PARLIAMENTARY QUESTIONS REGARDING THE INVOLVEMENT OF SIX FORMER EMPLOYEES OF KEPPEL OFFSHORE & MARINE LTD IN A FOREIGN BRIBERY CASE

The decision of the Public Prosecutor in issuing warnings to 6 former employees of Keppel Offshore Marine after the conclusion of investigations into their involvement in a foreign bribery case because of a lack of evidence attracted much public debate. I filed 3 Parliamentary Questions. I wanted to know why the facts that KOM admitted as part of a plea negotiation with US authorities as well as admissions made by a former KOM employee were not viewed as sufficient evidence against the employees. I also wanted to know whether anyone else or any other entity was investigated. Finally, I wanted to know what was the CPIB’s policy in dealing with foreign bribery cases under the Prevention of Corruption Act. Minister Indranee Rajah answered these questions as well as others filed by my parliamentary colleagues. My PQs and the relevant excerpts of Minister Indranee’s responses may be accessed below.

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Mr Murali Pillai asked the Prime Minister regarding CPIB’s decision not to prosecute six former employees of Keppel Offshore and Marine Limited (KOM) due to evidentiary difficulties (a) whether the statement of facts which KOM agreed to as part of a plea agreement with the United States Department of Justice and the admissions made in the United States proceedings by KOM’s former legal counsel who is based in Singapore were considered; and (b) if so, why were these considered as insufficient in overcoming the said difficulties.

Mr Murali Pillai asked the Prime Minister regarding CPIB’s investigation of six former employees of Keppel Offshore and Marine Limited (KOM) for the bribery of Petroleo Brasileiro SA (Petrobas) officials (a) whether KOM’s parent company then, any officer of the parent company at the material time or any other entity or person was investigated for facilitating the bribery of Petrobas officials under the Prevention of Corruption Act 1960; (b) if so, what are the findings from the investigations; and © what is the conclusion from these investigations.

Mr Murali Pillai asked the Prime Minister what is CPIB’s policy in determining the circumstances in which it will investigate foreign bribery cases involving Singapore citizens as provided for in Section 37 of the Prevention of Corruption Act 1960.

Minister Indranee Rajah

Mr Speaker, the questions arise from the Public Prosecutor’s, or PP’s, decision to issue stern warnings to six former senior management staff from Keppel Offshore & Marine Limited, or KOM, some of whom used to work at KOM’s wholly-owned US subsidiary at relevant times.

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First, the reasons for issuing the stern warning rather than the prosecution, the sufficiency of DPA and SOF. Decisions on charging are made by the Public Prosecutor. In deciding whether to charge, PP has to consider whether he has the necessary evidence to prove that those individuals were involved in certain conduct and possessed a certain mental state, to establish the offences. In this case, as CPIB explained in its media release, there are evidentiary difficulties in doing so.

Simply put — there is a lack of sufficient evidence, either documentary, or through witnesses, which would establish any criminal charge beyond a reasonable doubt against a specific individual.

The Attorney-General’s Chambers (AGC) has made a number of mutual legal assistance requests over five years. To date, the findings from these requests are insufficient for prosecution, as I will elaborate later.

Given this reality, I would like to know if any Member thinks that, nevertheless, even without sufficient evidence, the PP should have proceeded to bring charges against individuals, who deny the allegations against them. If so, please let me know and the basis on which you say so.

Does the fact that KOM had entered into DPA make a difference in this matter? And would DPA be enough to, at least, commence prosecution against the specific individuals in question? The answer is no.

The DPA and related documents were entered into between KOM, the US Department of Justice and the US Attorney’s Office. KOM USA, a wholly-owned subsidiary of KOM, also entered into a plea bargain agreement with the US authorities. No individuals were parties to these documents. While the documents make reference to the actions of certain individuals, I have been advised that those references, on their own, are insufficient to establish any offences beyond reasonable doubt without witnesses testifying in Singapore about the context surrounding those actions and the intention behind them.

In short, the agencies do not have sufficient evidence that would show, beyond reasonable doubt, that any of the six individuals were guilty of an offence.

CPIB conducted an in-depth investigation within Singapore, within the scope of its legal powers. However, as I said earlier, the difficulty with this case is that several potentially key witnesses are not in Singapore and CPIB has not been able to secure their cooperation or agreement to testify in Singapore.

With the initial assistance of the Brazilian authorities, CPIB made two fact-finding trips to Brazil in May and August 2019.

AGC and CPIB sent three mutual legal assistance, or MLA, requests to Brazil to secure evidence that was needed. AGC and CPIB also sent an MLA request to another relevant foreign authority to interview other potential material witnesses. The contents and outcome of these MLA requests are confidential, but I can inform the House that they have either not yielded evidence that could be used to secure a conviction before our Courts, or the responses have not been helpful in advancing the case.

There is one foreign witness who gave evidence in other proceedings, which could have been relevant in establishing the offences in Singapore. However, that foreign witness is not willing to voluntarily give evidence in Singapore. Neither AGC nor CPIB can compel him to do so.

Some Members may ask whether any prosecution could be advanced arising out of the fact that a particular individual had entered into a plea bargain in another jurisdiction, in relation to his involvement in the KOM bribery. When this individual was investigated by CPIB on his return to Singapore, he denied knowing that commissions paid to the agent in Brazil were paid out as bribes. He did not, during CPIB’s investigations, implicate himself or any others in conspiring to pay bribes. Even if PP applies to a Singapore Court to admit the plea agreement, the agreement did not identify any specific individuals and was made in the context of a plea bargain and will be given limited weight without further supporting evidence and in the face of potentially conflicting oral testimony.

CPIB has conducted as thorough an investigation as it could with the information and powers that it possessed. However, given the cross-border nature of this case and absence of key witnesses, CPIB’s investigations could not overcome the evidential difficulties for the purposes of prosecution in a Singapore Court. As such stern warnings were issued. If, subsequently, new and compelling facts come to light, it remains open for the PP to re-evaluate the decision in the light of the evolving legal and factual matrix.

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Mr Murali Pillai …asked whether other entities or persons were involved.

As a matter of policy, CPIB does not disclose the names of individuals unless they are charged in court. This policy is not unique to the CPIB; law enforcement agencies in the US, UK and New Zealand have a similar approach. The principle underlying this policy is to avoid prejudicing that individual’s right to due process and also, avoid any presumption of guilt in the absence of any formal findings.

If Members feel that hereafter this practice should be changed and that law enforcement agencies should name all individuals who were investigated, even if in the end no charges are brought, then please say so. That would be a major change of policy. But please note, if Members want to change, then it cannot be only for this case. It must be for all future cases.

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Mr Murali Pillai asked in what circumstances CPIB will investigate foreign bribery cases involving Singapore Citizens or companies under section 37 of the PCA. CPIB will investigate all cases whether they happened locally or overseas, as long as the alleged offences fall under the ambit of the PCA and the information is credible and can be pursued. CPIB will investigate and submit its findings and recommendations to the PP, who will then decide if there is sufficient evidence to prosecute.

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Mr Speaker, Singapore’s success arises in no small part because of its policy in upholding the rule of law and adopting a zero tolerance policy to corruption. Both are necessary factors and our zero-tolerance policy must be upheld in a manner that complies with the rule of law. The PP has acknowledged this and this is exactly what the PP has done on the facts — to uphold the rule of law.

Mr Murali Pillai (Bukit Batok): Mr Speaker, Sir, two supplementary questions.

But first, a point of clarification. The hon Minister referred to my PQ and said I asked what was the policy of CPIB, in relation to dealing with foreign bribery, vis-a-vis citizens of Singapore and companies. I just want to clarify that my PQ was only in relation to citizens of Singapore — and that is because section 37 of PCA excludes companies.

My first supplementary question is whether it may be an opportune time to review section 37 to include legal persons, such as companies, to give better bite to the rationale behind section 37 — dealing with foreign bribery.

The second supplementary question concerns the office of the Attorney-General. Here, it is clear that the Attorney-General, in his discretion, made the decision not to proceed with prosecution. Given that he occupies a high constitutional office, the importance of trust between the Attorney-General’s Office and the people of Singapore cannot be overstated. For the Judiciary, they can explain their decisions through judgments. I wonder whether structurally, whether anything can be done, to allow the Attorney-General to explain his decisions in certain cases, such that the trust between the people and the Attorney-General is always maintained.

Ms Indranee Rajah: I thank Mr Murali for his questions.

With respect to review of the PCA, our general assessment is that the PCA does have sufficient powers. But if there is anything that can be usefully reviewed, anything that we feel can be enhanced or improved, we are always open to suggestions.

On the second, on the Office of the Attorney-General, it is an office which carries a heavy responsibility. In discharging that responsibility, the Attorney-General has to be quite careful what he says does not say in public, particularly, with respect to decisions because you do not know whether further down along the line, a certain further action may have to be taken. So, what I have said earlier is that, in this case, they have put out as much as they thought would be appropriate to do so. But you really do not want a system where, every single case, the investigations are discussed in detail and where it then becomes an exercise of the public determining guilt or innocence, in the absence of proper due process.