SINGAPORE: Heavyweights from both the prosecution and defence in the case of former transport minister S Iswaran clashed in the High Court on Tuesday (Sep 24)otso, with an argument breaking out over the basis of the initial corruption charges against the former public servant.
The two corruption charges, linked to gifts from F1 bigwig Ong Beng Seng, were amended officially at the 11th hour to Section 165 of the Penal Code for a public servant obtaining valuables from someone linked to him.
Iswaran admitted to obtaining more than S$400,000 (over US$300,000) of valuables like tickets to F1 races, musicals and football matches, bottles of whisky and a Brompton bicycle from business tycoon Ong Beng Seng and Mr Lum Kok Seng, the managing director of Singapore-listed Lum Chang Holdings, between November 2015 and November 2022.
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.
Iswaran's lead lawyer Davinder 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. Both men are senior counsel.
Iswaran's guilty plea came as a surprise after months of stating he would be contesting his charges. According to Mr Singh, he did not agree to plead guilty earlier because he did not agree to the corruption charges, which coloured the complexion of the entire case.
This was even though the bulk of his charges was under Section 165 of the Penal Code, for obtaining valuables from someone associated with him officially. There are no previous reported cases and no sentencing framework for this rare offence, and Iswaran himself said he was not aware of such an offence at the time.
Once the corruption charges were amended, Iswaran decided to plead guilty. He admitted to four counts under Section 165 and one charge of obstructing justice. Another 30 charges under Section 165 will be considered in sentencing.
What is Section 165 of the Penal Code?Under Section 165, it is an offence for a public servant to accept or obtain anything of value, without payment or with inadequate payment, from any person with whom he is involved in an official capacity.
Legal experts whom CNA spoke to previously noted two key differences between the charges under the Prevention of Corruption Act and the Penal Code that Iswaran initially faced.
Whether someone who receives a benefit has done anything in exchange for the benefit Whether a corrupt element is involvedMr Adrian Wee, managing partner of Lighthouse Law, said that a public servant can receive such a benefit without being induced or rewarded to do anything or give any favours in return.
This means there may not necessarily be any corruption involved in Section 165 offences.
Mr Chooi Jing Yen, partner at Eugene Thuraisingam LLP, said that it appears offences under Section 165 are “easier to prove”.
He said this is because the prosecution does not need to prove that a benefit was in exchange for the receiver agreeing to do something.
Collapse ExpandISWARAN MORE THAN A PASSIVE ACCEPTOR OF GIFTS: DAGMr Tai argued that Iswaran was "more than a passive acceptor of gifts". He said Iswaran was a minister from May 2011 to January 2024, when he resigned.
During his tenure as minister, Iswaran obtained gifts amounting to S$403,297.92 from two local businessmen while he held portfolios with official dealings with the two gift-givers, said Mr Tai.
In particular, Mr Ong had interest in the 2012 and 2022 F1 facilitation agreements, while Mr Lum was connected to the T315 contract his company Lum Chang Building Contractors had with the Land Transport Authority (LTA).
The latter was a S$325 million contract between LTA and Lum Chang Building Contractors for works to the Tanah Merah Station and viaducts.
Mr Tai said the objective of the Section 165 offence is to criminalise a public servant who, through obtaining or accepting gifts, "makes questionable his loyalty to the government in respect of the business transactions in question".
"If public servants could accept substantial gifts in such a situation, over the long term, public confidence in the impartiality and integrity of government would be severely undermined," said Mr Tai. "Not punishing such acts would send a signal that such acts are tolerated."
He cited an Indian Supreme Court case, which stated that where a public servant commits an offence under Section 165, "it is implicit ... that the public servant has misused or abused the power of office held by him as public servant".
"This statement recognises that in some cases, the offence constitutes, not only a misuse of power, but an abuse of office, as by repeatedly obtaining gifts, the public servant signals that he is amenable to such patronage at the expense of the integrity of his office," said Mr Tai.
He said Iswaran's position as minister represents the highest level of executive office in the Singapore government.
"The Singapore government is well-known for its longstanding commitment to integrity and honest government," said Mr Tai. "The accused's acts have had a significant impact on this hard-earned reputation. By the time of this resignation, the accused had been a minister for 12 years. The fact that he was a minister of such seniority and standing would have amplified the impact of the accused's behaviour."
He said "the facts show that the accused was more than a passive acceptor of the gifts in question".
Mr Tai said Iswaran was aware that both Mr Ong and Mr Lum were directly concerned in ongoing official business which was connected to Iswaran's official functions.
Related:
As it happened: Iswaran convicted of five charges including obtaining gifts, to be sentenced on Oct 3 
Former Singapore transport minister Iswaran pleads guilty after charges amended His relationship was closer and more intertwined with Mr Ong, said Mr Tai.
"Ong was the beneficial owner of over 90 per cent of the shares in Singapore GP, which had a 16-year-long relationship with the Singapore Tourism Board to promote, host and stage the F1 race between 2008 and 2023, save for two years when the F1 was not held due to the COVID-19 pandemic," said Mr Tai.
At the time of the charges involving Mr Ong, Iswaran was the minister responsible for overseeing the Singapore Formula 1 Grand Prix as a national project, and also held the position of chairman of the F1 steering committee.
Mr Tai said Iswaran's actions, when he was the most senior government representative negotiating with SGP on F1-related business matters, "significantly compromised his position as chief negotiator for the government".
However, Mr Tai said the prosecution accepts a statement by the Ministry of Trade and Industry in January that there was "nothing to suggest that the F1 contracts were structured to the disadvantage of the government".
The prosecution also acknowledged that Iswaran did not intervene in any decisions relating to the T315 contract in favour of Mr Lum's company.
As for the obstructing justice charge, where Iswaran asked Mr Ong to bill him for related expenses for a trip to Doha, Mr Tai said Iswaran knew his payment for the business-class flight made it less likely that he would be investigated by the Corrupt Practices Investigation Bureau.
While Mr Tai acknowledged Iswaran's voluntary disgorgement, he also noted that it was made "late in the day" and asked the court to grant it "limited mitigating weight".
Related:
What were Iswaran's dealings with Ong Beng Seng and Lum Kok Seng? 
Iswaran pleads guilty: Key moments from graft probe to trial DEFENCE EXPLAINS WHY GUILTY PLEA COMES ONLY NOWDefence counsel Davinder Singh began his arguments on sentence by asking the judge to consider what was "the state of play and the complexion of the case" before the prosecution indicated it would no longer be proceeding with the corruption charges.
CPIB commenced investigations in July 2023.
"At that time, my client had been an MP since 1997, and had served as a minister since 2006. It's important to understand what was being understood at that time as being at the heart of the case against my client," said Mr Singh.
He cited statements by agencies, multiple news articles about Iswaran's arrest, and debates in parliament, focusing on the two corruption charges when the bulk of Iswaran's charges were under Section 165.
Mr Singh read out headlines from the BBC, CNA and The Straits Times, including the titles of liveblogs published on Tuesday morning itself.
"Mr Iswaran's position from day one has been that the (corruption) charges were baseless. He denied the charges from the very first, and has consistently maintained that position," said Mr Singh.
"He was put in the position where he had to contest the case against him in light of the (corruption) charges. As your honour will remember, to that end he requested an early trial. He was the accused, yet he was the one who wanted the trial to take place as soon as possible."
He said it was Iswaran who applied for a joint trial.
"He did not want any delay of the trial of the Ong Beng Seng charges, which included the two (corruption) charges, as he told the court that he was concerned that Mr Ong is 78 and it would be prejudicial and unfair to him, if because of his age or health Mr Ong is unable to testify," said Mr Singh. "In other words, it was important for him to be acquitted in court in relation to the charges involving Mr Ong Beng Seng, which included the (corruption) charges."
Mr Singh said his client's case was understood to be a case involving corruption charges, while the other offences were described as "other offences" or "lesser charges".
"Why is that relevant?" he asked. "It is relevant because if the reality in Singapore is that - that is how the (corruption) charges are understood, and given how Singaporeans view the (corruption) charges as evidenced by these reports, it was not only reasonable but entirely necessary for my client to contest the (corruption) charges."
He said that was what Iswaran did until the prosecution amended the charges to charges under Section 165.
"That event, on account of the further representations, changed the complexion of the entire case and of course changed the seriousness of the allegation under the (corruption) charges," said Mr Singh.
He explained that the disgorgement could not have been made earlier, because it would have impacted on the defence not just on the corruption charges but all other charges and would have "coloured the view taken on those charges".
Mr Singh said Iswaran recognises it was wrong of him to have accepted the items from the two men under Section 165.
He "readily disclosed" the gifts when first interviewed by CPIB and said they were given to him in the context of his friendships with Mr Ong and Mr Lum.
"Mr Iswaran also considered that although he was not aware of Section 165 of the Penal Code at the material time, he fully understands that ignorance of the law is no excuse," said Mr Singh.
With the amendment of the charges, Iswaran believes that "it is the right thing to do to accept that what he did was wrong under Section 165", said the lawyer.
"Mr Iswaran is also very mindful of not wanting the people who he loves the most, his family, to continue to bear the toll of what has happened."
Iswaran's wife, who was in the public gallery supporting him, bore no expression on her face as this was said.
Mr Singh argued that the ex-minister's offences under Section 165 resulted in no harm or minimal harm, with no loss caused as the items were given either as a gift or of the giver's own accord.
He noted that Iswaran was appointed minister of transport only between May 2021 and January 2024. The contract Mr Lum was interested in was before this period, and LTA did not award any contract to Mr Lum's companies while Iswaran was transport minister.
Mr Singh also argued that there was no suggestion that Iswaran's loyalty to the government was ever compromised.
"The fact that there is a prosecution against my client under 165 is the most powerful signal that can be sent," said Mr Singh. "And if you ask anyone in Singapore, indeed outside Singapore today, about whether that signal has already been sent ... the answer is yes!"
He said there was no suggestion that public confidence in the impartiality and integrity of the government has been undermined.
"The time that the public learned about these items having been given to my client was the very same moment the government sent the signal that that is unacceptable. So we're not talking about a case where these gifts have been given, the public is talking about it, it's eroding trust in the government as it's being seen as allowed. That's not the case," said Mr Singh.
He pointed to Iswaran's charges and asked where there was any suggestion that the office or power as a minister was used, "much less misused or abused".
"The public learnt that my client had accepted items at the same time as he was charged, and because he was charged. When the people in the society and the world find out about the items on the day my client is charged and because he is charged, what that does is uphold and send the strongest signal that the government is upholding its longstanding commitment to integrity and honest government. In other words, it will charge one of its own ministers," said Mr Singh.
Taking issue with the prosecution's submission that Iswaran was more than a passive acceptor of the gifts, the lawyer said: "No disrespect. I don't follow this. If you look at the Doha charge, he was asked whether he'd like to go, and he said yes, and he had his reasons for going."
"He wanted to see how a small city like Doha organises world-class events, which is relevant to Singapore. Where is the active? We need to draw a distinction between the fact that he was a public servant at that time and whether he actually leveraged on it," said Mr Singh.
He said there was no factual basis for the prosecution to say Iswaran had compromised his position as chief negotiator for the government in terms of the F1 race.otso
Davinder Singh, the lawyer representing Singapore's former transport minister S Iswaran arrives at the Supreme Court in Singapore on Sep 24, 2024. (Photo: REUTERS/Caroline Chia)