CNA Explains: How the judge decided on Iswaran’s sentence

SINGAPORE: Former transport minister S Iswaran was sentenced to a year’s jail on Thursday (Oct 3) for obtaining valuables from two businessmen and obstructing justice by repaying the cost of a flight he had taken.
Justice Vincent Hoong delivered his sentencing remarks in a 40-minute session, dismissing several of the defence’s arguments and stating in an unexpected turn that both the sentences sought by the prosecution and defence were “manifestly inadequate”.
In a 94-page written judgment released after the hearing, the veteran judge explained each part of his decision in detail.
What is the gravamen or essence of the rare charge under Section 165, what is the objective of Section 165 and what did the judge consider relevant or irrelevant to sentencing?
CNA breaks it down.
Section 165 of the Penal Code is a rarely used offence. It makes it an offence for a public servant to accept or obtain, or agree to accept or attempt to obtain, any valuable thing from someone who could be connected in proceedings or business linked to him or his official functions.
The penalties are a maximum of two years’ jail, a fine, or both.
No cases of Section 165 or its sentencing framework were reported before Iswaran.
There appear to be only three prior prosecutions involving Section 165, which took place before Singapore’s independence and involved police officers who took bribes.
Section 165 falls within Chapter 9 of the Penal Code, which provides for offences by or relating to public servants.
Justice Hoong said it is noteworthy that Chapter 9 also contains Section 161, which prohibits a public servant from taking gratification but requires proof that the gratification constituted a motive or reward.
“The requisite mens rea is that of knowledge,” said the judge of Section 165. “It suffices that the public servant knew that the giver of the valuable thing was, or is likely to be, concerned in any proceedings or business transacted or about to be transacted by him or having any connection with his official functions or those of his superior.”
Quoting the law minister’s written reply to a parliamentary question in 2022, Justice Hoong said the offences under Sections 161 to 165 of the Penal Code deal specifically with bribery and other forms of corrupt practices involving public servants.
“Compared to the offences in the Prevention of Corruption Act, (they) are more targeted in scope toward tackling the various forms of bribery of, and the taking of bribes by public servants,” said Justice Hoong.
Section 165 also applies to all public servants and does not detail what is a “valuable thing”.
“In my view, the plain and ordinary meaning of ‘valuable thing’ in the legislative context must mean a thing ‘having considerable monetary worth’,” he said. 
The objective of Section 165 also differs from certain charges under the Prevention of Corruption Act, said Justice Hoong.
He said it is not necessary that an offender provided any quid pro quo for the valuable thing to constitute an offence under Section 165.
It is also not necessary for the prosecution to prove that the offender had acted with a corrupt intent in obtaining or accepting the valuable thing.
The jail terms for offences under Sections 5 or 6 of the Prevention of Corruption Act go up to seven years, a fine of up to S$100,000, or both. This is more extensive than the penalties under Section 165, the judge noted.
Justice Hoong said it is about the damage to the trust in public institutions, if there is a perception that public servants could be swayed by offers of valuable items.
“Persons who hold public office are conferred status and power by virtue of such office for the purpose of serving the public interest, and the obtaining of gifts from persons who have a connection with a public servant’s official duties is an abuse of such power,” he said.
Since the objective of Section 165 is to safeguard the integrity of public institutions and the public interest, general deterrence assumes centre stage in sentencing, said Justice Hoong.
He therefore rejected the defence’s submission that general deterrence has “limited application” in Iswaran’s case simply because such offences are not prevalent.
Justice Hoong said there appeared to be no reported cases in Singapore involving an offence under Section 165 to guide sentencing.
Limited guidance may be obtained from cases under the Prevention of Corruption Act, in light of the differences in the statutory context and the punishment spectrum, said the judge.
Therefore, to come to a sentence, the first step is to determine the “default punitive position” for the offence by referencing the punishment at the two ends of the spectrum of possible sentences, before adjusting for any aggravating or mitigating factors.
These are the individual and total sentences sought by the prosecution and the defence, as well as the sentences eventually given by Justice Hoong.
On harm caused, Justice Hoong said that the “mere perception that the offender is under the influence of the giver is itself a type of harm”, because of the “paramount importance of trust and confidence in public institutions”.
“Nonetheless, the court should eschew an over-emphasis on the value of the valuable item, for two main reasons,” said the judge.
First, to accept or obtain a valuable item is itself an element of the offence, and to consider the mere fact that the item is valuable as an aggravating factor would be double-counting.
“Thus, the value of the item is relevant in sentencing only insofar as it is sufficiently significant as to indicate a higher level of damage to the public interest, thereby constituting an aggravating factor,’ said Justice Hoong.
He added that generally, the greater the public interest in the concerned transactions or the official functions of the offender, the greater the harm that would ensue.
Iswaran made a voluntary disgorgement of S$380,305.95 to the state a day before his intended trial on Sep 24. This refers to giving up illegally obtained gains and differs from restitution.
He also returned all the money he had received from his salary as a minister and allowances as a Member of Parliament from the start of investigations by the Corrupt Practices Investigation Bureau.
However, Justice Hoong found that these actions were unlikely to adequately remedy the damage done to the trust and confidence in public institutions.
“It is also significant, in my view, that the accused had simultaneously made public statements rejecting the allegations in the charges as false and asserting his innocence,” said Justice Hoong. “Thus, I have considerable difficulty accepting that these acts were indicative of the accused’s remorse and desire to make reparations”.
Justice Hoong said the total jail term would be “commensurate with the accused’s culpability” and would “also not be crushing, having regard to the accused’s prospects and past records”.
In conclusion, the judge said general deterrence is the predominant consideration in sentencing for offences under Section 165.
He applied the guidelines by the Sentencing Advisory Panel on discounts for guilty pleas and accorded Iswaran a 10 per cent reduction on jail terms for all the proceeded charges except the charge involving a Doha flight on a private plane owned by tycoon Ong Beng Seng. 
This charge was amended from corruption to Section 165 on the day of Iswaran’s intended trial opening. For this charge, the judge gave a 30 per cent discount.
Iswaran has not said whether he intends to appeal his sentence.