Seeking An Understanding As To When The Public Prosecutor Will Push For A Deferred Prosecution Agreement As Compared To Imposing A Conditional Warning On Corporate Offenders

In 2018, a framework for the entry into Deferred Prosecution Agreements (“DPAs”) between corporate offenders and the Public Prosecutor (“PP”) was introduced. The framework contemplates the corporate offenders not being prosecuted for certain offences in return for complying with a series of conditions which may include payment of a financial penalty, cooperation with the ongoing investigations and implementing remediation measures. Under the framework, a DPA may only be entered into if a Court is satisfied that the DPA is in the interest of justice and the terms of the DPA are fair, reasonable and proportionate.

At the same time, the PP had always retained an unfettered constitutional power to institute, conduct or discontinue any proceedings for any offence. Pursuant to this power, the PP may impose a conditional warning in lieu of prosecution on a corporate offender. This does not involve any court process.

To date, there has been no DPAs entered into between the PP and a corporate offender. On the other hand, there continues to be cases where the PP issued a conditional warning to corporate offenders.

For example, in Oct 2020, it was reported that the Goldman Sachs Singapore was issued with a 36-month conditional warning in lieu of prosecution relation to the 1MDB investigations. Under the terms leading to the issuance of the conditional warning, Goldman Sachs was to pay US$122 million to the Singapore Government, disgorge the amount of US$61 million that was paid as fees for its services in relation to the 1MDB case, cooperate with the CAD in its investigations pertaining to 1MDB and comply with the Deferred Prosecution Agreement entered with US Justice Department.

The question arises as to what are circumstances under which the PP would consider entering into a formal DPA as opposed to issuing a conditional warning. I sought an explanation from the Minister of Law. My question and the Minister’s answer is set out below.

From the Minister’s answer and based on the example I provided, it seems there is an overlap of circumstances in which either option may be used although DPA is seen to be more suitable “for more complex arrangements”. I look forward to seeing the framework being utilized in the near future to achieve the legislative objectives considered by Parliament.

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Mr Murali Pillai asked the Minister for Law (a) to date, how many deferred prosecution agreements (DPAs) with corporations have been entered into; and (b) what are the considerations for the Public Prosecutor to issue conditional warnings to corporations in lieu of prosecution as opposed to entering into DPAs in respect of offences which are covered under the Sixth Schedule of the Criminal Procedure Code.

Mr K Shanmugam: To date, no deferred prosecution agreements (DPAs) have been entered into, since their introduction in 2018.

The second part of the Member’s question touches on the exercise of prosecutorial discretion by the Public Prosecutor (PP). Whether the PP issues a conditional warning, enters into a DPA, or takes some other approach, will depend on the PP’s assessment of which option best serves the public interest, based on the specific facts of each case.

A conditional warning may be more suitable in cases where the entity had sufficiently addressed the wrongdoing, made restitution or substantial reparations, and had cooperated with law enforcement authorities.

On the other hand, a DPA may be more suitable for more complex arrangements, because these are clearly provided for under the statutory framework. For example, the legislation provides that a DPA may require the entity to implement a compliance programme or enhance an existing compliance programme, and to appoint persons to supervise and monitor its internal controls and implementation of the compliance programme.

It is not possible to exhaustively describe the considerations, as each case will be assessed on its own facts.

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Murali Pillai

Member of Parliament, Bukit Batok SMC, Advisor to Bukit Batok SMC GROs.