White Collar Crime Comparative Guide

1 Legal and enforcement framework

1.1 Which legislative and regulatory provisions govern white collar crime in your jurisdiction?

White collar crime is governed by various laws in Singapore, such as the following:

• The Penal Code 1871 is the primary statute governing most criminal offences in Singapore, including white collar crimes such as:
• • fraud;
  • criminal breach of trust;
  • cheating;
  • market rigging;
  • falsification of accounts;
  • forgery; and
  • receipt of stolen property.
• The Prevention of Corruption Act covers corruption and bribery offences.
• The Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act 1992:
• • deals with money-laundering offences, among other things; and
  • provides for the confiscation of benefits derived from drug dealing, corruption and other serious crimes.
• The Securities and Futures Act 2001 covers offences related to securities and derivatives industry, including the offences of:
• • market rigging;
  • insider trading; and
  • false trading.
• The Income Tax Act 1947 and the Customs Act 1960 govern tax-related offences such as:
• • fraudulent tax evasion; and
  • the furnishing of false documents to the authorities.
• The Computer Misuse Act 1993 governs, among other things, offences relating to the unauthorised access or modification of computer materials.

1.2 Which bilateral and multilateral instruments of relevance to white collar crime have effect in your jurisdiction?

Singapore has adopted various international conventions into its domestic law that facilitate the provision and obtaining of international assistance in respect of white collar crime.

Mutual legal assistance: The Mutual Assistance Criminal Matters Act 2000 (MACMA) regulates Singapore's mutual legal assistance framework. MACMA makes provision for Singapore and foreign countries to provide legal assistance to one another in relation to various matters, including:

• the provision and obtaining of evidence;
• the making of arrangements for parties to give evidence or assist in criminal investigations;
• the confiscation of property; and
• the location or identification of persons.

Singapore is a party to:

• the Association of South East Asian Nations Treaty on Mutual Legal Assistance in Criminal Matters, which provides a process through which countries in the region can request and provide assistance in the collection of evidence for criminal investigations; and
• a bilateral mutual legal assistance treaty (MLAT) entered into between Singapore and France that came into force on 1 April 2023. The Singapore-France MLAT is:
• • Singapore's first MLAT since 2005; and
  • Singapore's first bilateral MLAT with a country with a civil law system.

Extradition: The Extradition Act 1986 allows for the extradition of fugitives to and from foreign states that maintain an extradition treaty with Singapore. Singapore has bilateral extradition treaties with:

• the United States;
• Hong Kong;
• Germany; and
• most recently (January 2023), Indonesia.

Singapore also has extradition arrangements with 40 Commonwealth territories, including:

• the United Kingdom;
• Australia; and
• Canada.

1.3 Which bodies are responsible for enforcing the applicable laws and regulations? What powers do they have?

The Attorney-General's Chambers (AGC) oversees both criminal and regulatory prosecutions in Singapore.

The AGC works closely with various investigative and enforcement authorities, including:

• the Singapore Police Force;
• Singapore Customs;
• the Corrupt Practices Investigations Bureau;
• the Inland Revenue Authority of Singapore;
• the Monetary Authority of Singapore;
• the Commercial Affairs Department; and
• the Singapore Exchange Limited.

These enforcement agencies have broad statutory powers to gather evidence and are empowered, among other things, to:

• carry out search and seizure processes on persons and/or premises;
• require the attendance or examination of witnesses;
• access computers and electronic devices; and
• order the production of documents or information.

(For example, see Part 4 of the Criminal Procedure Code 2010.)

1.4 What is the general approach of the authorities in enforcing the applicable laws and regulations?

The enforcement agencies generally conduct their investigations pursuant to:

• criminal complaints that are made;
• tipoffs; and/or
• whistleblower reports.

Once investigations have been completed, the enforcement agency will submit its investigative findings and recommendations to the AGC. The decision to prosecute is ultimately at the discretion of the attorney general, who is also the public prosecutor in Singapore.

2 Scope of application

2.1 Can both individuals and companies be prosecuted under the white collar crime laws? Under what circumstances are employees' actions attributable to the company?

Yes. Criminal liability can be attributed to both individuals and companies in Singapore:

• Under Section 2 of the Interpretation Act 1965, a 'person' includes "any company or association or body of persons, corporate or unincorporated".
• Under Section 11 of the Penal Code, the definition of a 'person' similarly includes any company or association or body of persons, whether incorporated or not.

An example of a case in which a prosecution was brought against a corporate body in Singapore for corruption is Public Prosecutor v Wong Chee Meng [2020] 5 SLR 807. In that case, two construction companies together with their managing director was charged with and convicted of giving bribes to the former general manager of a town council in Singapore.

The actions of an officer or agent of the company can be attributed to the company in circumstances where that person is the 'living embodiment of the company'. Alternatively, corporate liability can be attributed to the company if the employee's actions were performed as part of a delegated function of management (Prime Shipping Corp v Public Prosecutor [2021] 4 SLR 795 at [17]; see also Tom-Reck Security Services Pte Ltd v Public Prosecutor [2001] 1 SLR(R) 327 at [17] and [19]).

Similarly, Section 73 of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (CDSA) provides that the state of mind of a director, employee or agent of a body corporate can be deemed to be the state of mind of the body corporate if the conduct in question was within the actual or apparent authority of the director, employee or agent.

There are also specific laws in Singapore that impose liability on both corporate entities and their 'officers'. For example, under Part 12 of the Securities and Futures Act (SFA), a company is liable for an offence if it is established that an offence was committed:

• by an employee or an officer of the company;
• with the consent or connivance of the company; and
• for the benefit of the company.

To that end, an officer of a company is said to consent to the commission of an offence by a company when "he is well aware of what is going on and agrees to it". In a similar vein, an officer connives at an offence being committed by the body corporate if "he is equally well aware of what happens but [lets] it continue and [says] nothing about it" (see Abdul Ghani bin Tahir v PP [2017] 4 SLR 1153 at [99]).

2.2 Can foreign companies be prosecuted under the white collar crime laws?

Foreign companies can be prosecuted under Singapore's white collar crime laws. In this respect, Singapore law does not generally distinguish between a 'foreign company' and a company that is incorporated in Singapore. Specifically relating to corruption offences, Section 29 of the Prevention of Corruption Act (PCA) would expose a foreign company that abets the commission of a corruption offence to criminal liability, even if the bribes were given outside of Singapore.

However, in practice, it is rare for foreign companies to be prosecuted in Singapore. This is especially so if the foreign companies have no presence in the jurisdiction.

2.3 Can successor companies be prosecuted under the white collar crime laws?

Yes. Successor companies can be prosecuted under white collar crime laws in Singapore for the acts of previous shareholders, officers or management. This is because every company is a separate legal entity in Singapore.

2.4 Do the white collar crime laws have extraterritorial reach?

Certain white collar laws have extraterritorial reach and expressly allow the long arm of Singapore law to extend past its borders. This is the case even though Singapore law generally does not have extraterritorial effect unless this is expressly provided for (Yong Vui Kong v Public Prosecutor [2012] 2 SLR 872 at [40]-[41]).

Examples include the following:

• PCA: Under Section 37 of the PCA, a Singapore citizen who commits a PCA offence outside Singapore may be dealt with in respect of that offence as if it had been committed within Singapore.
• CDSA: Sections 4(3) and (5) of the CDSA provide that the CDSA applies to:
• • any 'foreign serious offence'; and/or
  • any property, whether situated in Singapore or elsewhere.
• Penal Code: Section 4B of the Penal Code provides that certain offences (as set out in the Schedule to the Penal Code) are deemed to have been committed in Singapore where:
• • a relevant act occurs entirely or partially in Singapore;
  • the offence involves an intention to make a gain, cause a loss or exposure to a risk of loss or cause harm to any person in body, mind, reputation, or property; and
  • the gain, loss or harm occurs in Singapore.
• Computer Misuse Act 1993: Section 13 of the Computer Misuse Act provides that the act has effect "in relation to any person whatever the person's nationality or citizenship, outside as well as within Singapore".
• SFA: Section 339 of the SFA provides that a person who does an act partly in and partly outside Singapore which, if done wholly in Singapore, would constitute an offence under the SFA will be guilty of the offence as if the act were carried out by that person wholly in Singapore.

3 Offences

3.1 What types of white collar crimes are recognised in your jurisdiction and what do they involve?

Numerous white collar crimes are recognised in Singapore. Some common examples are summarised below.

Corruption/bribery (Sections 5-7 of the Prevention of Corruption Act (PCA)): The offence of corruption involves the following elements:

• the act of giving or acceptance of gratification;
• the gratification being an inducement or reward or on account of the accused doing or forbearing to do something;
• a corrupt element in the transaction; and
• the guilty knowledge of the giver or recipient of the gratification.

Money laundering (Section 54 of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (CDSA)): Under the CDSA, it is an offence to:

• conceal or disguise any property representing the proceeds from criminal conduct;
• convert or transfer that property from Singapore; or
• acquire, possess or use that property.

Cheating (Sections 415-420A of the Penal Code): The offence of cheating involves deceiving a person in order to:

• do any act that induces that person to deliver or cause to deliver a property to anyone; or
• do or omit to do anything which that person would otherwise not have done or omitted to do that causes or likely to cause damage or harm to any person in body, mind, reputation or property.

False trading and market rigging (Section 197 of the Securities and Futures Act (SFA)): Under the SFA, it is an offence to:

• do any act with the intention of creating a false or misleading appearance of the capital market products traded on an organised market (Section 197(1));
• do any act in the knowledge that the act will create or will likely create a false or misleading appearance (Section 197(1A)); or
• buy or sell capital market products in a way that does not involve a change in beneficial ownership of the said products, or use any fictitious transaction or device for the purpose of causing and which causes the market price of any capital market product to maintain, inflate, depress or fluctuate (Sections 197(2) and (6)).

Market manipulation (Section 198 of the SFA): Market manipulation in relation to securities and securities-based derivatives criminalises:

• the act of effecting two or more transactions in securities or securities-based derivatives contracts on an organised market of a corporation that has or will likely have the effect of raising, lowering, maintaining or stabilising the price of those securities or securities-based derivatives contracts;
• with the intention to induce other persons to buy or sell those securities or securities-based derivatives contracts.

Tax evasion (Section 96 of the Income Tax Act): Tax evasion occurs where there is an intention to evade tax and/or to assist any other person to evade tax. Tax evasion can take various forms, including:

• omitting to declare income;
• making false statements or providing false answers to the Inland Revenue Authority of Singapore (IRAS); or
• failing to notify IRAS of any incorrect information.

3.2 How are predicate offences defined in your jurisdiction?

Predicated offences are specifically listed in the relevant laws. In the context of the CDSA, the Second Schedule of the CDSA expressly sets out 'serious offences' which, even if committed overseas, can be treated as though they were committed in Singapore.

White collar offences that constitute a 'serious offence' include:

• criminal breach of trust;
• cheating;
• forgery;
• unauthorised access to computer materials;
• false trading; and
• market rigging.

3.3 Do any restrictions or thresholds (eg, in terms of parties, asset type or transaction value) serve to limit the types of activities that constitute white collar crimes?

The general defences to a criminal charge encapsulated in Chapter IV of the Penal Code include a de minimis defence as provided for at Section 95, which expressly provides that:

That said, such a general defence has no applicability in respect of corruption offences under the PCA. In fact, in 2019, a forklift operator was jailed for corruption for his course of conduct in obtaining S$7 to S$10 daily in bribes from truck drivers so as not to delay the collection or return of containers from or onto their vehicles.

3.4 What are the most common offences for which company directors and officers can be held personally liable?

Commonly prosecuted offences personally applicable to company directors and officers include the following:

• providing or receiving bribes (Sections 5-7 of the PCA) (eg, Public Prosecutor v Wong Chee Meng [2020] 5 SLR 807);
• issuing false invoices, documents or quotations with the intention to mislead (Section 6(c) of the PCA) (eg, Public Prosecutor v Liong Kah Wei [2019] SGDC 182);
• fraudulent trading (Section 340 of the Companies Act) (eg, How Soo Feng v Public Prosecutor [2023] SGHC 252. In this case, the directors were charged with carrying on the business of a company for the fraudulent purpose of selling gold bars under a buyback scheme promising returns when in fact the company did not operate any substantive profit generating business. This meant that the company had no sustainable means to honour its payment and buyback obligations);
• fraudulent tax evasion (Section 96A of the Income Tax Act; Section 128D of the Customs Act) (eg, Public Prosecutor v Sim Tze Ching Andrew [2023] SGDC 44. In this case, the accused was a sole director of a company involved in the importation of motor vehicles. The accused caused the company to falsely declare the customs value and the open market value of the vehicles that the company was importing for the purpose of evading tax. The accused was convicted and sentenced to 24 weeks' imprisonment and a fine of over S$2 million);
• cheating (Sections 417-420 of the Penal Code) and/or falsification of accounts (Section 477A of the Penal Code); and
• failure to act honestly and use reasonable diligence in the discharge of duties as directors of Singapore registered companies (Section 157(1) of the Companies Act) (eg, Lim Weng Kee v Public Prosecutor [2002] 2 SLR(R) 848).

4 Compliance

4.1 Is the implementation of a compliance programme a regulatory requirement in your jurisdiction? If so, what should this cover?

The implementation of a compliance programme is a regulatory requirement for the financial industry. The Monetary Authority of Singapore (MAS) regulates financial institutions in the banking, capital markets, insurance and payment sectors. In this regard, MAS has issued regulations and guidelines pursuant to the Financial Services and Markets Act 2022 (FSMA), requiring financing institutions to put in place internal systems, controls, processes and programmes to monitor and detect money-laundering activities and/or terrorist financing.

Compliance programmes are also regulatory requirements for prescribed non-financial sectors. Examples include:

• the precious stones and precious metals industry; and
• the real estate sector.

For example, under Section 19 of the Precious Stones and Precious Metals (Prevention of Money Laundering and Terrorism Financing) Act 2019, a regulated dealer must "implement adequate programmes and measures to prevent money laundering and terrorism financing" (see also Section 16 of the FSMA).

In a similar vein, under Section 12E of the Housing Developers (Control and Licensing) Act 1965, a licensed housing developer must, "in relation to its business of carrying out or undertaking housing development in Singapore, implement adequate programmes and measures to prevent money laundering and terrorism financing".

Such internal policies, procedures and controls should provide, among other things, for:

• the appointment of a compliance officer;
• checks when hiring employees;
• customer due diligence procedures;
• enhanced customer due diligence procedures;
• procedures for the filing of suspicious transaction reports;
• staff training on anti-money laundering; and
• record keeping.

(See, for example, the Ministry of Law's Compliance Toolkit for Precious Stones and Precious Metal Dealers, updated 8 September 2022.)

4.2 Does failure to implement an adequate compliance programme constitute a regulatory and/or criminal violation in your jurisdiction?

Yes. The failure to implement adequate compliance programmes potentially constitutes a regulatory and/or criminal violation (eg, see Section 19(3) of the Precious Stones and Precious Metals (Prevention of Money Laundering and Terrorism Financing) Act; Section 12E(6) of the Housing Developers (Control and Licensing) Act; and Section 16(4) of the FSMA).

More broadly, directors of companies are required under Section 157 of the Companies Act 1967 to discharge their duties honestly and with reasonable due diligence. This includes a duty to implement compliance programmes as may be required. A director who fails to do so may be found to have breached his or her duties to the company.

4.3 What due diligence requirements apply in relation to customers, partners, suppliers etc?

The due diligence requirements will generally include:

• conducting risk assessments in respect of the counterparty (eg, adverse media searches/politically exposed person checks) of clients, business partners and relevant stakeholders;
• conducting customer due diligence and/or enhanced customer due diligence;
• determining a customer or partner's source of wealth or source of funds;
• monitoring transactions on an ongoing basis;
• keeping proper records relating to customer due diligence; and
• submitting a suspicious transaction report to the Suspicious Transaction Reporting Office in the event that there is a suspicion of money laundering or terrorism financing activities.

(See, for example, Sections 16 to 22 of the Precious Stones and Precious Metals (Prevention of Money Laundering and Terrorism Financing) Act; Sections 12A to 12E of the Housing Developers (Control and Licensing) Act; the Monetary Authority of Singapore's Guide on Effective AM/CFT Controls in Private Banking).

4.4 What books and records requirements apply in this context?

Generally, where the implementation of adequate compliance programmes is mandatory, the relevant entities must retain for a certain period records relating to, among other things:

• risk assessments conducted;
• customer due diligence (eg, customer identification document);
• screening; and
• transactions.

These records must be made available to the relevant authorities upon request. Failure to furnish such records may constitute a potential offence (eg, see Section 12C of the Housing Developers (Control and Licensing) Act; Section 18 of the Precious Stones and Precious Metals (Prevention of Money Laundering and Terrorism Financing) Act).

In this regard, Section 199 of the Companies Act 1967 also requires a company to keep proper books and records to explain its transactions and financial position for at least five years. Failure to do so may attract penal sanctions for the company and its officers.

4.5 What other compliance best practices should a company implement to mitigate the risk of white collar crime?

Companies and their management should, among other things:

• have a good understanding of risk factors affecting their business;
• stay up to date on the latest white collar trends and developments;
• implement effective internal policies, procedures and controls (IPPCs);
• ensure that their employees are well trained on how to:
• • operationalise such IPPCs; and
  • identify red flags pertaining to white collar crime; and
• periodically review the IPPCs and update them to reflect current legislation and regulations.

These compliance protocols will serve to delineate the actions of any errant employee from those of the company. They will thus serve as a good defence should any prosecutions against the company be contemplated.

4.6 Must companies report financial irregularities or actual or potential violations?

Singapore's legislative and regulatory framework is generally based on a disclosure-based regime.

Rule 703 of the Listing Manual requires companies which are listed on the Singapore Exchange to disclose any information concerning themselves, their subsidiaries or associated companies which either:

• is "necessary to avoid the establishment of a false market in [their] securities"; or
• "would be likely to materially affect the price or value of [their] securities".

Under notices issued by MAS, financial institutions are also required to self-report. For example, financial institutions must disclose to MAS misconduct committed by their representatives. In this regard, they must:

• undertake internal investigations into their representatives' conduct; and
• submit an annual declaration of 'nil return' if there have been no instances of reportable misconduct during the financial year.

Failure to comply constitutes a violation of the law (see Notice SFA -4-N11, "Reporting of Misconduct of Representatives by Holders of Capital Markets Services Licence and Exempt Financial Institutions").

With regard to money laundering, pursuant to Section 45(1) of the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (CDSA), companies must also disclose knowledge or suspicion of any property that:

• may represent the proceeds of criminal conduct; and/or
• was used or intended to be used in connection thereof.

Failure to do so is a potential offence under Section 45(3) of the CDSA.

4.7 What factors will the authorities consider in assessing the adequacy of a compliance programme?

See question 4.5.

5 Investigations

5.1 How are investigations typically commenced in your jurisdiction?

In Singapore, investigations are usually commenced in response to:

• a complaint to the relevant investigative authorities;
• self-reporting;
• whistleblowing; and
• audits conducted by the relevant authorities.

Raids and/or searches and seizures are often conducted, especially where there is a need:

• to preserve evidence; or
• for urgency in respect of the investigations.

5.2 What investigative powers do the authorities have?

The enforcement authorities have broad powers of investigation. The precise powers of each enforcement agency vary depending on:

• the agency involved; and/or
• the legislation granting them powers of investigations.

Nevertheless, the enforcement authorities in Singapore typically have the power to:

• enter premises without a warrant (eg, Section 32 of the Criminal Procedure Code 2010 (CPC); Section 22(2) of the Prevention of Corruption Act (PCA));
• conduct searches and seizures (eg, Section 24 of the CPC; Section 165 of the Securities and Futures Act (SFA); Section 22 of the PCA);
• order the production and/or inspection of documents (including electronic documents) (eg, Section 20 of the CPC; Section 163 of the SFA; Sections 18 and 21 of the PCA);
• compel the attendance of witnesses (eg, Section 21 of the CPC); and
• record statements of witnesses and/or person(s) under investigation (eg, Section 22 of the CPC; Section 27 of the PCA).

5.3 Can the authorities demand that a company under investigation produce documents? When can the authorities search the premises and seize documents of a company under investigation

Yes. Pursuant to Section 20 of the CPC, the police may issue a written order requiring a company in possession of a document to produce that document if the police considers that it is necessary or desirable for any investigation, inquiry, trial or other prescribed proceedings. There are generally similar provisions in the relevant legislation governing specific sectors (eg, see Sections 163 and 164 of the SFA).

A search warrant may be issued pursuant to Section 24 of the CPC if:

• the court has reason to believe that a company will not produce a document as ordered by the court;
• it is not known who possesses a specific document or thing; or
• the court considers that a general or specific search or inspection will serve the purposes of justice or of any investigation, inquiry, trial or prescribed proceeding.

The enforcement authorities may seize documents containing evidence:

• in respect of which an offence is suspected to have been committed;
• which is suspected to have been used or intended to be used to commit an offence; or
• which is suspected to constitute evidence of an offence (eg, see Section 35 of the CPC; Section 22 of the PCA).

5.4 Do the authorities typically cooperate with their foreign counterparts in conducting an investigation? If so, what is the process for doing so?

Yes. The enforcement authorities typically cooperate with their foreign counterparts in conducting an investigation, especially where it involves complex multi-jurisdictional and cross-border elements.

This can be done:

• formally through the Mutual Assistance Criminal Matters Act (MACMA) framework; or
• informally by way of cooperation with foreign law enforcement agencies.

Under the MACMA framework, requests for legal assistance by a foreign country can be submitted to the director general of the Attorney General's Chambers' (AGC) International Affairs Division.

One recent example of international cooperation between Singapore and its foreign counterparts is Teo Chu Ha (alia Henry Teo) v Public Prosecutor [2023] SGHC 130. In that case, gratifications in excess of S$2 million were paid to Singaporeans to secure contracts for Chinese companies to service a Singaporean company operating in China. With the assistance of its Chinese counterparts, CPIB and/or the AGC successfully obtained key pieces of evidence that were eventually relied on by the prosecution to secure convictions against the accused persons.

5.5 What rights do companies and their directors and officers have during an investigation (eg, in relation to interviews/privacy and data protection)?

Pursuant to Section 22(2) of the CPC, an interviewee who provides a statement is obliged to state what he or she knows of the facts and circumstances of the case. However, he or she is not required to say anything that might expose himself or herself to a criminal charge, penalty or forfeiture.

The interviewee's statement must be recorded in writing or in the form of an audiovisual recording (see Section 22(3) of the CPC). Any statement given by an interviewee, if in writing, must be read to the interviewee and signed by him or her. If the interviewee does not understand English, it must be interpreted for him or her in a language that he or she understands (eg, Section 22(4)(b) of the CPC).

In this respect, there is no legal right for lawyers to be present during interviews. However, under Article 9(3) of the Constitution, an arrested person has the right to consult and be defended by a lawyer of his or her choice. However, this right arises only within a reasonable time (see James Raj s/o Arokiasamay v Public Prosecutor [2014] 3 SLR 750).

There are also certain laws in Singapore that contain safeguards for the protection of informers. For instance, in respect of investigations under Section 36 of the PCA, "no witness shall be obliged or permitted to disclose the name or address of any informer, or state any matter which might lead to his discovery".

In addition, if any documents which are in evidence contain any entry in which an informer is named or described which might lead to his or her discovery, the court will cause "all such passages to be concealed from view or to be obliterated so far as is necessary to protect the informer from discovery" (Section 36 of the PCA).

Insofar as privacy and data protection laws in Singapore are concerned, the collection, use and/or disclosure of personal information and data are generally permitted where necessary for investigations or proceedings (eg, see Part 3, Paragraph 3 of the First Schedule to the Personal Data Protection Act 2012).

5.6 What rules govern attorney-client privilege in your jurisdiction and what are their implications in the context of white collar crime investigations?

Privileged communications between solicitors and their clients are generally protected from being produced and/or seized by the enforcement authorities. This covers both:

• legal advice privilege, which protects confidential communications between a legal professional and his or her client for the purpose of seeking legal advice; and
• litigation privilege, which protects information and materials created and collected for the dominant purpose of litigation.

As an exception to such protection, any communication, item or document that is made, prepared or held with the intention of furthering an illegal purpose is not covered by privilege (Section 128(2)(a) of the Evidence Act 1893).

The above notwithstanding, privileged communication may be seized by enforcement authorities in the course of their investigations. That said, the prosecution may not be permitted to utilise such privileged information.

The procedure applicable to asserting privilege over materials was illustrated in Ravi s/o Madasamy v Attorney-General [2021] 4 SLR 956 at [82]-[88], as follows:

• A dedicated team within the AGC is set up to review the seized material.
• The party asserting privilege must identify to the AGC the material that is privileged. The privilege team may:
• • accept a claim of privilege at face value; or
  • review the identified materials to determine whether they agree that the materials are privileged.
• If the privilege team does not accept that the material is indeed privileged, the AGC may turn over the materials to the police for investigation or to the prosecutorial team.
• A party may decide whether to insist on its claim of legal privilege and/or commence legal proceedings to prohibit the AGC from turning over the materials to the police for their investigation or to the prosecutorial team.

5.7 What factors will the authorities consider in assessing whether to bring charges?

The factors that are usually considered by the authorities in deciding whether to bring charges include:

• the nature and severity of the offence;
• the level of culpability of the offender;
• the harm caused by the offence;
• the strength and sufficiency of the evidence;
• whether the offence was committed on the spur of the moment and was a one-off; and
• whether there are any public interest/public policy considerations involved.

6 Enforcement

6.1 What is the structure of the criminal courts in your jurisdiction?

Criminal cases in Singapore are adjudicated by the following judicial authorities:

• The magistrates' courts have jurisdiction over criminal cases where the maximum term of imprisonment does not exceed five years;
• The district courts have jurisdiction over criminal cases where the maximum term of imprisonment does not exceed 10 years; and
• All other cases fall under the purview of the High Court.

(See Sections 7 to 8 of the Criminal Procedure Code.)

6.2 Are white collar crimes tried by jury in your jurisdiction?

Singapore does not have a jury-based criminal justice system. Instead, all criminal matters are heard by judges and/or magistrates.

6.3 What is the statute of limitations for prosecuting white collar crime in your jurisdiction?

Generally, Singapore laws do not prescribe a limitation period for the prosecution of white collar crime.

6.4 Can parties that voluntarily report white collar crime or cooperate with investigations benefit from leniency in your jurisdiction?

Yes. The voluntary reporting of a white collar crime and cooperation with investigations are known mitigating factors that will be taken into consideration by:

• the AGC in deciding whether to exercise its prosecutorial discretion; and
• the courts in deciding on the appropriate sentence to impose.

6.5 Can the existence of a compliance programme constitute a defence to charges of white collar crime?

Generally, the authorities will take into account whether the company:

• has a robust compliance programme in place; and
• commissioned its own internal investigations following the discovery of potential misconduct.

Proactive measures taken to prevent, detect and address potential violations can potentially serve to delineate the wrongful acts of a rogue employee from those of the company. These actions thus serve as a shield against allegations of complicity in white collar crime.

6.6 What other defences are available to parties charged with white collar crime?

The primary defences to any party charged with white collar crime include:

• challenging the sufficiency of the evidence;
• asserting that the core legal/factual elements of the offence have not been proven beyond reasonable doubt; and/or
• arguing that it lacked mens rea – that is, the requisite criminal intent or knowledge.

See also the de minimis defence outlined in question 3.3.

A company charged with a white collar crime can further assert that its state of mind should not be deemed to be that of the officers involved in the offence (see question 2.1).

6.7 Can parties negotiate a pre-trial settlement through plea bargaining, settlement agreements or similar?

Yes. Out-of-court negotiations, which include the plea bargaining process, often take place in Singapore. The plea-bargaining process can happen at any stage in the proceedings – even after commencement of the trial. It typically takes the form of either written representations or discussions between defence counsel and the prosecution.

Insofar as plea bargaining is concerned, the prosecution may elect to exercise its prosecutorial discretion either to:

• withdraw certain charges; or
• amend and proceed with less severe charges.

The prosecution may also elect to avail of alternatives to prosecution (see question 7).

6.8 What penalties can be imposed for white collar crime? How are these determined? Can non-exhaustive penalties be imposed for such violations (eg, exclusion from public procurement, exclusion from entitlement to public benefits or aid, disqualification from the practice of certain commercial activities, judicial winding up)?

The courts will typically take into account the following factors when deciding on the appropriate penalty or sentence to impose:

• the level of harm caused;
• the culpability of the offender;
• the period of offending;
• whether restitution was made;
• whether the offender has previous convictions; and
• public policy considerations.

A wide range of penalties may be imposed for white collar crime, including:

• fines;
• imprisonment;
• penalty orders (eg, under Section 13 of the Prevention of Corruption Act (PCA));
• civil penalties (eg, under the Securities and Futures Act (SFA)); and
• sanctions (eg, under Section 232 of the SFA).

Other non-exhaustive penalties include the following:

• Prohibition orders: Under Section 101A of the SFA, the Monetary Authority of Singapore (MAS) may prohibit a person from engaging in activities that are regulated by MAS under the SFA where, among other things, the person has been convicted of:
• • an offence under the SFA; or
  • an offence involving fraud or dishonesty.
• A recent example is the nine-year prohibition order issued against the directors of Three Arrows Capital Pte Ltd prohibiting them from performing any regulated activity and from taking part in the management, acting as a director or becoming a substantial shareholder of any capital markets services firm.
• Judicial winding up: Under Section 125(1) of the Insolvency, Restructuring and Dissolution Act 2018, a company may be wound up if it:
• • carries on banking business in Singapore in contravention of the provisions of any written law relating to banking; or
  • is used for an unlawful purpose or for purposes that are prejudicial to public peace, welfare or good order in Singapore or against national security or interest.
• Debarment/exclusion from public procurement: Exclusion from public procurement is distinct from penalties that the court can impose. For example, in the context of corruption in the construction industry, if it is established that a contractor has bribed a public sector officer, the Corrupt Practices Investigation Bureau can recommend to the Standing Committee on Debarment that the contractor be debarred. This prohibits the contractor from participating in government contracts, with the aim of protecting the government's interests as a purchaser against contractors that have previously caused harm to the government.

6.9 What rights of appeal are available?

Singapore has a single-tier framework of appeal in respect of criminal matters, including white collar crime:

• Appeals of offenders that are tried and convicted in the state courts are heard at the General Division of the High Court; and
• Appeals of offenders that are tried and convicted in the High Court are heard at the Appellate Division of the High Court or the Court of Appeal.

7 Alternatives to prosecution

7.1 What alternatives to criminal prosecution are available where the authorities find evidence of white collar crime?

Some alternatives to criminal prosecution include the following.

Deferred prosecution agreements (DPAs): A corporate entity facing potential prosecution for corporate offences may enter into a DPA with the prosecution.

A DPA is a voluntary agreement between the prosecution and the offender facing potential prosecution for corporate offences where the prosecution agrees to suspend prosecution on the basis that the offender agrees to comply with certain conditions such as:

• cooperation with ongoing investigations;
• implementation of a compliance programme;
• payment of fines; and/or
• admission of wrongdoing.

(See Sections 148A to 149M of the Criminal Procedure Code (CPC)).

Stern warnings: The prosecution will issue a notice to the offender informing it of the alleged wrongdoing and the decision to issue a warning in lieu of further prosecution. For example, stern warnings were issued by the Corrupt Practices Investigation Bureau (CPIB) to six former employees of Keppel Offshore & Marine (KOM) where bribes were given to officials of Brazilian state-owned company Petrobras pertaining to rig-building contracts that it or its related companies awarded to KOM.

In this regard, the CPIB explained that the decision to issue stern warnings was largely due to the evidentiary difficulties that the local authorities faced in establishing the corrupt offences.

Conditional warnings: A conditional warning will specify the accompanying conditions, such as the need:

• for the accused to remain crime free for a specified period; or
• for the victim of the crime to be compensated or paid restitution.

For example, in 2020, the Commercial Affairs Department (CAD) served Goldman Sachs Singapore Pte Ltd (GSSP) with a 36-month conditional warning in lieu of prosecution for three counts of corruption offences punishable under Section 5(b) of the Prevention of Corruption Act. This arose from a CAD investigation into GSSP and two of its former managing directors in relation to three bond offerings underwritten by Goldman Sachs International for subsidiaries of 1MDB.

Pursuant to the conditional warning, GSSP committed, among other things, to:

• pay US$122 million to the Singapore government's Consolidated Fund within five working days of the date of the conditional warning;
• continue to cooperate with the CAD in its investigations relating to 1MDB; and
• comply with the terms of the DPA which its parent company had entered into with the US Department of Justice, whether directly or indirectly, insofar as they relate or apply to GSSP.

GSSP also agreed to disgorge a sum of US$61 million to the Malaysian authorities.

Composition: Separately, certain offences can be compounded through a voluntary arrangement between the parties. Composition is typically available for less serious offences and serves as a form of settlement whereby the offender undertakes a specific course of action, such as paying a specified sum of money to either the state or a designated party as a form of restitution or compensation.

Once the composition amount is paid and the terms of the agreement are fulfilled, the prosecution agrees not to pursue further legal action against the offender.

Reprimands: Reprimands have greater significance than ordinary supervisory warnings or letters of advice. The Securities and Futures Act (SFA) empowers the Monetary Authority of Singapore (MAS) to reprimand financial institutions and related individuals, such as when a reprimand is necessary in the public interest or to protect investors. By intervening early through the issuance of reprimands, MAS aims to prevent severe lapses in an entity's compliance programme. MAS may publicly issue the reprimand or issue it privately to the offender (see Section 334 of the SFA).

Prohibition orders: Prohibition orders may be issued to prevent persons from:

• conducting regulated activities; or
• participating in the management of financial institutions in Singapore.

Prohibition orders are imposed where there is a grave need to protect the public and the financial industry from the offender. Court sanction is not required for such orders (see Section 101A of the SFA).

7.2 What procedures are involved in concluding an investigation in this way?

The enforcement agencies will typically seek the concurrence of the Attorney General's Chambers before taking any affirmative action in respect of the above.

In respect of DPAs, after the parties have come to an agreement in respect of the terms of the DPA, the prosecution will seek the approval of the High Court by way of an application for a criminal motion for a declaration that:

• the DPA is in the interests of justice; and
• the terms are fair, reasonable and proportionate.

The prosecution must give the public notice of:

• the DPA;
• the High Court's declaration; and
• any reasons for the court's decision to make the relevant declarations.

(See Sections 149D to 149F of the CPC.)

That said, no DPAs have been entered into since their introduction in 2018.

7.3 What factors will determine whether such alternatives to prosecution are to be offered to those who have been involved in white collar crime?

Factors that affect the determination whether alternatives to prosecution are offered include:

• the severity of the offence;
• the duration of the offence; and
• whether the evidence is readily available and/or reliable.

7.4 How common are these alternatives to prosecution? What, if anything, could lead to an increase in their use?

The issuance of warnings is common in Singapore, especially where there are evidential difficulties or there is little public interest to prosecution. Specifically, and in relation to corruption offences, from 2017 to 2021:

• the CPIB issued an average of 138 warnings annually; and
• 139 individuals were prosecuted.

Such alternatives to prosecution enhance the efficiency of legal processes and conserve judicial resources, allowing the authorities to focus their resources on prosecuting serious criminal matters.

8 Private enforcement

8.1 Are private enforcement actions for white collar crims available in your jurisdiction? If so, where are they brought and what process do they follow?

Private individuals or entities may pursue private prosecutions under Section 151 of the Criminal Procedure Code (CPC).

First, a magistrate's complaint can be filed if the matter is not pursued by the relevant authorities. A magistrate's complaint can be filed for white collar offences – such as cheating (see Section 415 read with Section 417 of the Penal Code) – that are punishable by up to three years' imprisonment, a fine or both.

Once a complaint is filed, the magistrate may:

• issue a summons to compel the attendance of any person who may assist the magistrate in determining whether there are sufficient grounds for proceeding with the complaint;
• direct any police officer to make inquiries for the purpose of ascertaining the truth or falsehood of the complaint;
• refer the matter to mediation; or
• postpone consideration of the matter to facilitate the amicable resolution of the complaint, if possible.

(See Section 151(2)(b) of the CPC.)

If the magistrate decides that there are sufficient reasons for the case to proceed to private prosecution, the court can issue a private summons for the respondent to attend court (Section 153 of the CPC). The victim can conduct the prosecution in person or engage counsel to do so on his or her behalf.

Such private prosecution does not stop the complainant from commencing civil claims against the offender.

8.2 What types of relief may be sought and what types of relief are most commonly awarded? How is the relief to be awarded determined?

A person who is found guilty pursuant to a private prosecution can be sentenced to a fine, imprisonment or other criminal punishments as deemed just by the court.

The penalties to be imposed are determined largely on the basis of factors such as:

• the harm caused by the offence; and
• the level culpability of the offender

(See also question 6.8.)

8.3 Can the decision in a private enforcement action be appealed? If so, how?

Yes. The procedure for a defendant to appeal a decision in a private enforcement action is the same as that for a public prosecution. The defendant must file a notice of appeal which signals its intention to appeal the court's decision. A petition of appeal will then be filed after the court releases the grounds of its decision and/or the record of appeal of the first-instance proceedings (see Section 377 of the CPC).

On the other hand, the private person pursuing the private prosecution has no general right of appeal against any acquittal or the sentence imposed on the defendant. However, in appropriate situations, the public prosecutor may either:

• appeal any judgment, sentence or order of a court; or
• permit a private person to do so.

(See Section 376 of the CPC.)

9 Cyber issues

9.1 How do the white collar crime laws dovetail with cyber laws in your jurisdiction?

The Computer Misuse Act 1993 (CMA) provides for the protection of computer materials against unauthorised access or modifications. In particular, Sections 3 to 10 cover a number of cyber-offences pertaining to:

• unauthorised access to computer material (Section 3);
• access with intent to commit or facilitate the commission of an offence (Section 4);
• unauthorised modification of computer material (Section 5);
• unauthorised use or interception of a computer service (Section 6);
• unauthorised obstruction of use of a computer (Section 7);
• unauthorised disclosure of an access code (Section 8);
• the supply of personal information obtained in contravention of certain provisions (Section 9); and
• the acquisition of items for use in certain offences (Section 10).

Offenders who commit white collar crimes through the use of technology can be charged both:

• with offences under Singapore's white collar crime laws; and
• for contravention of the CMA.

For example, in Public Prosecutor v Casper Ang (Hong Weiliang) [2022] SGDC 206, the accused was convicted of charges under the CMA, the Penal Code and the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act for:

• unauthorised access to computer material;
• cheating;
• forgery; and
• the transfer of criminal proceeds.

9.2 What specific considerations, concerns and best practices should companies be aware of with regard to white collar crime prevention in the cyber sphere?

Computer systems and technology are ingrained in our everyday lives and information is the currency of the future. The risk of abuse has become greater as criminals increasingly conduct their activities through cyberspace.

Companies and management should be alive to the real risk of cybercrime and how it can potentially affect organisations. Cybercrime can take various forms, including:

• hacking;
• ransomware;
• scams (eg, phishing attacks); and
• unauthorised access to and modification of data.

Cybercrimes can be committed not just by external parties but also within an organisation. In fact, it is arguable that internal threats pose a greater risk to organisations, as they are difficult to detect and prevent.

Good practices to employ include the following:

• Risk assessment: Regularly assess cyber risks that are specific to the organisation.
• Comprehensive policies: Develop and enforce clear and comprehensive cybersecurity policies and procedures that cover issues such as:
• • data protection;
  • access control; and
  • incident response.
• Access control: Implement strict access controls to limit employees' access to sensitive data and systems based on their roles and security clearance.
• Regular software updates: Keep all software, operating systems and security tools up to date with the latest patches and updates.
• Governance structure:
• • Implement a governance structure to determine and drive data protection policies and responsibilities; and
  • Manage security risks by incorporating appropriate controls and putting in place standard operating procedures and processes to operationalise the policies.

10 Trends and predictions

10.1 How would you describe the current white collar crime enforcement landscape and prevailing trends in your jurisdiction? Are any new developments anticipated in the next 12 months, including any proposed legislative reforms?

As a leading global financial hub, Singapore has adopted a strong position in the fight against white collar crime in order to preserve investor confidence in the city state.

Money laundering: The prevention of money laundering was a key focus in 2023, with one of the largest anti-money laundering operations in the world making headlines. This operation involved the seizure of assets worth over S$2.4 billion, including:

• cash;
• properties;
• vehicles;
• jewellery;
• precious metals;
• virtual currencies;
• luxury handbags; and
• watches.

Investigations are still ongoing and the value of assets seized may thus increase even further.

Many of the high-value assets that were seized – such as luxury cars, bags, liquor and ornaments – are not regulated. While Singapore's anti-money-laundering/counter-terrorist financing (AML/CFT) requirements comply with international standards set by the Financial Action Task Force (FATF), the government is reviewing whether there is a need to extend the AML requirements to new classes of assets beyond what the FATF has recommended (Ministerial Statement on Singapore's Anti-money Laundering Regime dated 3 October 2023 at [50]).

The proposed examination of Singapore's AML/CFT laws comes on the back of fresh legislation that was recently passed and/or entered into force, including new offences of rash and negligent money laundering under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act. The amendments to the respective legislation have strengthened Singapore's regulatory levers against money laundering and terrorist financing.

On 9 May 2023, Singapore's Parliament passed the Financial Services and Markets (Amendment) Bill, which sets out the legal framework for financial institutions to share information on customers through a new digital platform, the Collaborative Sharing of Money Laundering/Terrorism Financing Information and Cases (COSMIC).

COSMIC will "allow participant financial institutions to share with one another information of a confidential basis, on customers whose profile or behaviour exhibits potential financial crime concerns" (Monetary Authority of Singapore (MAS) Press Release dated 9 May 2023: "Financial Services and Markets (Amendment) Bill").

It is expected that COSMIC will be launched in the second half of 2024. However, it remains to be seen whether this timeline will be accelerated in view of the public interest generated by the record-breaking money-laundering case discussed above.

(See MAS Press Release dated 9 May 2023: Supporting Statement by Mr Alvin Tan, minister of state, Ministry of Trade and Industry and Ministry of Culture, Community and Youth, and board member of MAS, on behalf of Mr Lawrence Wong, deputy prime minister and minister for finance, and chairman of MAS, on Singapore's Anti-Money Laundering Regime.)

Scams and cybercrime: Scams and cybercrime are another key concern of the enforcement agencies. The Singapore Police Force reported 33,669 scam and cybercrime cases in 2022 involving some S$660.7 million – a 25.2% increase on 2021 (26,886 cases involving S$632 million).

In an effort to combat cybercrime and protect harmful activity in the online space, the Online Criminal Harms Bill was passed on 5 July 2023. The new legislation will enable the Singapore government to protect the public by:

• taking swift and decisive action against criminal activities carried out online; and
• proactively disrupting scams and malicious cyber activities.

(See Ministry of Home Affairs Press Release dated 8 May 2023: "Introduction of the Online Criminal Harms Bill.")

One of the key features of the Online Criminal Harms Act 2023 is that it allows the Singapore government to issue directions to any online service through which criminal activities could be conducted where there is reasonable suspicion that online activity is being used to facilitate and/or carry out a crime (see Sections 6 and 7 read with the First Schedule of the Online Criminal Harms Act 2023).

10.2 What high-profile white collar crime cases have arisen in your jurisdiction in recent times?

Money laundering: As discussed in question 10.1, Singapore dealt with one of the world's largest transnational money-laundering scandals in 2023. Dubbed the 'billion-dollar money laundering case', it involved:

• some of the largest local and international banks in Singapore;
• property agents; and
• precious stone and precious metal dealers.

Corruption in the public sector: In 2023, the Corrupt Practices Investigation Bureau commenced an investigation against Transport Minister S Iswaran. This is the first graft probe of a sitting cabinet minister in close to four decades and has sparked significant public interest in the matter, including heated parliamentary discussions on related issues such as the code of conduct for civil servants.

Corruption in the private sector: In 2023, the appeal was heard in Chang Peng Hong Clarence v Public Prosecutor [2023] SGHC 225, which involved bribes totalling more than S$5 million – the highest amount in a private sector corruption case to date. While the defence successfully appealed the conviction on one charge of corruption, the Singapore High Court upheld the conviction on the remaining charges and imposed a sentence of 80 months' imprisonment on the accused persons.

Interestingly, in one of the first cases of its kind, the Singapore High Court also imposed three penalty orders on the recipients of the bribes for sums of S$1,796,090, S$1,905,520 and S$2,175,985 respectively. In addition, an 'in-default' imprisonment sentence totalling 2,129 days was imposed by the court in order to incentivise payment of the penalty orders.

The imposition of multiple penalty orders with corresponding 'in-default' imprisonment terms is an effective tool in Singapore that will serve to disgorge the ill-gotten gains of corruption.

11 Tips and traps

11.1 What are your top tips for the smooth implementation of a robust compliance programme and what potential sticking points would you highlight?

Tips:

• Strong leadership commitment: The successful implementation of a robust compliance programme starts from the top. The company's leadership and management should:
• • provide their fullest commitment to compliance; and
  • be seen to lead by example.
• Their visible support will invariably set the tone for the entire organisation.
• Customised policies and procedures: Companies and their management should familiarise themselves with known risks to their industry. Thereafter, they should develop and introduce tailored policies and procedures that address such identified risks. These policies should be clear and should be regularly updated to reflect changes in regulations and the business environment.
• Accessibility to policies: Company compliance policies should be easily accessible to all employees. For example, they can be uploaded onto the company's intranet, shared drives or notice boards.
• Effective training and awareness programmes: Companies should provide regular training to employees at all levels to ensure that they understand compliance policies and their responsibilities. This is done to foster a culture of awareness and ethical behaviour. It is also a reflection of the importance that companies place on such policies and compliance programmes.
• Monitoring: Companies should implement mechanisms to monitor company procedures and policies and ensure that they are working as intended, to keep the company compliant with all regulatory requirements. Compliance officers or specific officers/employees can be designated to oversee the company's compliance with the implemented procedures and policies.
• Reporting and whistleblower protection: Companies should:
• • encourage employees to report potential violations anonymously and without fear of retaliation;
  • establish a clear policy for protecting whistleblowers;
  • encourage reporting of wrongdoing; and
  • ensure confidentiality and non-retaliation.

Potential sticking points:

• Limited resources: An effective compliance programme requires sufficient resources, including staff, time and budget. This may prove to be a challenge, particularly for smaller organisations.
• Cultural challenges: As business practices and cultural customs vary across different countries, a rigid compliance programme may not be suitable for or applicable to all contexts. For example, entertainment and hospitality during business negotiations may feature more prominently in some cultures than in others.
• Resistance to change: Employees – including members of senior management – may be resistant to changes associated with compliance measures as they perceive them to be disruptive or tedious.
• Compliance fatigue: Employees may become complacent if compliance training and messaging are repetitive or ineffective.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.