CNA Explains: Why did the prosecution amend the charges brought against Iswaran?

SINGAPORE: Former Transport Minister S Iswaran pleaded guilty to a set of amended charges on Tuesday (Sept 24), the first day of what was previously expected to be a long trial lasting many months.

The 62-year-old pleaded guilty to five charges, after saying for months he would be contesting the case to clear his name.

In a statement after court proceedings had ended for the day, the Attorney General’s Chambers (AGC) said that after considering all the facts and evidence, it agreed to amend the Prevention of Corruption Act (PCA) charges originally laid against Iswaran.

It did so after considering the litigation risks involved in proving them beyond a reasonable doubt at trial, “given that there are two primary parties to the transactions, and both would have an interest in denying corruption in the transactions”.

AGC also considered whether the amendment would lead to a fair and just outcome that is in line with the public interest.  

Of the original charges, two were under the PCA, before the prosecution replaced them with charges under Section 165 of the Penal Code — which forbids all public servants from obtaining any valuable thing from someone involved with them in an official capacity.

Iswaran pleaded guilty to two other charges also under this Section; as well as one charge of obstruction of justice. He also admitted to another 30 charges under Section 165 of the Penal Code, which will be taken into consideration for sentencing.

What were his original charges?

The former transport minister initially faced two charges in January under Section 6(a) read with Section 7 of the Prevention of Corruption Act (PCA), in addition to 24 charges under Section 165 of the Penal Code and one of obstructing the course of justice. 

The PCA is Singapore’s primary anti-corruption legislation, which is complemented by other laws that deal with related forms of misconduct – including the Penal Code.

The first two original charges under the Act had stated that Iswaran "corruptly" obtained these gifts from property tycoon Ong Beng Seng, and did so in exchange for advancing the latter’s business interests between Singapore Grand Prix and the Singapore Tourism Board (STB). 

Mr Ong was the majority shareholder of Singapore GP at the time.

According to the two charges, he allegedly obtained gratification in the form of Singapore GP tickets worth S$145,434 from Mr Ong.

He was further accused of taking a flight on Mr Ong's private plane from Singapore to Doha worth S$10,410.40. 

He also allegedly received one night's stay in the Four Seasons Doha, worth S$4,737.63, and a business class flight from Doha to Singapore worth S$5,700, in December 2022. Both were through Mr Ong's company, Singapore GP.

These were supposedly to advance Mr Ong’s business interests in the agreement as well as a proposal for a contract with STB.

What were the amended charges?

At the start of what was meant to be Iswaran’s trial at 10am on Tuesday, Deputy Attorney-General Tai Wei Shyong said the prosecution would amend the charges and replace the two corruption charges with two charges under Section 165 of the Penal Code.

In the first amended charge under Section 165, Iswaran was charged with obtaining from Mr Ong, "for no consideration", 10 Green Room tickets (worth S$48,150), eight Twenty3 tickets (worth S$56,068) and 32 general admission tickets (worth S$41,216) for the 2022 Singapore F1 Grand Prix in September 2022.

In the second amended charge under Section 165, Iswaran was charged with obtaining from Mr Ong, again "for no consideration", a private jet flight to Qatar (worth about S$10,410), a night's stay in Four Seasons Doha (worth about S$4,737), and a business class flight from Doha to Singapore (worth about S$5,700) in December 2022.

The amended charges also state that Iswaran knew that Mr Ong, through Singapore GP, was concerned with the performance of the facilitation agreement between Singapore GP and the Singapore Tourism Board (STB) for the Singapore F1 Grand Prix 2022 to 2028, and this was connected with Iswaran's official functions as minister and chairman of the F1 Steering Committee.

What's the difference?

In 2022, Law and Home Affairs Minister K Shanmugam said the government would review the possibility of shifting offences listed under Section 161 to 165 of the Penal Code, to under the PCA instead.

In an answer to a Parliamentary Question, Mr Shanmugam also said that compared with offences in the PCA, Sections 161 to 165 are more targeted in scope toward tackling the various forms of bribery of, and the taking of bribes by, public servants.

As such, "there is utility in retaining these Penal Code offences, which, together with the PCA and other related laws, provide a comprehensive set of legislative levers for corruption control", he said.

Why did the prosecution ask for this?

The prosecution has “unfettered discretion” to amend or proceed with whatever charges it deems fit, and they do this guided by what public interest or public good requires, said Mr Cory Wong, director at Invictus Law Corporation. 

The prosecution would also have to consider any issues with evidence and the judicious use of state resources in pursuing any prosecution, he added. 

“It may well have been that there were certain changes to the state of the evidence or the witnesses, or that the latest re-evaluation by the prosecution of the resources to be expended had now fallen in favour of revising the plead guilty offer,” said Mr Wong. 

How did it lead to a guilty plea?

The amended charges gave the prosecution a greater chance of securing a conviction, which opened the door to Iswaran’s decision to plead guilty, lawyers said.

The changes made pleading guilty “palatable”, noting that Iswaran’s current convictions are far less serious than the previous corruption charges, said Mr Adrian Wee, managing partner at Lighthouse Law. 

It is “quite clear” that there was a plea bargain arrangement, or an arrangement where the charges would be reduced if Iswaran chose to plead guilty, he claimed. 

This refers to an agreement between the prosecution and the defence that if the accused person pleads guilty instead of claiming trial, “some compromise or middle ground” can be struck, said Mr Wong. 

For example, this could mean the prosecution only proceeds with a fraction of the charges instead of all of them, or with charges of reduced severity, he added. 

“Parties may also agree to a common sentencing position such as a fine instead of jail, but the final sentence is ultimately still decided by the courts.” 

Iswaran’s lawyers would have advised him on the possible outcomes – the sentencing outcome if he claimed trial and lost would likely have been much more significant than if he pleaded guilty to the amended charges, lawyers said. 

In agreeing to plead guilty, Iswaran also made a voluntary disgorgement of S$380,305.95 (US$294,845) to the state a day before the trial. This refers to giving up illegally obtained gains and differs from restitution.

Pleading guilty is generally a mitigating factor because it demonstrates remorse and saves State resources, said Mr Wong. 

For example, according to the recently implemented guidelines on reducing sentences for guilty pleas, the highest possible “discount” is up to 30 per cent for the earliest possible guilty plea, he added. 

An accused person has to look at the best case scenario and the worst case scenario, said partner at PDLegal LLC Mato Kotwani. 

If the prosecution comes up with a plea offer to proceed on reduced charges, the sentencing outcome is likely to improve, he added. 

“If you know that your most likely outcome is imprisonment of five years, for example, and then based on the new plea offer, you know that this is reduced by 50 or 70 per cent, you will need to make that assessment, whether it makes sense to take that gamble and go to trial,” said Mr Kotwani. 

“If you lose, then the sentence that you get will probably be a lot more severe than if you take the offer.” 

What sentence could Iswaran face?

Under the new charges, Iswaran faces a maximum jail term of two years for obtaining a valuable thing as a public servant under Section 165 of the Penal Code. He can also be fined for the offences.

He also faces a maximum jail term of seven years for obstructing justice under Section 204A of the Penal Code.

If he was convicted under the previous charges of corruptly obtaining gratification under the Prevention of Corruption Act, he could have been jailed for up to seven years, fined up to S$100,000, or both, in addition to the charges under Section 165 and Section 204A of the penal code. 

His initial charge was an “aggravated corruption” one, which has been used in previous cases from Singapore’s highest courts, said Mr Kotwani. 

Looking at the sentencing bands, which were likely to be followed, the outcome “even at the lowest end of the spectrum” would have been a fine or up to one year in prison, he added. 

On the other hand, Section 165 of the Penal Code is “quite unused”, and is a “more open playing field” for lawyers to make arguments on the appropriate sentence, said Mr Kotwani. 

Iswaran's lead lawyer Mr Singh argued that no more than eight weeks' jail should be imposed, while Deputy Attorney-General Tai Wei Shyong sought six to seven months' jail. Iswaran is expected to be sentenced on Oct 3.