if it causes, is intended to cause, or is known to be likely to cause harm that is so slight that no person of ordinary sense and temper would complain of such harm.

The breadth of the Penal Code means that this applies to white-collar offences in Singapore, although it appears less relevant in the context of corruption. In 2019, a forklift operator was famously fined and imprisoned for accepting bribes of SGD1.

There are also numerous specific exceptions set out in the same statutes that provide for the relevant offences.

Insider Trading

For example, Sections 222 to 230 of the SFA provide for the following exceptions to insider trading:

• Sections 226 and 227 provide that a corporation or partners of a partnership or a limited liability partnership will not be liable for insider trading if suitable “Chinese walls” were erected within the organisation, such that the information was not communicated to the person accused of insider trading, and no advice was given to that person; and
• other exceptions include those for underwriters and for information communicated pursuant to legal requirements and an individual’s own intentions and activities.

Limited Exemptions

Certain regulatory frameworks may provide for limited exemptions from specific statutory regulations. For example, the Securities and Futures (Exemption from Requirement to Hold Capital Markets Services Licence) Regulations provide exemptions from Section 82(1) of the SFA, for persons who meet the conditions set out in Regulation 3.

The COMA also provides for block exemptions to Section 34, which would otherwise prohibit agreements, decisions or concerted practices that prevent, restrict or distort competition within Singapore, subject to the agreement meeting the criteria set out in Section 41.

Plea Agreement

A plea bargain refers to an agreement between the accused person and the prosecution. The plea-bargaining process in Singapore is informal and is not governed by legislation.

Essentially, after charges are brought against an accused person, the defence counsel may engage in discussions with the prosecution with the aim of seeking a favourable plea offer for the accused. The form of discussion may include but is not limited to:

• written representations, which are made on a without-prejudice basis; or
• requesting a Criminal Case Management System Conference (CCMS), which is an informal meeting between the defence and prosecution where each party may seek to better understand the other party’s case.

Generally, in the plead-guilty context, the defence counsel may request that the prosecution exercises its prosecutorial discretion to achieve one or more of the following:

• in a scenario where the accused person is faced with multiple charges, that the prosecution proceeds on a certain number of charges and takes the other charges into consideration for the purpose of sentencing; and/or
• a reduction in sentence if the accused were to plead guilty in a timely manner.

In August 2023, the Sentencing Advisory Panel of Singapore published guidelines on the reduction in sentences for guilty pleas. Under the guidelines, if an accused person were to plead guilty between the first mention and 12 weeks after the prosecution informs the court that the case is ready for the plea to be taken, the court may consider reducing the accused person’s sentence by a maximum of 30%. The percentage by which the court may reduce the sentence drops to 5% if the accused person decides to plead guilty on or after the first day of trial.

Co-operation and Self-Disclosure

Self-disclosure and co-operation with investigators and authorities are typically mitigating factors. Other common mitigating factors that the Singapore courts take into consideration include an early plea of guilt and, where applicable, full restitution for the damage caused.

In certain contexts, self-disclosure may amount to a full defence. Under Section 51(4)(c) of the CDSA, if a person intended to disclose their knowledge, belief or any other matter relating to the arrangement to an authorised officer but failed to do so, it is a defence if they provide a reasonable excuse for their failure. This implies that if a person voluntarily discloses the relevant information to the authorities before any illegal act is committed or as soon as it becomes reasonable to do so, it would be considered a full defence.

Leniency

One leniency measure in the context of the COMA is the CCCS Guidelines on Lenient Treatment for Undertakings Coming Forward with Information on Cartel Activity 2016, which provides, among other things, total immunity for the first party to come forward before an investigation commences, and up to 100% reduction in financial penalties for the first party to come forward after it commences.

There is no general whistle-blowing legislation in Singapore. In the context of corruption-related offences, Section 36 of the PCA provides safeguards for whistle-blowers reporting corruption-related offences. Among other things, it prohibits the disclosure of the name, address or any information that might lead to the discovery of an informer in any civil or criminal proceeding.

Although encouraged, there are no requirements for organisations to implement internal procedures to protect whistle-blowers, unless that organisation is listed on the SGX. In that event, the SGX RegCo requires issuers to state in their annual reports that they have a whistle-blowing policy in place.