Why wasn't Ong Beng Seng charged with Iswaran? Lawyers weigh in

SINGAPORE: When former Transport Minister S Iswaran was charged with corruption and multiple other offences last week, his alleged accomplice was not hauled to court alongside him despite being named in almost all the 27 charges.

Iswaran is accused of obtaining items worth more than S$384,000 (US$287,000) from billionaire hotelier Ong Beng Seng, such as Singapore F1 Grand Prix tickets and a paid-for trip to Doha. Some of these were allegedly in exchange for advancing Mr Ong’s business interests.

Both men were arrested on Jul 11 last year and investigated by the Corrupt Practices Investigation Bureau.

In response to media queries on why Mr Ong has not been prosecuted yet, the Attorney-General’s Chambers (AGC) said it will decide on the investigations against him and others after the Iswaran case is completed – including the presentation of evidence in court.

CNA speaks to legal experts and lawyers on the possible reasons behind AGC’s move and what powers the prosecution has.

PROSECUTORIAL DISCRETION

Lawyers told CNA that prosecutors can decide whether to charge someone, when to charge them and what charges to bring against them.

Under the Criminal Procedure Code, the attorney-general – who also serves as the public prosecutor in Singapore – has discretion over the "control and direction of criminal prosecutions and proceedings".

This means that the prosecution is under no legal obligation to bring charges within any specific time frame and can choose to do so whenever it is ready, said Mr Alexander Woon, a law lecturer at the Singapore University of Social Sciences who practises at RHTLaw Asia.

This is necessary because investigations sometimes take a long time – possibly years – especially for complex white-collar cases, added Mr Woon, who is also a former deputy public prosecutor.

Nevertheless, he noted that the prosecution is obliged to act in the public interest. An accused person must be given due process and prosecuted in a timely manner, while the prosecution must also do so to “vindicate the rights of victims and show the public that justice is being done”.

“The prosecution should not abuse its discretion for merely tactical reasons,” Mr Woon added.

VARIOUS CONSIDERATIONS

It is also not unusual for accused persons in a case to be charged at different times.

If the prosecution withholds charging, these people may cooperate and help convict the person who has already been charged, said Farallon Law’s managing director Nicolas Tang.

If both the giver and receiver of a corrupt gift are charged, they would not want to incriminate themselves when giving evidence during a trial, said Mr Tang.

This is especially so when evidence alone is not enough for a conviction and the testimony of witnesses is necessary to explain the gifts.

Associate Professor Mervyn Cheong from the National University of Singapore (NUS) said that AGC would also be able to better focus the court’s attention on the intention of one accused person, whether they be the giver or receiver.

Whether someone intended to be corrupt should be subjectively determined, based on objective facts.

“So, if more parties are involved, it could cause the case and trial to become unnecessarily complicated,” added the practising lawyer from Advocatus Law.

He cited a previous corruption case where only one party was prosecuted. In 2014, law professor Tey Tsun Hang was charged with obtaining sex and gifts from a student, but the student – the alleged giver – was not charged. She testified during the trial and Tey was sentenced to five months’ jail.

His conviction was overturned on appeal when a High Court judge found that the student's actions were not in return for better grades.

Mr Woon also cited a high-profile series of corruption cases that he worked on during his time at AGC. Six senior executives from shipbuilder ST Marine were charged in court at different times over S$24.9 million in bribes that were given to employees of ST Marine’s customers.

Investigations against accused persons may take varying lengths of time, said Mr Woon. An accused person’s defence counsel could also still be making representations to the prosecution.

Such representations, which is an appeal to the prosecution either verbally or in written form, can be made at any stage of the legal proceedings, including before someone is charged.

Another possible, simpler reason is resource constraints.

“It is likely that there is a particular team of prosecutors handling a series of interconnected accused persons. These prosecutors cannot be everywhere at once,” said Mr Woon.

“They will often need to deal with one or two accused persons at a time, before they have the capacity to deal with the next few.”

DEFENCE AFFECTED?

Lawyers said it is often better for defence counsel when all parties in a corruption case are charged at the same time.

The courts would have a “complete picture” of what exactly happened, which means that the defence would know what the prosecution and co-accused persons would argue, said NUS' Assoc Prof Cheong.

Mr Tang from Farallon said there is “generally no advantage” for defence counsels if one party is charged before another. Those who have not been charged may cooperate with the authorities to testify against the charged party to avoid prosecution themselves, he added.

When all parties are charged, their lawyers would want the option to cross-examine witnesses and potentially the other accused persons, if they turn hostile, said Mr Woon.

“That said, it is also sometimes advantageous for the defence if the prosecutions take place sequentially, especially if the earlier prosecutions fail. This can result in the charges against one’s client being withdrawn before trial.”

PROSECUTION MAY DEPEND ON ONG'S COOPERATION

When asked why AGC is holding off on whether to charge Mr Ong until Iswaran’s case is completed, Mr Tang said the prosecution might want to assess the extent of the tycoon's cooperation with authorities.

The team of prosecutors in Iswaran’s case is led by Chief Prosecutor Tan Kiat Pheng, while Iswaran is defended by a team led by Senior Counsel Davinder Singh.

Pointing to AGC’s statement, Mr Tang noted that one of the key elements AGC will consider is what evidence Mr Ong will give during Iswaran’s trial.

“If the prosecution were to charge Mr Ong at the same time as Iswaran, then there would be far less likely possibility of obtaining Mr Ong’s cooperation,” he added.

“Mr Ong could then choose to become uncooperative before and during Iswaran’s trial so as not to incriminate himself any further since he has already been charged.”

Less evidence would then be available to prosecutors in Iswaran’s case, said Mr Tang. “Hence, it is a matter of weighing priorities and considering the public interest.”

Among the charges that Iswaran faces are two under the Prevention of Corruption Act, for corruptly obtaining bribes from Mr Ong in exchange for advancing his business interests.

The Act imposes a presumption of corruption in certain cases, including Iswaran’s case due to his position as a Cabinet minister at the time.

Assoc Prof Cheong said the burden is on Iswaran to prove, on a balance of probabilities, that he did not corruptly obtain gratification. This means that the prosecution could find the case against Iswaran to be more straightforward.

“When Iswaran defends himself and gives evidence about his interactions with Mr Ong, the evidence could shed more light on whatever evidence – or not – that they currently have against Mr Ong and, perhaps, help their case against Mr Ong become clearer,” added Assoc Prof Cheong.

However, criminal lawyer Adrian Wee from Lighthouse Law said it was “difficult to see” why the prosecution needs to wait for Iswaran’s case to conclude before deciding what to do with Mr Ong.

Mr Wee wrote in a LinkedIn post: “Corruption requires that two or more parties come together to make a corrupt bargain. In coming to the view that Iswaran was bribed by Mr Ong, the prosecution must also necessarily have come to the conclusion that Mr Ong had bribed Iswaran.”

Mr Wee further noted that Mr Ong cannot decline to testify in Iswaran’s trial, given that he has not been charged in court. Accused persons have the option of remaining silent.

“Instead, he faces the prospect of a long wait while Iswaran’s case plays out, all the while being subject to the opaque vagaries of prosecutorial discretion,” Mr Wee added.