What is Section 165, and how did Iswaran go from claiming trial to pleading guilty?: ST Explains

Former transport minister S. Iswaran on Sept 24 pleaded guilty to five charges – four under Section 165 of the Penal Code for obtaining, as a civil servant, valuable items and one for obstructing the course of justice.

Iswaran, who faced a total of 35 charges, had released a statement after he was handed 27 charges on Jan 18, saying he was innocent and that he would focus on clearing his name.

What followed were months of court hearings and likely several behind-closed-doors meetings, which led to, among other things, two corruption charges being amended to Section 165 charges.

The Straits Times asked legal experts what typically happens behind the scenes leading up to an accused person’s day in court.

Q: Is it common for an accused person to plead guilty in a case where a trial is indicated at the outset?

A: It is not uncommon for an accused person to plead guilty, even after initially indicating they would like to claim trial, said Mr Alexander Woon, provost’s chair at Singapore University of Social Sciences’ School of Law.

Mr Woon, who currently practices at RHTLaw Asia, said of the six cases he handled during his time as a deputy public prosecutor, five that were meant to go to trial ended in a plea of guilt.

He said: “Early on in the process, many accused persons will think they are not guilty and feel they can contest the charge.

“But as time goes on, as the defence talks to the prosecution, and there’s disclosure of evidence, it may become increasingly obvious that, actually, there’s nothing to contest. And it goes from a contested charge to a plea of guilt.”

Q: What goes on between the defence and the prosecution at the pre-trial stage?

A: SMU associate professor of law Eugene Tan said exchanges between defence lawyers and the prosecution at the pre-trial stage often occur through representations. This could result in fewer or less severe charges in exchange for a guilty plea.

Mr Woon said that while this process is colloquially known as plea bargaining, the term could be misleading.

He said: “Unlike other jurisdictions where there is a formal plea bargaining process, in Singapore, under the Constitution, the prosecution has discretion. You can ask the prosecution for things, but whether they agree or not is entirely up to them.

“The courts in Singapore are also not bound by anything that goes on during this process.”

Prof Tan said the public prosecutor’s acceptance of the guilty plea offer by Iswaran removes the uncertainty of a trial’s outcome in terms of securing a conviction.

“It also saves public resources, especially in a prolonged trial,” he said.

Prof Tan added: “The public prosecutor believes that they could have made out a case on the Prevention of Corruption Act (PCA) charges. 

“Nevertheless, the plea bargain agreed to in this case secures the certainty of conviction on Section 165 of the Penal Code charges and the obstruction of justice charge, while also producing a reasonable and fair outcome, and with the accused being held accountable for his actions.”

Q: What is Section 165, and why were Iswaran’s corruption charges amended?

A: Section 165 of the Penal Code punishes the obtaining of gifts in public office when there are official business dealings between the parties.

It emphasises that such behaviour is a very serious matter, Deputy Attorney-General Tai Wei Shyong said in his sentencing submissions. 

In response to media queries, an Attorney-General’s Chambers (AGC) spokesperson said that, in deciding whether to amend the charges, the AGC considered the litigation risks involved in proving the corruption charges 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,” the spokesperson said.

In a 2022 written parliamentary reply, Home Affairs and Law Minister K. Shanmugam said that compared with offences in the PCA, the offences under Sections 161 to 165 of the Penal Code are more targeted in scope towards tackling the various forms of bribery of, and the taking of bribes by, public servants.

For instance, Section 165 makes it an offence for a public servant to accept anything of value, without payment or with inadequate payment, from any person with whom they are involved in an official capacity.

Unlike the PCA, there is no need to further establish that this was an inducement or reward for the public servant to act in such a manner, he said.

Mr Shanmugam added that there was 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 also said the Government would review the possibility of shifting these offences to the PCA.

Q: What does it mean when charges are taken into consideration?

A: A total of 30 charges will be taken into consideration during Iswaran’s sentencing on Oct 3.

Prof Tan said this refers to a situation where an accused person admits to the charges, but they are not convicted of them.

He said: “The effect of offences taken into consideration is to raise the total sentence imposed for the offences for which the accused was convicted of.”

Prof Tan added that it was not uncommon for the public prosecutor to recommend that the court take certain charges into consideration when an individual pleads guilty.

Prof Tan cited Section 148(1) of the Criminal Procedure Code, which states that the court may take into consideration other offences in passing sentence in cases begun by the public prosecutor, with consent of the prosecution and the accused.

“Bearing (this) in mind, the public prosecutor and the defence would have to agree on the number and nature of charges Iswaran pleads guilty to and the number and nature of charges taken into consideration,” he said.

Source: Straits Times © SPH Media Limited. Permission required for reproduction.

More job seekers cite discrimination over age and nationality in 2023: MOM survey Unacceptable for public servants to accept valuable gifts, says Deputy A-G