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In the high court of the republic of singapore
 SGHC 265
Magistrate’s Appeal No 9178 of 2018/01
Magistrate’s Appeal No 9179 of 2018/01
Criminal Motion No 35 of 2019
Criminal Motion No 36 of 2019
[Criminal Law] — [Statutory offence] — [Prevention of Corruption Act]
[Criminal Procedure and Sentencing] — [Sentencing] — [Appeals]
[Criminal Procedure and Sentencing] — [Sentencing] — [Principles]
This judgment is subject to final editorial corrections approved by the court and/or redaction pursuant to the publisher’s duty in compliance with the law, for publication in LawNet and/or the Singapore Law Reports.
Public Prosecutor and another appeal and other matters
 SGHC 265
High Court — Magistrate’s Appeals Nos 9178 of 2018/01 and 9179 of 2018/01 and Criminal Motions Nos 35 and 36 of 2019 Chan Seng Onn J 26 July 2019, 3, 24 February, 21 August 2020
2 December 2020 Judgment reserved.
Chan Seng Onn J:
1 The aim of all sentencing courts, without exception, is to arrive at an appropriate sentence that befits the crime committed by the offender, after having regard to all the relevant facts, circumstances and societal context surrounding the offence. It is this infinite permutation of relevant considerations that renders sentencing a fluid exercise, and which accords the sentencing judge a degree of flexibility and autonomy in arriving at the appropriate sentence. This appropriate sentence is not defined by a rigid formula or a set of unyielding rules. Instead, the court’s discretion is guided by broad general principles of sentencing.
2 In Singapore, the sentencing process is further aided by the recent proliferation of sentencing guidelines and frameworks in our courts’ jurisprudence that guide, rather than restrict, the sentencing court’s discretion. These judicial creations take a wide variety of forms and have been applied to a wide assortment of offences. Constructed well, they are tools that promote consistency and transparency in our criminal justice system (amongst other aims), while reducing uncertainty and arbitrariness. Constructed poorly, they may generate unintended gaps, discontinuities, ceilings and/or minimum sentences which may result in incoherence and uncertainty in the sentencing process.
3 When constructing frameworks and guidelines, the form that each framework or guideline takes is secondary. What matters is its substantive content, and whether it adheres to and abides by the broad general principles of sentencing. The present appeals present an opportunity to revisit some of these broad general principles of sentencing.
4 The present appeals concern one of Singapore’s largest private sector corruption cases to date. The appellants, Takaaki Masui (“Masui”) and Katsutoshi Ishibe (“Ishibe”), each faces 28 charges under s 6(a) read with s 29(a) of the Prevention of Corruption Act (Cap 241, 1993 Rev Ed) (“PCA”) for conspiring with one another to corruptly obtain bribes from one Koh Pee Chiang (“Koh”) as an inducement for doing acts in relation to their employers’ affairs. After a 15-day trial, the District Judge (“DJ”) convicted them on all charges. His decision can be found in Public Prosecutor v Katsutoshi Ishibe and another  SGDC 239 (“Decision”). The DJ sentenced each appellant to 66 months’ imprisonment and a penalty of S$1,025,701 (in default to serve six months’ imprisonment) (Decision at , ).
5 The first charge for Masui is reproduced as follows:
are charged that you, between 2002 and 2007, in Singapore, being an agent of [Nissho Iwai International (Singapore) Ltd/ Sojitz Asia Pte Ltd] did abet by engaging in a conspiracy with [Ishibe] to corruptly obtain from [Koh], trading as Chia Lee & Co (“Chia Lee”), gratification as an inducement for doing acts in relation to your principal’s affairs, to wit, by assisting Chia Lee to advance its business interest with [Nissho Iwai International (Singapore) Ltd/ Sojitz Asia Pte Ltd], and in pursuance of the conspiracy and in order to the doing of that thing, an act took place, to wit, sometime in February 2004, you did receive $71,773 from the said [Koh], which act was committed in consequence of your abetment and you have thereby committed an offence punishable under Section 6(a) r/w Section 29(a) of the Prevention of Corruption Act, Chapter 241.
6 The remaining 27 charges for Masui differ only in respect of: (a) the name of the appellants’ principal as it was renamed after a corporate merger; (b) the date on which the gratification was received; and (c) the amount of gratification received. Ishibe, as the co-conspirator faced the same 28 charges, except that the individual receiving the gratification from Koh was always Masui. For ease of reference, I refer to their respective charges as C1 to C28, with the understanding that each of these refers to one charge for Masui and/or one charge for Ishibe, as the case may be, ie, that C1 represents the first charge proceeded against Masui and/or Ishibe, as the case may be.
7 The appellants appealed against both their conviction and sentence, and their appeals were heard over the course of four non-consecutive days between 26 July 2019 and 21 August 2020.
8 On 26 July 2019, I allowed Ishibe’s criminal motion in Criminal Motion No 35 of 2019 to adduce further evidence in the form of the original charges against him dated 25 February 2015.
Foot Note 1
Certificate of Result of Criminal Motion 35 of 2019 dated 26 July 2019; Certified Transcript dated 26 July 2019 at p 2, lines 3 – 5 and p 13, lines 2 – 3; Ishibe’s Affidavit in Support of Criminal Motion dated 17 July 2019 at paras 9, 19.
I also allowed Masui’s criminal motion in Criminal Motion No 36 of 2019 to adduce further evidence in the form of two versions of an email from Masui to Koh dated 10 February 2004, an affidavit from a forensic consultant in respect of the email and the original charges against him dated 25 February 2015.
Foot Note 2
Certificate of Result of Criminal Motion 36 of 2019 dated 26 July 2019; Certified Transcript dated 26 July 2019 at p 3, lines 3 – 6 and p 13, lines 2 – 3; Masui’s Affidavit in Support of Criminal Motion dated 16 July 2019 at para 5.
9 On 24 February 2020, after hearing the parties’ submissions and going through the evidence in substantial detail, I upheld the DJ’s conviction on all 28 charges. However, I amended the gratification quanta stated in the appellants’ C21 from S$102,115 to S$86,275, and C25 from S$137,340 to S$111,211. The total quantum of gratification received by the appellants is thus S$2,009,433.
10 Since the DJ’s decision on 19 September 2018, the law on sentencing for corruption offences has developed rapidly. Two new high court decisions on this general subject were published by the time the hearing of these appeals was completed: Hoo Sheau Peng J’s decision in PP v Tan Kok Ming Michael and other appeals  5 SLR 926 (“Michael Tan”) which involved the corruption of foreign public officials, and Sundaresh Menon CJ’s decision in Public Prosecutor v Wong Chee Meng and another appeal  SGHC 144 (“Wong Chee Meng”) which laid down a sentencing framework for offences under s 6 read with s 7 of the PCA. I will deal with the impact of these decisions as and when they arise in the course of this judgment.
11 In line with these developments, the parties’ positions have also evolved during these appeal proceedings. To avoid confusion, I have taken the latest positions of the parties to be their final positions and will be referring to them throughout the course of this judgment, unless otherwise stated.
12 Apart from the exact quantum of the gratification received by the appellants, I am in agreement with the DJ’s findings of fact which can be found at – of the Decision. As this judgment focuses on the appeals against sentence, I shall only reproduce the salient facts as are necessary for an appreciation of the issues on sentence. I will also explain my decision to amend C21 and C25, and Ishibe’s new argument at the end of this section (see  onwards).
Background facts relating to the conviction
13 At the material time, the appellants worked as employees of Nissho Iwai Corporation (“Nissho Japan”), and following a merger between Nissho Japan and another company in April 2004, as employees of Sojitz Corporation (“Sojitz Japan”).
Foot Note 3
Prosecution’s Submissions dated 16 July 2019 (“DPP Subs 1”) at para 7.
At various points in their careers with the Japan Company, the appellants were seconded to Singapore to work for the wholly owned Singapore subsidiary of Nissho Japan, namely, Nissho Iwai International (Singapore) Ltd (“Nissho Singapore”). Following the abovementioned merger in April 2004, Nissho Singapore was renamed Sojitz Asia Pte Ltd (“Sojitz Singapore”).
Foot Note 4
Record of Proceedings for MA 9178/2018/01 and MA 9179/2018/01 (“ROP”) at p 917, lines 8 – 12.
For ease of reference, Nissho Japan and Sojitz Japan (of which Nissho Japan became a part of after the merger) will be referred to collectively as the “Japan Company” if the temporal dimension is not important; and Nissho Singapore and Sojitz Singapore (the renamed entity after the merger) will be referred to as the “Singapore Company”. At all times, the appellants were agents of the Singapore Company and Japan Company.
14 The Japan Company is a trading company dealing in various commodities.
Foot Note 5
Masui’s Submissions dated 16 July 2019 (“Masui’s Subs 1”) at para 4.
Two of the products traded overseas by the Japan Company through its overseas subsidiary, ie, the Singapore Company, are edible and industrial wheat flour, the manufacturer and supplier of which is Nippon Flour Mills Co Ltd. (“Nippon Flour Mills”).
Foot Note 6
Masui’s Subs 1 at paras 5 – 6.
Nippon Flour Mills would appoint its distribution agent for edible and industrial flour through the Singapore Company.
Foot Note 7
Ishibe’s Submissions dated 16 July 2019 (“Ishibe’s Subs 1”) at para 17(b).
15 Koh was the sole proprietor of Chia Lee & Co (“Chia Lee”), a longstanding distributor of edible flour for the Singapore Company. From 1978 to 2002, Chia Lee was the sole distributor of only edible flour for Nippon Flour Mills (through Nissho Japan) in Singapore.
Foot Note 8
ROP at p 290, lines 13 – 16; ROP at p 829, lines 8 – 19.
16 Both appellants held senior roles in the Japan Company and Singapore Company. Masui started work for Nissho Japan in 1987 and progressed up the ranks. In April 2002, he was seconded to Singapore and was subsequently entrusted with the role of General Manager of Nissho Singapore’s foodstuffs department in January 2004. He left the Singapore office in February 2005. After his return to Japan, he was promoted to General Manager of Sojitz Japan’s foodstuffs department from April 2005 to September 2007.
Foot Note 9
ROP at p 94, line 7 to p 96, line 4; ROP at pp 1542 – 1543 (Exhibit P4-T: Masui’s Resume).
There, he was responsible for the flour business in Japan and oversaw the flour business globally.
Foot Note 10
ROP at p 103, line 22 to p 104, line 3.
Ishibe joined Nissho Japan in 1989. In October 2004, he was promoted to Manager of Sojitz Japan’s foodstuffs department.
Foot Note 11
ROP at p 92, line 4 to p 93, line 12; ROP at pp 1539 – 1540 (Exhibit P3T: Ishibe’s Resume).
Ishibe was responsible for, inter alia, the sale of flour to the Singapore Company from the Japan Company
Foot Note 12
ROP at p 352, lines 3 – 13
and thus signed off on various flour packing lists.
Foot Note 13
ROP at pp 2820, 2829, 2839 (Examples of packing lists).
17 In the course of their employment, the appellants were in charge of setting the selling price of the edible flour, informing Koh (who was trading as Chia Lee) of the market price and negotiating with him in relation to the edible flour business.
Foot Note 14
ROP at p 289, line 18 to p 290, line 12.
18 Prior to 2002, the industrial flour distributor for Nippon Flour Mills was a company called Sin Heng Chan.
Foot Note 15
ROP at p 829, lines 20 – 24; ROP at p 934, line 16 to p 935, line 4.
When Sin Heng Chan faced severe financial difficulties, Nissho Singapore searched for an alternative industrial flour distributor.
Foot Note 16
ROP at p 941, line 20 to p 942, line 7; ROP at p 182, lines 13 – 21.
19 Sometime in 2002, the appellants approached Koh and asked him for a “favour”. Specifically, they wanted Koh (and by extension, Chia Lee) to enter the industrial flour business to sell industrial flour.
20 The appellants devised a scheme called the “profit-sharing arrangement” which pertained solely to industrial flour. At that time, the expected profits from the industrial flour business was US$23 per metric ton of industrial flour. Koh would receive US$3 per metric ton while the remaining US$20 would be passed to Masui who would then split it equally with Ishibe.
Foot Note 17
ROP at p 291, lines 10 – 21; DPP Subs 1 at para 9; Ishibe Subs 1 at paras 17(i) – (j).
The appellants agreed with each other that they would split the received moneys equally.
Foot Note 18
Ishibe’s Subs 1 at para 17(j).
The appellants claimed that their role was to find customers for industrial flour and negotiate with them. Meanwhile, Koh would handle the administrative paperwork,
Foot Note 19
Masui’s Subs 1 at para 45.
such as presenting bills of lading to the customers and collecting payments from them.
Foot Note 20
Ishibe’s Subs 1 at paras 61 – 62; Masui’s Subs 1 at para 78; ROP at p 297, lines 1 – 23.
21 Koh agreed and Chia Lee was subsequently appointed to replace Sin Heng Chan as the industrial flour distributor.
Foot Note 21
Masui’s Subs 1 at para 8.
This was in spite of the fact that in 2002, Koh had no expertise in the industrial flour business, which operated in a markedly different fashion from the edible flour business.
Foot Note 22
ROP at p 292, lines 7 –15; ROP at p 674, line 25 to p 675, line 2.
22 The profit-sharing arrangement began in 2002 and lasted till 2007. The last payment from Koh to the appellants was made on 26 November 2007.
Foot Note 23
ROP at pp 44, 72 (Proceeded C28 for Masui and Ishibe respectively).
Pursuant to this scheme, the appellants accepted numerous payments from Koh.
Foot Note 24
Masui’s Subs 1 at paras 9 and 46; Ishibe Subs 1 at paras 17(j), 27 – 28.
From February 2004 to 26 November 2007, there were 28 distinct payments which formed the basis of Masui and Ishibe’s 28 charges under s 6(a) read with s 29(a) of the PCA. The total quantum of gratification received was reduced from S$2,051,402 to S$2,009,433 (after I amended the amount of gratification received in respect of the two charges referred to earlier at ).
23 The profit-sharing arrangement was a corrupt scheme devised by the appellants to extract bribes (ie, gratifications) from Koh in return for them continuing to “support and protect” Chia Lee’s edibleflour business.
Foot Note 25
DPP Subs 1 at para 3.
24 Although Koh remained in the profit-sharing arrangement for close to six years, this was not by choice. The appellants knew that Koh cherished Chia Lee’s role as the sole distributor of edible flour for Nippon Flour Mills in Singapore. Koh depended on it for his livelihood, but more than that, it represented the sum of his life’s work. In Koh’s words:
Foot Note 26
ROP at p 807, lines 9 – 15.
At that time, 2002, it’s more than 20-over years. That is all my work, my very hard work. How many 20 years in a lifetime? All these buyers of edible flour, I source it [sic]myself. If I lost this one, I lost to earn a living [sic], this business that is very important to me, especially edible flour.
25 The appellants used Chia Lee’s edible flour sole distributorship as both carrot and stick to ensure Koh’s cooperation in the profit-sharing arrangement. In essence, as long as Koh remained in the profit-sharing arrangement, the appellants would safeguard Chia Lee’s position as the sole distributor of edibleflour in Singapore.
Foot Note 27
ROP at p 292, line 24 to p 293, line 8.
While the appellants were careful to mask their intention by calling it a “favour”, Koh knew that if he did not comply with their demands, the appellants might introduce new competitors who would sell edible flour in the Singapore market, hence threatening Chia Lee’s dominant market position and negatively affecting its business.
Foot Note 28
ROP at p 377, line 13 to p 378, line 21.
When Koh sought to withdraw from the arrangement, the appellants explicitly told him that if he did not wish to continue, “[they] may change other people to do that”, and that they “will not continue to support and protect [Koh] anymore” in respect of the edible flour business.
Foot Note 29
ROP at p 300, line 17 to p 301, line 7.
These were threats that Koh took very seriously.
26 I list a few salient features of the “profit-sharing arrangement”.
(a) At trial, Koh’s consistent evidence was that the profit-sharing arrangement was not profitable for him. Even in 2002, his share of the profits (ie, at a fixed rate of US$3 per metric ton) barely covered the costs of doing the industrial flour business.
Foot Note 30
ROP at p 298, lines 8 – 14.
(b) Over the years, the profits from the industrial flour business increased from US$23 per metric ton to US$40, US$50 and even US$60 per metric ton.
Foot Note 31
ROP at p 299, lines 10 – 15.
Ironically, even though Chia Lee was the company handling the business, Koh’s share of the profits remained constant (ie, at US$3 per metric ton). The benefit of any increases in profits accrued solely to the appellants. Worse still, Koh estimated that as the industrial flour business flourished, the tax liability on the industrial flour business which fell directly on him and Chia Lee, would increase correspondingly as well.
Foot Note 32
ROP at p 300, lines 4 – 16.
(c) Koh was unable to extricate himself from the scheme,
Foot Note 33
ROP at p 302, lines 7 – 10.
even when it became harmful to Chia Lee, and by extension, Koh who depended on it for his livelihood.
Foot Note 34
ROP at p 807, lines 13 – 15.
When he voiced his concerns about the scheme, the appellants threatened him with the withdrawal of their support and protection for the edible flour business.
Foot Note 35
ROP at p 300, lines 17 – 25.
As a result, Koh felt that he had no choice but to continue his payments to the appellants even when Chia Lee faced grave financial difficulties in 2005.
Foot Note 36
ROP at p 316, line 23 to p 317, line 5; ROP at p 377 line 8 - p 378, line 21.
27 By June 2005, it was clear to the appellants that Chia Lee was in parlous financial straits.
Foot Note 37
ROP p 1280, lines 11 – 13.
On 15 June 2005, the appellants transferred US$240,000 to Chia Lee.
Foot Note 38
DPP Subs 1 at paras 55 and 57.
The payment was meant to keep the struggling Chia Lee afloat so that their corrupt scheme could continue.
Foot Note 39
DPP Subs 1 at para 55.
28 Nonetheless, Koh continued to make payments to the appellants up till 26 November 2007.
Foot Note 40
ROP at p 473, lines 4 – 7.
After November 2007, the global financial crisis negatively hit the industrial flour industry.
Foot Note 41
ROP at p 471, line 16 to p 472, line 9.
Koh had no more money to pay the appellants and the profit-sharing arrangement thus came to an end.
Foot Note 42
ROP at p 472, lines 6 – 9.
29 The profit-sharing arrangement was discovered by Sojitz Japan around end 2009.
Foot Note 43
Masui’s Subs 1 at para 149.
Subsequently, on 26 February 2010, Sojitz Japan terminated the appellants’ employment.
Foot Note 44
ROP at p 5303 (Exhibit D15 – T, Ishibe’s Notice of Disciplinary Action); ROP at p 5307 (Exhibit D17 – T, Masui’s Notice of Disciplinary Action).
30 Chia Lee continued being the sole distributor of edible flour for Nippon Flour Mills until May 2015 when it ceased operations.
Foot Note 45
Ishibe’s Subs 1 at para 17(a).
My decision on conviction
31 In this section, I will explain my decision to amend C21 and C25 and deal with Ishibe’s new argument on appeal that he had only received US$50,000 from the profit-sharing arrangement.
(1) The quantum of gratification received by the appellants
32 I begin by laying out how the bribes were quantified.
33 The DJ found that the appellants had received payments totalling S$2,051,402 from Koh. This finding was based on photocopies of Koh’s contemporaneous handwritten notes which listed various amounts earned from the distribution of industrial flour and the sums paid to the appellants (Decision at –).
34 On appeal, the appellants dispute the exact sums received from Koh on the 28 occasions that gave rise to their respective 28 charges, arguing that the documentary records relied upon by the Prosecution to prove these sums were incomplete and unreliable.
Foot Note 46
Ishibe’s Subs 1 at para 125.
35 I should explain that the Prosecution framed the 28 charges against each appellant with reference to several photocopied documents and Koh’s evidence.
Foot Note 47
Prosecution’s Reply Submissions dated 5 November 2019 (“DPP Subs 2”) at paras 61 and 71.
The sequence of events as narrated by Koh is as follows:
Foot Note 48
Masui’s Subs 1 at para 211.
(a) Koh would make contemporaneous handwritten records of the amounts earned from the distribution of the industrial flour (“Handwritten Notes”). These notes included his calculations of the amounts owed to the appellants and the relevant USD/SGD exchange rates at the various points in time.
(b) Koh would then photocopy the original Handwritten Notes using the “photocopy function” on his facsimile machine which then printed them out on thermal paper (ie, exhibit P24). I refer to these as the “Thermal Paper Records”.
(c) Koh would then hand over the amounts owed to Masui along with the original copy of his Handwritten Notes.
(d) Subsequently further copies were made of these Thermal Paper Records (ie, exhibits P21, P22, P23 and P26). I refer to these as the “Photocopied Records”.
36 Counsel for Masui, Mr Nicolas Tang, embarked upon an extensive and meticulous analysis of the Photocopied Records and argued that they do not prove the amounts of gratification received by the appellants beyond a reasonable doubt. His most convincing reasons were as follows:
(a) The Photocopied Records were not accurate reproductions of the Thermal Paper Records. Pages were missing from the Photocopied Records, which also included additional markings.
Foot Note 49
Masui’s Subs 1 at para 213 – 217.
(b) The Photocopied Records could not be relied upon to prove that the appellants received an aggregate sum of S$2,051,402. Koh testified that he would refer to the invoices from the Singapore Company to Chia Lee to determine the buying price of industrial flour, and to the invoices issued by Chia Lee to the buyer to determine the selling price. While some of the Photocopied Records could be verified by referring to those invoices, not all the relevant invoices had been adduced during the trial. In respect of the Photocopied Records in exhibit P26, there were no invoices nor any calculations for the industrial flour transactions from 25 March 2006 to 26 November 2007.
Foot Note 50
Masui’s Subs 1 at paras 218 – 226; Masui’s Further Submissions dated 15 October 2019 (Masui’s Subs 2) at para 54(b).
(c) The invoices from Chia Lee and the Singapore Company were unreliable. Koh testified that the invoices from the Singapore Company (ie, to sell Chia Lee the industrial flour) would always be generated earlier than the invoices issued by Chia Lee (ie, to the buyers who purchased the shipment of industrial flour from Chia Lee).
Foot Note 51
ROP at p 715, lines 8 – 12.
Koh agreed that the dates on the original handwritten notes would be the dates on which he received payment from Chia Lee’s buyers for the industrial flour. However, the Photocopied Records in P21, P22 and P23 sometimes predated the dates reflected on those invoices.
Foot Note 52
Masui’s Subs 1 at paras 227 – 233; Masui’s Subs 2 at para 54(d).
(d) Four of the Photocopied Records were visually unclear.
Foot Note 53
Masui’s Subs 1 at para 234; Masui’s Subs 2 at para 54(a).
37 To corroborate the sums stated in the Photocopied Records, the Prosecution adduced OCBC bank deposit slips to show that Koh deposited sums into Masui’s OCBC bank account, and bank account statements from Chia Lee’s UOB account to show that Koh withdrew sums of cash from Chia Lee’s UOB account to pay Masui. In respect of this, Mr Tang pointed out that the OCBC deposit slips only covered two payments from Koh to Masui on 7 April 2006 and 26 November 2007.
Foot Note 54
Masui’s Subs 1 at para 239.
38 Mr Tang also argued that there were gaps in Koh’s memory as he was also unable to concretely identify which withdrawals from Chia Lee’s UOB bank accounts were for the purpose of paying Masui, as reflected in the Photocopied Records. Koh admitted that he would sometimes withdraw amounts in excess of the sums that had to be paid to Masui for use as petty cash and to pay his workers. He thus could not fully remember the purposes for each withdrawal made.
Foot Note 55
Masui’s Subs 1 at paras 243 – 249; Masui’s Subs 2 at paras 54(f) and (g).
It was also strange that Koh testified that the payments which were the subject of C12 to C15 were “collected by Mr Masui” in cash when Masui was not in Singapore during the relevant period.
Foot Note 56
Masui’s Subs 1 at para 251; Masui’s Subs 2 at para 54(c).
39 In the light of the arguments raised by Mr Tang, I directed the Prosecution to prepare a table of evidence (“Table of Evidence”) and allowed parties to file supplementary submissions in respect of this. Subsequently, the Prosecution filed two further table of profits (“the Tables of Profits”).
(a) The Table of Evidence summarised the testimonies of Koh, Masui and Ishibe and listed the invoices and OCBC deposit slips which were available to corroborate the stated quantum of gratification in each charge, along with the relevant references to the Records of Appeal.
(b) The first Table of Profits concerned C1 to C18 and provided a breakdown per charge of the amount of gratification that could be corroborated by reference to Chia Lee’s invoices, the Singapore Company’s invoices, both types of invoices and any further additions or deductions that ought to be made to the various sums. This table also included an additional column listing sums for which there was no corroborating documentary evidence.
(c) The second Table of Profits concerned C19 to C28 and listed the amounts stated, the amounts withdrawn from Chia Lee’s bank account or deposited into Masui’s bank account as reflected in the bank statements and Koh’s explanation in respect of each charge.
40 On 24 February 2020, after reviewing the parties’ submissions and the available evidence in substantial detail, I found that the Prosecution had proved the amounts of gratification received by the appellants from Koh beyond a reasonable doubt, except for C21 and C25 which were respectively amended to reflect a lower amount of gratification received.
Foot Note 57
Minute Sheet dated 24 February 2020.
The appellants did not object to the amendment of C21 and C25.
(A) The quantum of gratification in the 28 charges generally
41 I agreed with the DJ that Koh gave a cogent and credible account of how the Handwritten Notes and the Photocopied Records came to be created, which was corroborated by objective evidence.
Foot Note 58
DPP Subs 1 at para 23.
Koh was able to explain the process of creating each Handwritten Note (see above at ).
Foot Note 59
DPP Subs 2 at para 62.
Crucially, Koh was also able to explain the contents within each Handwritten Note as reflected in the Photocopied Records. The Photocopied Records can be split into two groups – those with calculations in P21, P22 and P23 (which reflected the bribe quanta in C1 to C18) and those without calculations in P26 (which reflected the bribe quanta in C19 to C28).
42 First, Koh was able to explain the calculations within each of the Photocopied Records in P21, P22 and P23 in extensive detail. I use the first Photocopied Record (ie, the photocopy of the first Handwritten Note from which the bribe quantum in C1 was derived) as an illustration of this. There were four groups of transactions totaling S$71,773 (ie, the bribe quantum stated in C1). Koh explained that:
Foot Note 60
ROP at p 337, line 6 to p 340, line 14.
[Koh]: The date is the date that I collected the payment from the industrial flour buyer and then, for example, number 1, "W" is OTW brand, one container, and 143 is the selling price to the buyer, 118 is the buying price from Sojitz and there is a profit of $25, and I less out $3. The profit is $22 times one container, 18 metric tons, so it's US$396.
[DPP]: That's for the first transaction.
[DPP]: We can see on this page, on the left-hand side, you have four transactions and then you have a final number at the bottom. Can you tell us how you come to this final number at the bottom? Do you need a calculator, Mr Koh?
[Koh]: Yes. This is the total of the four transactions.
[DPP]: Again on the left-hand side of the page, the second-half of the page, we see five transactions…Then a total number at the bottom. Can you explain.
[Koh]: Total -- this was for the -- I'm calculating this. It should be the total of these five transactions. Yes, the total is 20,970, the five transactions amount.
[DPP]: Then we go to the right-hand side of the page, the top half. There are three transactions and a total number… Can you explain?
[Koh]: The three total amount is 9,810, three transactions total amount.
[DPP]: On the right-hand side of the page, the bottom half, there are five transactions with a total number at the bottom.
[Koh]: The total amount is US$7,830. That is the five transactions total amount.
[DPP]: Then we see all these four total amounts that you have identified. You then drew arrows towards bottom left-hand side of the page and then you have another number at the bottom. Can you explain that?
[Koh]: That is the total amount of the three lots of transactions there.
[DPP]: Is it three sets of transactions?
[Koh]: Three, plus the 2,000 -- it should be four. The first one is 20,970, the second one is 9,810. The third one is 7,830 and the last one is 3,009.
[Koh]: … The total is 42,570.
[DPP]: Then we see the add sign and then 1.686?
[Koh]: 1.686 is, at that time, the foreign exchange rate at UOB Bank.
[DPP]: What foreign exchange rate?
[Koh]: US dollar.
[DPP]: What is the US dollar amount?
[Koh]: The US dollar amount is US$42,570.
[DPP]: You are saying you take US$42,570, you multiply by the exchange rate at the time, and you get?
[emphasis added in bold]
43 The sum of S$71,773 was the bribe quantum reflected in C1. As could be seen from the bolded words, the calculation of this sum was in accordance with the profit-sharing arrangement. The same process was repeated for each of the other 17 charges.
Foot Note 61
See for example, ROP at p 360, line 10 to p 365, line 24 (C2); ROP at p 449, line 5 to p 451, line 2 (C18).
During cross-examination, Masui agreed that the method of calculation in each Photocopied Record correctly reflected the profit-sharing arrangement between Koh and the appellants.
Foot Note 62
ROP at p 1199, lines 11 – 16; DPP Subs 2 at para 63.
44 For C1 to C18, Koh’s testimony and the Photocopied Records could be corroborated partially by a mix of invoices from Chia Lee and the Singapore Company. Using the Table of Evidence, the Prosecution pointed out that a total of 306 transactions made up the 18 payments to the appellants (ie, the first 18 charges). Of these 306 transactions, 83% of them were corroborated by at least one invoice (ie, 255 transactions) and 51% of them were corroborated by both Chia Lee and Singapore Company’s invoices (ie, 155 transactions).
Foot Note 63
DPP Subs 2 at para 68.
I agreed with the Prosecution that taken as a whole, there was a high degree of corroboration.
45 Second, in respect of the Photocopied Record in P26 (ie, corresponding to C19 to C28), Koh provided a cogent explanation for why there were no calculations but simply a list of sums passed to the Appellants: in June 2005, Chia Lee was facing grave financial difficulties and Koh simply paid the appellants whatever he could afford.
Foot Note 64
DPP Subs 2 at para 63; DPP Subs 1 at para 23(b).
As recognised by Mr Tang (see above at ), two of the sums listed in P26 were corroborated by the OCBC bank deposit slips which showed deposits into Masui’s bank account on 7 April 2006 and 26 November 2007 (exhibit P27). These two deposits of S$13,750 and S$82,900 were the same amounts reflected in the C19 and C28.
46 In respect of the Defence’s argument that there were no bank records from Chia Lee prior to 2005, Koh explained that the bank statements might have been thrown away or lost when he shifted his warehouse.
Foot Note 65
ROP at pp 474, line 20 to p 475, line 4.
For C11 to C28 (excluding C19), Chia Lee’s bank records were available and Koh was able to identify various withdrawals which corresponded to some of the payments made to Masui.
Foot Note 66
Table of Evidence at pp 5 – 19.
47 While I noted the Defence’s argument that Koh was at times confused and unable to recall details about specific withdrawals in Chia Lee’s bank records, this was unsurprising given the voluminous number of transactions which made up 28 different payments to the appellants and the fact that more than 10 years had passed since the last payment and the first day of trial. Furthermore, as the Prosecution rightly pointed out, Koh did not rely solely on his memory when he identified various withdrawals in the bank statements, but also referred to the exchange rates stated in the bank statements which tallied with what he had recorded in the Handwritten Notes.
Foot Note 67
DPP Subs 2 at para 68; ROP at p 841, lines 5 – 13.
48 Ishibe’s counsel, Mr Sunil Sudheesan, submitted that the charges were not made out because the Prosecution did not adduce a complete set of documents. A complete set would mean: (a) signed invoices from Chia Lee; (b) invoices from the Japan Company; (c) bank records showing the withdrawal of moneys by Koh corresponding to each charge in terms of date and amount; and (d) Photocopied Records or Handwritten Notes with legible writing inclusive of dates that corresponded to the withdrawals and/or invoices.
Foot Note 68
DPP Subs 2 at para 57; Ishibe’s Further Submissions dated 15 October 2019 (“Ishibe’s Subs 2”) at para 7.
49 I disagreed. The Prosecution must prove the quantum of gratification in each of the 28 charges beyond a reasonable doubt, but this did not mean that the Prosecution had to produce a perfect set of evidence to prove it beyond all doubt. It must be appreciated that the invoices, bank statements and deposit slips served a corroborative purpose. The key evidence relied upon by the Prosecution was the Photocopied Records and Koh’s explanation in respect of them (see above at ).
Foot Note 69
DPP Subs 2 at para 60.
50 It will be obvious from the foregoing paragraphs that the mix of objective records adduced by the Prosecution was capable of corroborating almost all the values stated in the Photocopied Records such that they collectively strengthened their reliability.
Foot Note 70
DPP Subs 2 at para 67.
51 Furthermore, as observed by the DJ, Koh was an honest witness, “readily admitting when he was unable to recall, rather than fudge.” (Decision at ). This gave his evidence (which was already corroborated) a ring of truth and reinforced his credibility. In contrast, Masui, the direct recipient of those moneys, was not a credible witness (Decision at –). He feigned ignorance about the amounts received from Koh and claimed that he did not keep records of the payments. He also asserted that he had never seen or received the Handwritten Notes from Koh. When questioned on how he knew that Koh would not short-change the appellants, Masui blithely claimed that he did not check. This seemed illogical in the light of (a) Masui’s concession that it was important to the appellants that Koh was keeping to his part of the agreement, and (b) the appellants’ joint defence at trial that they had taken joint responsibility for the risks of the industrial flour business and would use the payments to them to cover these risks, if needed.
Foot Note 71
DPP Subs 1 at para 25.
52 On the whole, I accepted that the Prosecution had proved the values of the bribe quanta in the individual charges (except C21 and C25) beyond a reasonable doubt.
(I) The amended C21 and C25
53 C21 stated that Masui received S$102,115 from Koh on or about 12 July 2006.
Foot Note 72
ROP at p 37.
This sum was reflected as US$65,000 in the Photocopied Record in exhibit P26 (USD/SGD exchange rate of 1/1.571 per the Photocopied Record).
Foot Note 73
ROP at p 4144.
The only corroborative evidence in respect of this was Chia Lee’s bank account statements from which Koh identified four withdrawals totalling S$101,734.
Foot Note 74
ROP at p 509, line 7 to p 510, line 18.
Koh also stated that he had approximately S$400 on hand which he used to make up the sum of S$102,115.
Foot Note 75
ROP at p 510, lines 15 – 18.
However, Chia Lee’s bank account statement stated that one of the four withdrawals was made on 17 July 2006, five days after the purported payment in C21.
Foot Note 76
ROP at p 4181.
This withdrawal was of US$10,000 (ie, S$15,840).
Foot Note 77
ROP at p 4181; Table of Profits for C19 – 28 at p 1.
54 C25 stated that Koh passed S$137,340 to Masui on or about 15February 2007.
Foot Note 78
ROP at p 41.
This sum was reflected as US$90,000 in the Photocopied Record in exhibit P26 (USD/SGD exchange rate of 1/1.576 as stated in the Photocopied Record).
Foot Note 79
ROP at p 4145.
However, according to the Photocopied Record, the US$90,000 was transferred on 8February 2007.
Foot Note 80
ROP at 4145; Table of Profiles for C19 – 28 at p 2.
Again, the only corroborative evidence was Chia Lee’s bank account statements from which Koh identified four withdrawals totalling $145,237 and stated that he only paid $137,340 and had either kept the remainder or deposited it in the SGD account for other uses.
Foot Note 81
ROP at p 515, lines 2 – 22.
Crucially, the bank statement shows that one of the four withdrawals was made on 13 February 2007, five days after the purported payment in the Photocopied Record. This withdrawal was of US$17,000 (ie, $26,129).
Foot Note 82
ROP at p 4194; Table of Profits for C19 – 28 at p 2.
55 Given that the two abovementioned withdrawals occurred after the date reflected in either the charge or the documentary evidence, I was unable to accept that they should be factored into the gratification sums in the charges. I thus deducted the two withdrawals from the respective gratification quantum in C21 and C25. This gave sums of $86,275 and $111,211 respectively.
56 The total gratification quantum was thus reduced from $2,051,402 to $2,009,433. A breakdown of the total gratification quantum is set out at  below.
(2) Ishibe’s claimed receipt of only US$50,000 from Masui
57 During the trial, it was common ground between the appellants that Koh always passed the money directly to Masui who would then split it equally with Ishibe.
58 On appeal, Ishibe advanced a new position. He claimed that while there was an agreement to split the moneys equally, he had no knowledge of the true sum passed to Masui and had in fact only received US$50,000.
Foot Note 83
Ishibe’s Subs 1 at para 28.
As proof of this, Ishibe pointed to his long statements given to officers from the Corrupt Practices Investigation Bureau (“CPIB”) on 12 March 2012 and 29 July 2013, and Masui’s statement to CPIB officers on 12 March 2013 that Masui passed “$50,000 to Ishibe”.
Foot Note 84
Ishibe’s Subs 1 at para 28; Ishibe’s Further Submissions dated 11 August 2020 (“Ishibe’s Subs 3) at para 7.
Ishibe added that there was no objective evidence of the exact sum that Ishibe had received from Masui.
Foot Note 85
Ishibe’s Subs 1 at paras 133 – 134.
59 I did not accept this argument. During the trial below, the appellants had run their defences on the basis that they had split the moneys equally, as per their agreement. Interestingly, when the sum of US$50,000 was brought up by the Prosecution, this was in the context of exploring inconsistencies between Ishibe’s testimony in court and the version of events given in his CPIB statements. Ishibe’s response was telling and worth reproducing in full:
Foot Note 86
ROP at p 1042, line 13 to p 1043, line 10.
[DPP]: I'd like you to look at the statement that I've already tendered, the statement that you gave to the CPIB on 12 March 2012, at paragraphs 20 and 21. At paragraph 20, you state that you received only $50,000 from Mr Masui.
[DPP]: and at paragraph 21 you say that whatever money you received: "... the total amount of USD50,000 was used by me for entertainment and transport expenses for my work done for Sojitz Corporation in Japan." Isn't this materially inconsistent with your evidence in court that you kept some of the money for covering the losses?
[Ishibe]: Yes, there is a difference.
[DPP]: It's different. Which one is the truth? The one that you told to the CPIB or the one that you are saying in court today?
[Ishibe]: First of all, the amount of US$50,000, there is no record, so this is not accurate number – accurate figure …
[emphasis added in bold]
60 A few minutes later, Ishibe said that the sum of US$50,000 was a net figure that he was left with after covering the losses from the profit-sharing arrangement, but added that “[i]f you ask me that this amount is [a] hundred per cent correct, I am not confident”.
Foot Note 87
ROP at p 1045, line 23 to p 1046, line 4.
61 Furthermore, it was stated in their joint mitigation plea that “[i]t is also undisputed that Ishibe and Masui shared whatever money received from Koh equally with each other”.
Foot Note 88
ROP at p 5400, para 23.
62 In Mohd Suief bin Ismail v Public Prosecutor  2 SLR 893, the Court of Appeal clarified that an accused person is, strictly speaking, not precluded from relying upon a defence that is raised for the first time on appeal. However, the appellate court will have regard only to the evidence which had been led at the trial itself to ascertain whether that defence was reasonably available on the evidence before the court at the trial (at ). Accordingly, the “defence” that Ishibe only received US$50,000 was not available to Ishibe on appeal as it was unsupported (and in fact, contradicted) by his own testimony and position at trial.
63 On the face of the evidence, I found no reason to disagree with the finding of the DJ that the appellants split the bribe moneys equally. I will return to this point later for my decision on the appropriate penalty order.
The DJ’s decision on sentence
64 The DJ found it appropriate to adopt a sentencing framework for corruption offences under ss 5 and 6 of the PCA (Decision at ) and adopted a sentencing band approach modelled after the Court of Appeal’s decision in Ng Kean Meng Terence v Public Prosecutor  2 SLR 449 (“Terence Ng”) (Decision at ). This comprised four broad steps (Decision at  – ):
(a) Step 1: Identify the significant offence-specific factors, such as the triggering of the public service rationale, premeditation, and abuse of trust and confidence.
(b) Step 2: Classify the offence into one of the four sentencing bands based on the number of significant offence-specific factors present, and their severity, to derive the indicative starting point sentence within the relevant sentencing band. The sentencing bands set out by the DJ were as follows (Decision at ):
Less than 2
Up to 1 year’s imprisonment
2 or more
1 to 3 years’ imprisonment
4 or more
3 to 5 years’ imprisonment
6 or more
(c) Step 3: Adjust the indicative starting point sentence to account for offender-specific factors, such as a plea of guilt or criminal antecedents.
(d) Step 4: Adjust the sentence to take into account the totality principle where an offender faced multiple charges, to ensure that the global sentence was not crushing.
65 The DJ referred to the decision of Menon CJ in Public Prosecutor v Syed Mostofa Romel  3 SLR 1166 (“Romel”), which dealt with private sector corruption. By way of background, Menon CJ identified, for the purposes of sentencing, three categories of cases concerning three different ways by which private sector corruption could manifest (at ). In the first category, the receiving party confers a benefit on the paying party, without regard to whether the paying party ought properly to have received the benefit. In the second category, the receiving party forbears from doing what he was duty bound to do, and thus confers a benefit on the paying party. In the third category, the receiving party forbears from inflicting harm on the paying party, even though there may be no lawful basis for such harm to be inflicted. This analytical tool devised by Menon CJ is commonly known, and shall be referred to in this judgment, as the “Romel categories” (for further elaboration, see [A.10] below). Consequently, when I am referring to the Romel categories, I will use the terminology “Romel category 1/2/3”, as the case may be. The DJ found that the appellant’s conduct fell within Romel category 3 as their corrupt scheme interfered with, and deprived Koh of, his legitimate rights. The DJ identified five offence-specific factors (Decision at –): (a) high quantum of gratification; (b) sustained period of offending; (c) heightened culpability of Masui and Ishibe as the masterminds behind the corrupt transactions; (d) significant abuse of trust and authority; and (e) premeditation.
66 The DJ imposed the following starting point sentences (Decision at ):
(a) 12 months’ imprisonment for charges where the amount of gratification was less than $30,000;
(b) at least 12 months’ imprisonment for charges where the amount of gratification ranged from $30,000 to $50,000;
(c) at least 15 months’ imprisonment for charges where the amount of gratification was more than $50,000 to $100,000;
(d) at least 18 months’ imprisonment for charges where the amount of gratification was more than $100,000.
67 There were no offender-specific factors which warranted a downward adjustment of the individual starting point sentences (Decision at ). After considering the totality principle, the DJ ordered the sentences for four charges C2, C6, C25 and C27 to run consecutively for both appellants, resulting in a sentence of 66 months’ imprisonment (Decision at –). As the total gratification involved was $2,051,402, he also ordered Masui and Ishibe to each pay a penalty of $1,025,701 (in-default six months’ imprisonment) under s 13 of the PCA.
Parties’ cases on the appeal against sentence
68 The Prosecution puts forth a five-step sentencing framework modelled after the two-stage, five-step framework adopted in the case of Logachev Vladislav v Public Prosecutor  4 SLR 609 (“Logachev”) (as developed in Wong Chee Meng( supra)) which applies to cases under ss 6(a) and (b) of the PCA (“Logachevframework”). Applying its proposed framework, it submits that the sentences and penalties imposed on the appellants are eminently justified on the facts.
Foot Note 89
Prosecution’s Submissions dated 11 August 2020 (“DPP Subs 3”) at paras 4 – 5.
69 Masui argues against the imposition of a sentencing framework for corruption offences under s 5 or s 6 of the PCA.
Foot Note 90
Masui Submissions dated 11 August 2020 (“Masui’s Subs 3”) at para 2(a).
He submits that his sentence is manifestly excessive as the DJ had misapplied the sentencing band framework by double counting the offence-specific factors and failing to account for offender-specific factors.
Foot Note 91
Masui’s Subs 1 at para 319(c).
An appropriate sentence would be one that is less than the 98-week imprisonment term imposed on the offender in Public Prosecutor v Leng Kah Poh  4 SLR 1264 (“Leng Kah Poh”) who had solicited and received bribes worth $2,341,508.
Foot Note 92
Masui’s Subs 3 at paras 78, 81.
Masui avers that the penalty imposed by the DJ is erroneous and ought not to exceed $500,525.23 as certain sums ought to be deducted (see  below).
Foot Note 93
Masui’s Subs 3 at para 112.
70 Ishibe agrees with Masui. Having regard to the precedents, Ishibe argues that a fair sentence would be 12 months’ imprisonment (approximately 52 weeks).
Foot Note 94
Ishibe Subs 1 at para 157; Ishibe Subs 3 at para 14.
In respect of the penalty, Ishibe was originally aligned with Masui in seeking the deduction of various sums from the penalty.
Foot Note 95
Ishibe Subs 1 at paras 146 – 150.
However, he subsequently argues that the penalty imposed on him should not exceed US$50,000 given that Masui had only passed him US$50,000.
Foot Note 96
Ishibe Subs 3 at para 8.
71 Interestingly, although Ishibe had initially proposed the adoption of a sentencing framework based on the Logachev framework which, save for the way in which the indicative starting sentences were calibrated, appeared to be identical to the Prosecution’s current framework,
Foot Note 97
Ishibe Subs 1 at para 136 – 138.
Ishibe’s counsel indicated orally during the final hearing on 21 August 2020 that Ishibe no longer takes the position that a sentencing framework is necessary at all for corruption offences. I note however that Ishibe’s counsel had previously undertaken a graphical analysis showing how sentences in corruption cases varied according to the value of the bribes in order to illustrate that the sentences imposed by the DJ are manifestly excessive when compared to similar cases.
Summary of issues
72 Bearing the above in mind, the following issues fall for my determination in the appeals against sentence:
(a) First, is it appropriate to develop a sentencing framework for corruption offences under the PCA?
(b) Second, assuming that the first question is answered in the affirmative, what type of framework should be employed and why?
(c) Third, what should the appropriate framework be?
(d) Fourth, applying the framework, what is the appropriate sentence for each appellant?
(e) Fifth, what is the appropriate penalty under s 13 of the PCA?
(f) Sixth, whether this is a case suitable for prospective overruling?
Relevant legal principles
73 Before turning to the specific issues raised, it is useful to make some general observations about corruption offences under ss 6(a) and 6(b) of the PCA which penalise corrupt transactions with agents.
74 The relevant legal provisions are as follows:
Punishment for corrupt transactions with agents
6. If —
(a) any agent corruptly accepts or obtains, or agrees to accept or attempts to obtain, from any person, for himself or for any other person, any gratification as an inducement or reward for doing or forbearing to do, or for having done or forborne to do, any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business;
(b) any person corruptly gives or agrees to give or offers any gratification to any agent as an inducement or reward for doing or forbearing to do, or for having done or forborne to do any act in relation to his principal’s affairs or business, or for showing or forbearing to show favour or disfavour to any person in relation to his principal’s affairs or business; or
he shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a term not exceeding 5 years or to both.
75 Section 6 of the PCA dates back to the original enactment of the PCA, ie, the old Prevention of Corruption Ordinance 1960 (No 39 of 1960). It predates the wider s 5 of the PCA which criminalises corruption generally and was introduced in 1960 as a means of “providing wider powers to combat corruption” (Song Meng Choon Andrew v Public Prosecutor  4 SLR 1090 (“Andrew Song”) at ). Sections 6(a) and 6(b) of the PCA have remained largely unchanged since 1960.
76 There is currently no case in Singapore that sets out a general sentencing framework for the simpliciter offences under ss 6(a) and 6(b) of the PCA. I should clarify that I use the term “sentencing framework” in the narrow sense, ie, a framework that explains how the legislatively mandated sentencing spectrum of imprisonment for a term not exceeding 5 years and/or a fine not exceeding $100,000 ought to be spread out across the myriad fact scenarios that come within the ambit of ss 6(a) and 6(b) of the PCA.
77 At present, our sentencing courts have been guided by the landmark decision of Romel( supra) which laid down the Romel categories. This useful analytical tool has helped our sentencing courts to broadly assess the type and seriousness of corruption disclosed in a case of private sector corruption (see  above).
78 In the absence of a general sentencing framework, our courts have typically approached sentencing in corruption cases under both ss 5 and 6 of the PCA by having regard to past cases which have identified a number of categories and factors pertinent to the sentencing process (see Wong Chee Meng( supra)at  and Michael Tan( supra)at ).
79 From the case law on corruption offences generally (ie, under ss 5, 6 and 7 of the PCA), it can be observed that there are four broad categories of corruption:
(a) Category 1: Corruption in the public sector which involves government servants or officers of public bodies. A custodial sentence is the norm for such cases in the light of the strong public interest in stamping out corruption in the public sector (see Romel at , Wong Chee Meng at ).
(b) Category 2: Corruption in the private sector which engages the public service rationale. For clarity, this refers to the “public interest in preventing a loss of confidence in Singapore’s public administration”. This sentencing principle is presumed to apply in cases of public sector corruption but has been extended to cases where private agents handle public money, supply public services or are involved in government contracts. This category also includes private sector offences that concern regulatory or oversight roles such a marine surveying (see Ang Seng Thor  4 SLR 217 (“Ang Seng Thor”) at [33(c)] citing Lim Teck Chye  2 SLR(R) 525 (“Lim Teck Chye”) at –, and Romel at ). In such cases, a custodial sentence is often the norm (Ang Seng Thor at [33(d)] and Romel at ).
(c) Category 3: Corruption in the private sector which does not engage the public service rationale, ie, private sector agents performing purely commercial functions. I refer to this category as “purely private sector corruption”. While there is no norm in favour of non-custodial sentences in private sector corruption cases, the general trend indicates that where private sector agents performing purely commercial functions are concerned, offences which register a lower level of overall criminal culpability may be dealt with through the imposition of fines. However, our courts have repeatedly stressed that whether or not the custody threshold is breached will depend greatly on the “specific nature of corruption” [emphasis in original] that presents itself on the facts (see Romel at , Michael Tan at ). Examples of cases falling within this category include corruption that results in the loss of confidence in strategic industries such asbunkering or maritime industry (see Ang Seng Thor at , and Heng Tze Yong v Public Prosecutor  5 SLR 576 (“Heng Tze Yong”) at ), the corruption of foreign public officials (see Michael Tan generally and at , ).
(d) Category 4: Corruption cases for which there are established sentencing guidelines. This is an open category that has been included to accommodate any present and future judgments that provide sentencing guidelines tailored to a specific type of fact scenario. At present, the only types of cases falling within this category are: (a) those relating to sports-betting and match-fixing (see Ding Si Yang v Public Prosecutor and another appeal  2 SLR 229 (“Ding Si Yang”); and (b) cases involving offenders prosecuted under s 6 read with s 7 of the PCA (see Wong Chee Meng).
For the avoidance of doubt, these categories are distinct from the “Romel categories” (see  above).
80 Focussing on Category 4, it is pertinent to note that while our courts do typically have regard to precedents when sentencing corrupt offenders, there are in fact only two existing sentencing frameworks for corruption offences.
81 In the recent case of Wong Chee Meng, Menon CJ laid down a sentencing framework which applies solely to aggravated offences under s 6 read with s 7 of the PCA (at ). This framework is modelled after the two-stage, five-step Logachev framework. In his judgment, Menon CJ took pains to caution that this framework cannot be “adapted for use with the basic offence under s 6 simply by making … a downward adjustment to the indicative sentencing ranges to account for the lower sentencing range prescribed by the statute”. This is because the public service rationale will be implicated in virtually all cases falling under the aggravated offence under ss 6 and 7 of the PCA, while the same cannot be said for the simpliciter offence under s 6 of the PCA (at ).
82 At first glance, the framework in Wong Chee Meng( supra)appears to be a general framework as it applies to all offences under s 6 read with s 7 of the PCA. This may include offences under both Categories 1 and 2, if the offender is convicted under ss 5 or 6 read with s 7. It is also included in Category 4 because: (a) s 7 of the PCA is a punishment enhancement provision that increases the maximum imprisonment term under ss 5 or 6 of the PCA from 5 to 7 years; and (b) it only applies in the specific situation where the offence under ss 5 or 6 of the PCA takes place in relation to contracts with the Government or other public bodies (at ). The Wong Chee Meng framework is thus a narrow one when one considers the wide breadth of fact scenarios in which corruption offences may be committed.
83 In Ding Si Yang([79(d)] supra), I formulated a narrow sentencing framework which applies only in the specific scenario of football match-fixers convicted under s 5 of the PCA.
84 It is not difficult to understand why our courts have, thus far, declined to devise a general sentencing framework for all simpliciter corruption offences under ss 5 and 6 of the PCA.
85 First, while there is a degree of overlap between ss 5 and 6 of the PCA, they are distinct offence creating provisions. Section 5 punishes corruption generally and is of a much wider ambit than s 6, the latter of which focuses on punishing agents who have allowed their loyalty to their principal to become suborned through the corrupt receipt of gratification. Different sentencing considerations may thus be relevant depending on which section the offender is charged under (see Wong Chee Meng at , citing Andrew Song ( supra) at ).
86 Second, focussing more narrowly on ss 6(a) and 6(b) of the PCA, these two provisions will still cover a wide variety of factual scenarios. While “[t]he fact that corruption occurs in a wide variety of circumstances does not, in and of itself, preclude the adoption of a sentencing framework”, it cannot be denied that“[t]he wide variety of acts caught by ss 5 and 6 of the PCA would make [the] crafting of a single sentencing framework applicable to all such offences an extremely challenging task” [emphasis in original] (Wong Chee Meng ( supra)at  and Michael Tan ( supra)at ).
87 I end this section with a brief observation that the Prosecution had originally proposed the adoption of a general sentencing framework under ss 5 and 6 of the PCA. In the light of Wong Chee Meng, it no longer maintains this position and instead argues in favour of a general sentencing framework under ss 6(a) and 6(b) of the PCA. It is to this question that I now turn.
Issue 1: The appropriateness of a sentencing framework
88 In my judgment, the time has come for this court to lay down a sentencing framework for offences under ss 6(a) and 6(b) of the PCA. This framework will be limited to cases of purely private corruption, ie, Category 3, as defined above at [79(c)].
89 In coming to my decision, I have had regard to a long list of approximately 50 precedents involving around 160 individual charges compiled by the Prosecution and supplemented by the Defence. This list represents the majority of the available written decisions on corruption under ss 5 and 6 of the PCA in Singapore.
90 First, given the broad variety of ways in which corruption may manifest itself, a sentencing framework will provide guidance for sentencing courts as to the appropriate sentence in novel or unusual fact scenarios where there are no analogous precedents. Having reviewed the abovementioned list of precedents, I am of the view that the present case is indeed one where there a dearth of analogous precedents. The only other cases involving similarly high aggregate bribe quantum are Leng Kah Poh( supra)and Public Prosecutor v Andrew Tee Fook Boon  SGHC 192. However, these cases can be distinguished on the facts given the egregious conduct of the appellants in abusing their position to extract bribes by threatening Koh. The present case falls within Romel category 3 for which there are few available precedents, and no precedents involving such a high aggregate bribe quantum. Given the lack of analogous precedents, I am thus persuaded that a sentencing framework will help me to determine if the sentences imposed by the DJ are indeed manifestly excessive, and if so, to derive appropriate sentences for the appellants.
91 Second, a sentencing framework will be beneficial for achieving broad consistency in sentencing for purely private sector corruption cases. The word “consistency” here is used in two senses: (a) consistency in methodology; and (b) consistency in sentencing outcome. The former requires sentencing courts to apply a methodology that is broadly consistent when faced with a particular type of case. This needs no further elucidation as it has been amply explained in Wong Chee Meng( supra)at –.
92 The latter requires that a sentencing court arrives at broadly the same outcome for the sentences imposed irrespective of the methodology applied given the same equivalent set of facts. Consistency in sentencing outcome requires that all things being equal, sentencing courts faced with two very similar cases should arrive at broadly similar outcomes, irrespective of the methodology used. This is ideal. But the reality is that different methodologies are likely to give rise to different sentencing outcomes, thus the need for a sentencing framework. If the same methodology is applied (as in a sentencing framework prescribed for a particular type of offences), it is more likely for the same sentencing outcome to be reached, provided always that the methodology (ie, the sentencing framework) is well-defined and does not itself lead to different sentencing outcomes when applied to the same set of facts. If it does, then the methodology or the sentencing framework itself needs refinement.
93 Focusing on the latter, I agree with the Prosecution that there are inconsistencies in the case law. For example, in Public Prosecutor v Ng Sing Yuen  SGDC 203 (upheld in Magistrate’s Appeal No 37 of 2007), a sentence of eight months’ imprisonment was imposed for a charge involving $100,000 with aggravating factors like a breach of trust and persistent and sustained offending. Meanwhile in Leng Kah Poh, a charge involving $86,000 with similar aggravating factors only attracted 14 weeks’ imprisonment (or approximately 3.23 months’ imprisonment at 4.33 weeks/month).
94 I acknowledge that full consistency is not possible given that: (a) no two cases are identical on the facts; and (b) a measure of discretion is accorded to sentencing judges in arriving at an appropriate sentence. That said, I believe that a prescribed sentencing framework will help sentencing courts to achieve a broadly consistent sentencing outcome. First, it will help the court to understand where a particular offender falls within the spectrum of the severity of offending. Second, it will enable the court, prosecutors and defence counsel to weed out precedent cases with sentencing outcomes that are wildly inconsistent with the general trend of similar cases. Third, it will cause sentencing courts to apply the same broad methodology, barring exceptional circumstances.
The scope of the sentencing framework
95 It is not appropriate at this juncture to lay down a general sentencing framework that deals with all categories of corruption for all offences under ss 6(a) and 6(b) of the PCA.
96 First, the development of a framework that pertains only to purely private sector corruption is in line with the nuanced context-specific approach that our sentencing courts have taken over the course of the past 80 years, ie, in developing lines of case law applicable to the various broad contexts in which corruption occurs (see Michael Tan( supra)at ).
97 In this regard, I disagree with the Prosecution’s submission that it is “unclear” if a context-specific framework will be in line with the legislative intention behind ss 6(a) and 6(b) of the PCA given that Parliament has legislated for a single offence-creating provision with a single sentencing spectrum.
Foot Note 98
DPP Subs 3 at para 29(a).
No authority is cited for this proposition, which ignores the fact that the same context-specific approach has been used by our courts for a variety of offences. Under s 338(b) of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) which deals with negligent offenders who cause grievous hurt, the High Court in Tang Ling Lee v Public Prosecutor 4 SLR 813laid down a sentencing framework that applies onlyto cases involving traffic accidents.
98 The utility of the context-specific approach lies precisely in its ability to recognise that certain aggravating (or mitigating) factors may take on exceptional weight in specified contexts. The context-specific approach is best applied in cases where the offence-creating provision is worded so broadly as to encompass a wide variety of factual situations.
99 Second, the weight that our courts have placed on the public service rationale may well mean that any sentencing framework will have to be applied differently based on the absence or presence of such factors (see Wong Chee Meng( supra)at  in respect of the public service rationale).
100 In any event, the present appeals concern a case of purely private sector corruption. It is not necessary for me to formulate a general sentencing framework under ss 6(a) and 6(b) to come to a determination on the present appeals against sentence. As such, the framework that I set out below concerns only cases involving purely private sector corruption under ss 6(a) and 6(b) of the PCA. I leave open the question of a general sentencing framework for corruption offences for a future court.
Issue 2: The type, form and design of a sentencing framework
The parties’ submissions on the possible frameworks
101 In the course of these appeals, various models of sentencing have been put forth by the parties. They are alternately described as “sentencing guidelines” and “sentencing frameworks”.
102 For conceptual clarity, where the expression “sentencing guideline” is used in this judgment, it will refer to a court’s guidance as to the presumptive sentences that should be imposed for the commission of an offence in defined factual scenarios (see Terence Ng( supra)at ).
103 A sentencing framework as defined above at  is a type of sentencing guideline that explains how the entire statutory range of sentences for a particular offence ought to be spread across the myriad fact scenarios that fall under the offence-creating provision. Sentencing frameworks, as a form of sentencing guideline, can be contrasted with another form of sentencing guideline called sentencing “benchmarks”, in which the court identifies an archetypal case (or a series of archetypal cases) and the sentence which should be imposed in such a case. An example of a benchmark sentencing guideline can be found in Wong Hoi Len v Public Prosecutor  1 SLR(R) 115. There, the High Court found that the benchmark sentence for an uncontested charge of assaulting a public transport worker under s 323 of the Penal Code is 4 weeks’ imprisonment (see Terence Ng at –).
104 The parties’ proposed models take the form of sentencing frameworks.
The five-step sentencing framework (harm-culpability matrix)
105 The Prosecution proposes a five-step sentencing framework modelled on the two-stage, five-step Logachev framework. This framework applies to determine the sentence (per charge) for an offender who claims trial to offence(s) under ss 6(a) and 6(b) of the PCA. As in Logachev( supra), the framework can broadly be split into two stages.
106 At the first stage (“Stage 1”), the court has regard to the severity of the offence committed by having regard to allthe offence-specific factors present on the facts of the case and arrives at an indicative sentence to reflect it. Offence-specific factors are those which relate to the manner and mode in which the offence was committed as well as the harm caused to the victim or to the wider society. The offence-specific factors can be further grouped into factors that go towards the harm caused by the offence and the offender’s culpability (see Terence Ng( supra)at , Logachevat –). In this sense, the overall severity of the offence is determined by the interaction between factors that separately go towards (a) harm, and (b) culpability.
107 At the second stage (“Stage 2”), the court considers all the offender-specific factors to derive a sentence for each individual charge. These are aggravating and mitigating factors that are personal to the offender. They do not relate directly to the commission of the offence but rather, to the personal circumstances of the offender (see Terence Ng at , Logachev at –), eg, a plea of guilt. In that regard, the offence-specific factors and offender-specific factors are generally treated as being mutually exclusive in nature.
108 The five steps of the Prosecution’s sentencing framework are as follows:
Foot Note 99
DPP Subs 3 at para 54.
(a) Step 1: Identify the offence-specific factors that go towards harm and culpability. Culpability, as assessed by the manner, mode and extent of the offender’s involvement in the criminal act, is a measure of his relative blameworthiness. Harm is a measure of the injury caused to the society by the commission of the offence.
(b) Step 2: Identify the applicable indicative sentencing range having regard to the prescribed sentencing range in a sentencing matrix based on the two elements of “harm” and “culpability” (ie, the harm-culpability matrix). The available indicative sentencing ranges set out in the sentencing matrix fall within the spectrum of punishment prescribed by Parliament for ss 6(a) and 6(b) of the PCA.
(c) Step 3: Identify the appropriate indicative starting point for the sentence (“indicative sentence” or “indicative starting sentence” being used and referred to hereafter interchangeably) within the indicative sentencing range identified in Step 2, as determined by an examination of the offence-specific factors.
(d) Step 4: Make adjustments to the indicative starting sentence to account for offender-specific factors.
(e) Step 5: Make further adjustments to the individual sentences, if necessary, to take into account the totality principle.
109 Steps 1 to 3 fall under Stage 1, Step 4 falls under Stage 2 and Step 5 relates to the determination of the final sentence per charge after the court considers the number of sentences of imprisonment to be run consecutively or concurrently for all the charges and the overall imprisonment sentence to be imposed on the offender having regard to the totality principle.
110 There is no substantial dispute in relation to the relevance of the offence and offender-specific factors listed out by the Prosecution and I will not go through them here. Instead, I focus on the determination of the indicative starting sentence.
111 The Prosecution’s harm-culpability matrix is reproduced below (with a mere re-arrangement of the layout of the boxes to reflect increasing harm from the left to the right boxes; and increasing culpability from the bottom to the top boxes and with no change whatsoever to the content or indicative sentencing range specified in each of the boxes). The general manner of spreading out the sentences by the Prosecution is typical of many of such matrices found in precedent cases setting out similar harm-culpability matrices.
112 I previously mentioned that Ishibe had also initially proposed the adoption of a sentencing framework modelled on the Logachev framework.As Ishibe did not delve into the specifics of the structure of his framework in his submissions, I can only assume that Ishibe’s proposed harm-culpability matrix operates in a similar fashion to the Prosecution’s framework but only differs in respect of the sentencing range prescribed for each box in his proposed matrix.
Foot Note 100
Ishibe Subs 1 at paras 136 – 138.
113 Ishibe’s harm-culpability matrix is reproduced as follows:
114 In addition to the five-step Logachev framework, Ishibe also undertook a graphical analysis to broadly show that the sentences imposed by the DJ are manifestly excessive when compared to other precedents involving high amounts of gratification.
Foot Note 101
Ishibe’s Executive Summary dated 26 July 2020 (“Ishibe’s Executive Summary”).
115 Ishibe collated 13 corruption precedents under ss 5 and 6 of the PCA and plotted the total gratification received in those cases against the eventual imprisonment sentence passed on the offender. The graphs are designed to show the very broad correlation between the overall bribe quanta as a principal determinant of sentence (ie, the independent variable) and the indicative sentence (ie, the dependent variable). Ishibe was not trying to use his graphs to assist in determining an appropriate final sentence for himself based on the total bribe quantum involved in the present appeals.
116 I have not reproduced Ishibe’s graphs as they contain outdated cases (see, for example, the sentence of the offender in Public Prosecutor v Gursharan Kaur Sharon Rachel  SGDC 217 which was recently enhanced on appeal in Michael Tan( supra)at –), and cases involving public sector corruption.
Foot Note 102
Ishibe’s Executive Summary at Annex C, p 5 s/n 9.
Nonetheless, I bear in mind this approach as a possible sentencing framework for purely private sector corruption under ss 6(a) and 6(b) of the PCA.
117 The last sentencing framework is the sentencing band framework employed by the DJ. After Hoo J’s decision in Michael Tan, it is clear that this approach is unsuitable for corruption offences under the PCA (Michael Tan at –), and I say no more about it
118 There are thus two proposed sentencing frameworks for my consideration in these appeals, ie, the graphical analysis premised on bribe quantum and the harm-culpability matrix.
A general discussion on the construction of a sentencing guideline or framework
119 I begin with a general discussion on the structure, form and design of a sentencing guideline, focussing on the sentencing framework model and the principles that need to be adhered to in order to achieve as much consistency as possible in the sentencing outcomes when the same framework is being applied to the same fact situations.
120 In Singapore, the task of issuing sentencing guidelines falls on the judiciary, rather than an executive body specially constituted for this purpose. As was observed by the Court of Appeal in Terence Ng ( supra) at , there are many forms of sentencing guidelines such as the benchmark approach, the single starting points approach and the sentencing matrix approach.
121 Constructed well, sentencing guidelines are formidable tools that help future sentencing courts work towards collectively achieving key goals such as:
(a) Promoting consistency in sentencing while maintaining an appropriate level of flexibility and discretion for sentencing courts.
(b) Encouraging transparency in reasoning. This is especially when future courts apply a similar methodology which requires them to explain their reasoning processes at different stages of the sentencing analysis.
(c) Creating a coherent picture of sentencing for a particular offence. The sentencing guideline should respect the statutory context by taking into account the whole range of penalties prescribed by the relevant statute. It should also ensure rationality in the spread of sentences and avoid arbitrariness in the indicative starting sentences laid out.
(See Terence Ng at  and Benny Tan Zhi Peng, “Assessing the Effectiveness of Sentencing Guideline Judgments in Singapore issued Post-March 2013 and A Guide to Constructing Frameworks” (2018) 30 SAcLJ 1004 at para 20.)
122 In Singapore, sentencing guideline judgments are found in the decisions of the High Court or the Court of Appeal. In accordance with the doctrine of stare decisis, such judgments are binding on any lower courts. This means that they will not only influence the way that future offenders are to be treated by other judges, but also have the potential to radically reform future sentencing trends for a particular offence.
123 It is for this very reason that the decision to lay down a sentencing guideline is not one that is undertaken lightly by our courts. In all cases where a court chooses to do so, the eventual guideline is invariably a product of intense deliberation. At the minimum, the court will have to answer two questions in respect of the type and content of the sentencing guideline.
Question 1: Type of sentencing guideline
124 First, what type of guideline will be best suited for the particular offence or the particular factual matrix? Sentencing guidelines are judicial creations that take many forms. Each comes with its own advantages and disadvantages that may make it uniquely well-suited to a specific context, but completely disastrous in another (see generally Terence Ng( supra)at –).
125 As the parties’ submissions focus on sentencing frameworks, I will not delve into the advantages and disadvantages of other types of guideline judgments such as the benchmark approach. This has been adequately explored by the Court of Appeal in Terence Ng at –. Instead, I focus directly on sentencing frameworks.
126 It will be apparent from my summary of the parties’ proposed sentencing frameworks that sentencing frameworks tend to focus on deriving a preliminary sentence based on the presence or absence of certain key sentencing parameters. The preliminary sentence is then adjusted after the sentencing court has regard to the other relevant factors present in the case. The key sentencing parameters are “independent variables” as they will independently have an impact on the indicative starting sentence for a particular offender. The preliminary sentence is the “indicative sentence” or the “indicative starting sentence” as referred to above. The preliminary sentence is also the “dependent variable” as it is determined by the interaction of the independent variables.
127 To forestall confusion later, I elaborate on the difference between a sentencing parameter and a sentencing factor. A sentencing factor is an aggravating or mitigating factor that exists in the particular factual matrix of the offender’s offence. A sentencing parameter exists because of the design of the sentencing framework in question – the creator of a sentencing framework designs the framework such that any individual applying the framework will have to have regard to one or more sets of considerations (ie, parameters) to arrive at the indicative starting sentence. In some cases, the value and extent of a sentencing parameter may be derived from a number of sentencing factors. For example, the level of harm caused by an offence may be determined by the level of physical and emotional harm suffered by the victim and the public disquiet caused by the offence. In other cases, the value and extent of a sentencing parameter may be derived from just one main sentencing factor. An example of this is in Poh Boon Kiat v Public Prosecutor  4 SLR 892 (“Poh Boon Kiat”). There, the principal factual elements of vice-related offences were held to be (a) the manner and extent of the offender’s role in the vice syndicate (ie, the chosen primary determinant of offender’s culpability); and (b) treatment of the prostitute (ie, the chosen primary determinant of the harm caused by the offence) at – (see also Terence Ng at ). The two sentencing parameters of harm and culpability are thus determined with reference to only one sentencing factor each.
128 Returning to the point at , a general sentencing framework may take the form of a single independent variable sentencing framework (“Single Variable Framework” or “Single Variable Sentencing Framework”) that focuses on the presence of one dominant sentencing parameter to determine an indicative sentence. This framework is well suited for offences like drug trafficking and cigarette smuggling for two reasons: (a) there is one principal determinant of sentence for all factual scenarios covered by the offence; and (b) this independent variable is measurable according to a single (usually quantitative) metric (see Terence Ng at –). Ishibe’s graphical analysis is essentially a Single Variable Framework, where the dominant sentencing parameter is taken (or first assumed) to be the amount of gratification received and used to derive an indicative starting sentence, which is then adjusted to take into account all other aggravating and mitigating factors to arrive at the final sentence.
129 However, a Single Variable Framework will be less suitable for offences in which there is more than one dominant or principal determinant of the indicative sentence, one example being the offence of causing hurt under s 323 of the Penal Code (see Low Song Chye v Public Prosecutor and another appeal  5 SLR 526). There, the two principal factual elements of “harm” and “culpability” separately play major roles in determining the indicative starting sentence. It is thus necessary to have regard to a two variable sentencing framework (“Double Variable Framework”or “Double Variable Sentencing Framework”). This may take the form of a sentencing matrix as defined in Terence Ng( supra)at , which considers only two principal factual elements (ie, two sentencing parameters) to determine an indicative starting sentence. An example of this can be seen in Poh Boon Kiat in the context of vice-related offences (see above at ). More recently, Double Variable Frameworks have taken the form of a harm-culpability matrix which focuses on a wide variety of offence-specific factors which go towards the harm caused by the offence and the offender’s culpability to determine the severity of the offence (see Logachev ( supra) at ).
130 For clarity, I must add that Double Variable Frameworks do not invariably require a consideration of “harm” and “culpability” as the only two possible dominant independent variables influencing the determination of the indicative starting sentence. It may be any two principal factual elements (ie, parameters) that are key determinants of sentence. For example, in Tay Wee Kiat and another v Public Prosecutor and another appeal  4 SLR 1315, the three-judge High Court set out a sentencing framework for offences under s 323 read with s 73 of the Penal Code which uses physical harm and psychological harm as the two principal determinants of the indicative starting sentence (at –).
131 There are also offences where more than two key variables have a major impact on the indicative sentence. A sentencing framework that is capable of factoring more than two key independent variables to determine an indicative sentence is a multi-variable framework (“Multi-Variable Framework” or “Multi-Variable Sentencing Framework”). An example of this is the approach taken to the offence of unlawful stalking under s 7 of the Protection from Harassment Act (Cap 256A, 2015 Rev Ed) which requires consideration of, inter alia, the duration and frequency of stalking, the degree of intrusion into the victim’s life, the vulnerability of the victim, etc (see Lim Teck Kim v Public Prosecutor  5 SLR 279 (“Lim Teck Kim”) at ). For a Multi-Variable Framework, the design tends to take the form of a points-based scoring system because the framework has to handle multiple variables each with its own weight affecting the final outcome (see  below). I add that a points-based framework to determine the indicative starting sentence is only possible if the court is also able to determine the relative weights to be given to each of the various key sentencing parameters (ie, independent variables) and calibrate the sentencing framework to take this into account.
132 As the number of key sentencing parameters (ie, independent variables) in the sentencing framework increases, the indicative starting sentence will be more nuanced and fine-tuned to the facts. In other words, the magnitude of adjustment required from the indicative starting sentence to the final sentence is likely to be smaller for a Multi-Variable Framework than say, a Single or Double Variable Framework given that a larger number of key sentencing parameters have already been considered and accounted for when determining the indicative starting sentence in a Multi-Variable Framework. The attendant downside to this is that Multi-Variable Frameworks tend to be more complex than Single or Double Variable Frameworks when it comes to determining the indicative starting sentence. As such, there will always be a trade-off in terms of refinement (ie, the number of independent variables to be taken into account when determining the indicative starting sentence as the dependent variable) and the ease of understanding and application of the sentencing framework.
133 A framework that is “suitable” in respect of a particular offence is a framework that strikes a good balance between the need for a refined indicative starting sentence that takes into account the key sentencing parameter(s) and its ease of application.
134 The important point to appreciate is that in all cases where a judge decides to lay down a sentencing guideline or framework, a decision must be made as to the type of the framework because each type of guideline or framework has its own strengths and weaknesses. At the end of the day, the court’s task remains the same, namely, to determine the appropriate sentence for the particular offender before it. To do so, the sentencing court must take into account all the relevant facts and circumstances of the case. Sentencing frameworks and guidelines simply serve as tools to guide its discretion.
(1) On Single Variable Frameworks depicted graphically or in tabular form
135 Before moving on to the second question of “content”, I pause to emphasise an important point in respect of sentencing frameworks that take the form of a graph. A Single Variable Framework does nothave to take the form of a two-dimensional (“2D”) graph. It may well be a table, eg, in Vasentha d/o Joseph v Public Prosecutor  5 SLR 122 at , in the context of the indicative starting sentences for first-time offenders trafficking in diamorphine.
136 A graph is no more than a simple pictorial presentation of the relationship between the single independent variable on the one hand (which is normally depicted on the “x” or horizontal axis of the graph) and the dependent variable on the other (which in our present context is the indicative starting sentence, normally depicted on the “y” or vertical axis of the graph). The same information represented in the graph may also be alternatively presented in a table format. The format of presentation (be it a graph or a table) is a mere matter of form and not of substance. Any argument that a graph must necessarily be inferior to a table because it is too mathematical is inherently an illogical one that should be rejected. The principal driving force in the choice of the presentation format (be it a graph or a table) should be in the relative ease of understanding and the efficacy of its application. Both presentation formats will give the same indicative starting sentence when given the same independent variable as input data to feed into the framework (eg, the weight of the drug being trafficked).
137 I reiterate that a graph is merely an alternative method of representing the contents of a framework in a more understandable pictorial fashion. Like the tabular form or the harm-culpability matrix, it does not constrain a judge’s sentencing discretion (at least, not more than a table or the harm-culpability matrix does), nor does it transform the sentencing exercise into a mathematical inquiry.
(2) On Double or Multi-Variable Frameworks
138 The same applies to a Double Variable Framework. This may take the form of a table, a harm-culpability matrix which lays out indicative sentencing ranges, or a three-dimensional (“3D”) model which lays out the indicative sentencing points. An example of such a table can be seen in the decision of Public Prosecutor v Lai Teck Guan  5 SLR 852 (“Lai Teck Guan”) at –. There, the two independent variables are the weight of diamorphine and the criminal history of the offender (ie, whether he is a first-time or second-time offender). The interaction of these two independent variables gives rise to the indicative imprisonment sentence to be applied to a particular offender (ie, the dependent variable).
139 A Multi-Variable Framework cannot be properly represented by a 3D graph because it is near impossible to fully render a sentencing framework comprising of three or more key independent variables affecting the indicative starting sentence (ie, the dependent variable) in a 3D world. Neither can it be readily represented in a tabular format.
140 For such Multi-Variable Frameworks, I believe that the only practicable and sensible methodology is to adopt a “scoring system” or a “points system” where each of the multiple key independent variables is assigned a range of values depending on its relative weight (vis-à-vis other key independent variables) in affecting the indicative starting sentence to be scored (as a dependent variable) on a score sheet. The overall score is then mapped on to a scale that gives the indicative starting sentence. This methodology is neither unique nor innovative. It has been commonly applied in many different fields including those in education, science, economics, psychology, psychiatry and medicine.
141 A simple illustration of this is in how examination papers are scored. The dependent variable is the final mark given to a particular student (ie, the outcome of the examination). This is determined by the individual’s score on a variety of examination questions (ie, each question being a single independent variable). Each question may be assigned a different maximum score depending on the importance and difficulty of the question (ie, constituting their relative weight in affecting the final marks). The examiner will assess the number of marks to be given for each answer bearing in mind the maximum number of marks that can be given for that question. The aggregate marks scored for all the answers to all the questions will determine the final mark (or grade, eg, A, B, C, D, E or F) of the student (ie, the dependent variable) for that examination paper.
142 This scoring methodology where multiple independent variables are involved in the assessment for a single final outcome (ie, the single dependent variable) is employed in a plethora of situations, eg, in determining the Intelligence Quotient of a person in psychological tests, in testing for the presence and degree of severity of a particular mental illness in psychiatric examination, and even in assessing the corporate governance practices of Singapore-listed companies in the “Singapore Governance and Transparency Index” (“SGTI”). Focussing on the SGTI, a company’s score is based on two components. First, the base score which comprises of five domains: (a) board responsibilities (35 points); (b) rights of shareholders (20 points); (c) engagement of stakeholders (10 points); (d) accountability and audit (10 points); and (e) disclosure and transparency (25 points). Adjustments are then made to the base score in the form of adding bonuses and/or subtracting penalties to arrive at the company’s overall SGTI score.
143 The point is simply this: a sentencing framework of whatever form (even one represented graphically) is a mere sentencing tool to assist a sentencing judge. It does not and cannot override judicial discretion. A sentencing judge must still come to an independent decision as to the appropriate sentence (after considering the severity of the offence, the circumstances of the offender and any other relevant factors). Having said this, a sentencing tool, when designed, must nevertheless remain inherently logical, have conceptual integrity, and provide consistent indicative sentencing outcomes when applied to the same set of facts. Otherwise, it loses its attractiveness.
Question 2: Contents of the sentencing guideline
144 After considering the type of sentencing guideline, the second question the court must answer is what are the contents of the sentencing guideline? In this section, I focus specifically on the design of a sentencing framework because I have previously found that a general sentencing framework will be appropriate in these appeals.
145 The contents of a sentencing framework extend beyond a list of the relevant aggravating and mitigating factors and include a consideration of what the appropriate indicative starting sentences might be in various categories of the offence.
146 When filling in the contents of a sentencing framework and determining the indicative starting sentences that apply for different categories of fact scenarios, the court must bear in mind several important general principles, which if followed will help attain the objectives of having a coherent and logical framework that has conceptual integrity, and hopefully also provide broadly consistent indicative sentencing outcomes when applied to the same set of facts.
(1) The Proportionality principle
147 The sentence must be proportionate to the crime. All things being equal, as the severity of the crime increases, the sentence meted out must also increase, up to the statutory limit prescribed by Parliament. In the context of the sentencing frameworks, this means that the indicative starting sentences or indicative sentencing ranges prescribed must increase proportionally to the severity of the offence (as determined by the quantum of gratification, or the harm and culpability, or even multiple other factors as the case may be). I refer to this as the “Proportionality principle”.
(2) The Continuity principle
148 The indicative starting sentences prescribed by the sentencing framework must increase smoothly and continuously, in tandem with the increasing severity of the crime (the “Continuity principle”). The sentencing framework aims to spread out the entire range of possible sentences across the full spectrum of offending under the particular offence-creating provision (or under a particular category of offending under the provision, eg, purely private sector corruption). There must not be any unexplained gaps in the indicative starting sentences prescribed under the framework. This is for two main reasons.
149 First, unexplained gaps are inconsistent with the aim of the sentencing framework model, ie, to spread out the entire range of possible sentences across the full spectrum of criminal offending that falls within a particular offence creating provision. The presence of unexplained gaps arbitrarily restricts the sentencing court from selecting certain indicative sentences (falling between the lower and upper end of that gap) even though they may be warranted on the facts.
150 Second, unexplained gaps in the sentences prescribed by the sentencing framework are inconsistent with the abovementioned general principle that sentences ought to be proportional to the severity of criminal conduct. An offender who falls into a gap not covered by the prescribed sentencing range will not be able to receive a sentence that increases in proportion to the severity of his crime: the possible sentence available to him will be restricted to the sentences on both sides of the gap. I provide a pictorial illustration for this at Annex C. If the indicative starting sentence shown in the sentencing framework suddenly jumps upwards when the overall criminal culpability only increases slightly, it will cause the indicative starting sentence to jump from the lower end to the upper end of that gap upon crossing that gap. This is tantamount to having a sentencing framework with an inherent minimum indicative sentence starting at the upper end of that gap. I illustrate this point with reference to the offence of drug trafficking under s 5 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”). Assuming that: (a) at 5g of heroin trafficked, the indicative starting sentence is 5 years’ imprisonment; and (b) at 5.01g of heroin trafficked, the indicative starting sentence jumps to 7 years’ imprisonment, there will then be an upward gap of 2 years’ imprisonment at the 5g mark. This amounts to having a judicially created minimum indicative starting sentence of 7 years’ imprisonment embedded within the sentencing framework for trafficking in just slightly more than 5g of heroin. Gaps therefore have the effect of judicially legislating a minimum indicative starting sentence at points where gaps in the indicative starting sentences occur.
151 There may be cases in which gaps in the sentencing range are necessary and/or unavoidable. One example of this occurs when Parliament prescribes a mandatory minimum sentence for a particular instance of offending under the relevant provision. For example, an offender who traffics in exactly 10g of diamorphine will face a mandatory minimum sentence of 20 years’ imprisonment and 15 strokes of the cane (see Second Schedule to the MDA), while an identical offender who traffics in 9.99g of diamorphine will face a maximum of 15 years’ imprisonment and 11 strokes of the cane (see Lai Teck Guan ( supra) at ). However, apart from such instances where they are unavoidable, unexplained gaps in the sentencing ranges must be avoided when filling in the contents of a sentencing framework.
(3) The Completeness principle
152 When a court decides upon the contents of a sentencing framework, it should include the full range of sentences as prescribed by Parliament (including the different types of sentences available), unless there are very good reasons for not doing so. I refer to this as the “Completeness principle”.
153 A sentencing framework that fails to do so runs the risks of prescribing judicially created minimum sentences, imposing caps on the maximum punishment available under the section, creating gaps in the sentence range, and/or completely ignoring a particular type of punishment made available under the provision.
154 Under ss 6(a) and 6(b) of the PCA, the maximum punishment prescribed by Parliament is 5 years’ imprisonment and a fine not exceeding $100,000. As such, a sentencing framework for purely private sector corruption cases must be capable of covering the entire range of imprisonment sentences and fines, and not simply ignore the possibility of imposing an imprisonment term in conjunction with a fine. The sentencing framework will be flawed if it ignores the fact that the maximum imprisonment term is 5 years, and only provides for imprisonment terms up to 4 years. It will also be flawed if it completely ignores the possibility of a fine in conjunction with an imprisonment term for an offender.
(4) The Single Point principle
155 The fourth principle is of particular relevance to sentencing frameworks as it directly addresses the relationship between the degree of specificity of the values for the independent variables chosen as “inputs” to the framework and the degree of specificity of the dependent variable being the indicative starting sentence that is the “output” or ultimate result of applying the framework using the independent variables as inputs to the framework. The principle is that where the values of independent variables have been assessed with a high degree of specificity from a given set of facts, there should only be one indicative starting sentence (ie, the dependent variable) as an output from applying the framework and not an indicative range of starting sentences as an output. Where, however, the independent variables have not been concretely assessed to be of a particular severity (because of factual uncertainty or because the court has not yet been able to determine the more precise weight and severity of the various factors involved in the assessment of each of the specific parameters – ie, independent variables), then the values for the independent variables as inputs into the framework will not be a pinpoint value but a range. Inputs of independent variables as range inputs into the framework must necessarily result in a range output from applying the framework (ie, a range of indicative starting sentences will inevitably be thrown up as a result of applying the framework by inserting range inputs for the independent variables to the framework).
156 Put simply, a point input (being a specific value for each independent variable input) for a point output (being a definitive indicative starting sentence as a dependent variable output from applying the framework), and a range input (being the possible range of values assessed for each independent variable) for a range output (being the indicative sentencing range thrown up as a dependent variable output from applying the framework). I refer to it as the Single Point principle.
157 It is helpful to begin by considering the relationship between the range of prescribed sentences for an offence under the law, the specific indicative starting sentence derived from a sentencing framework and the final sentence imposed by the court. The prescribed sentencing range in a written law reflects the legislatively created sentencing range set out in the relevant statute for the particular offence. It is called a sentencing “range” because it is made up of multiple discrete points (eg, an imprisonment term of 1 day, 5 weeks, 10 years, etc, 12 strokes of the cane or a fine of $5, $5,000 or $50,000). An offender can only be sentenced to one final sentence out of the entire prescribed sentencing range: he or she cannot be sentenced to a range of sentences (eg, between 18 to 24 months’ imprisonment). The final sentence must be a specific pinpoint sentence, say of 18 months’ imprisonment, no more and no less. In the same way, in applying a sentencing framework, the offender can only receive one indicative starting sentence out of the entire prescribed sentencing range given a specific assessed degree of severity or value for each of the particular set or combination of independent variables chosen for the design of the sentencing framework (ie, assuming that there is no uncertainty as to the magnitude, degree or value of each independent variable upon assessment by the court).
158 In a sentencing framework, the indicative starting sentence is normally determined by reference to one particular independent variable for a Single Variable Framework, a combination of two independent variables for a Double Variable Framework, or a combination of more than two independent variables for a Multi-Variable Framework. Examples of these include a combination of the two independent variables of harm and culpability (ie, the harm-culpability matrix) in a Double Variable Framework; and a single independent variable comprising the amount of money misappropriated by an offender under s 409 of the Penal Code per the Single Variable Framework adopted for sentencing in Public Prosecutor v Ewe Pang Kooi  SGHC 166 at .
159 The Single Point principle thus requires that the framework should throw up only one indicative starting sentence (as a theoretical concept) after the court completes its assessment of the factual matrix in which the crime was committed and is able to arrive at a particular and definitive level of severity or value for all the independent variable(s) chosen for the particular framework. In such a circumstance, the framework ought not to throw up a range of indicative starting sentences as its output. While there may be certain combinations of values for each of the various independent variables (or of one independent variable in a Single Variable Framework) that may give rise to the same indicative starting sentence, each combination of input values can only give rise to one indicative starting sentence as an output value of the dependent variable. This is for consistency of outcomes for one same set of facts. If one combination of input values for each of the various independent variables can have two possible indicative starting sentences, or a range of possible indicative starting sentences as output values, there will be much room for inconsistency when applying the framework to the same set of facts.
160 Using the example of a Single Variable Framework, if an offender is charged for trafficking in exactly 5g of heroin (the equivalent of a pinpoint input value to the framework), and the indicative starting sentence for trafficking in exactly 5g of heroin derived from applying the sentencing framework can be in a range of 5 to 7 years’ imprisonment, then a judge in one court can chose a starting sentence of 7 years’ imprisonment, and another judge in another court for another case involving trafficking in exactly 5g of heroin can chose to start with a totally different sentence of 5 years’ imprisonment as the indicative starting point, although both cases are identical and involve exactly the same set of facts of trafficking in 5g of heroin. This sort of framework inherently magnifies inconsistency in sentencing. The same applies for Double or Multiple Variable Frameworks. In essence, for each specific set of combination or combinations of the independent variables all with definitive assessed pinpoint values (ie, singular point value for each of the independent variable(s) as inputs to the sentencing framework), there can only be one identifiable indicative starting sentence as a pinpoint output from applying the sentencing framework.
161 In other words, once a sentencing court considers the overall factual matrix, assesses all the material facts and their weightage relevant to the assessment of the degree of severity or value of each of the independent variables and eventually arrives at a definitive pinpoint value for each of these independent variables to be inserted as inputs into the sentencing framework as designed, then the resulting output from the sentencing framework will have to be a definitive pinpoint indicative starting sentence and not a range of possible indicative starting sentences. Where it is not possible to assess the values of the independent variables with precision as inputs to the framework (which is often the case in a practical application), then one has to input a range of values ie, a range input into the framework (eg a range of possible values of harm assessed somewhere in the region of the lower end of the “high segment” on the scale for the independent variable of “harm”), which will then throw up a range output (ie a range of possible indicative starting sentences) for the court to choose from. The court will then have to use its discretion to eventually pick one indicative starting sentence out of that range output to work with for the next stage of sentencing. This does not mean that it is conceptually correct to say that a pinpoint input can give rise to a range output, or that a range input can give rise to a pinpoint output. In a properly designed framework, a pinpoint input can give rise only to a pinpoint output for overall consistency, and a range input must necessarily give rise to a range output.
162 The Single Point principle is not inconsistent with the use of indicative starting sentencing ranges in the process of sentencing. Indeed, it will be observed that sentencing frameworks (in particular those using a harm-culpability matrix to determine the indicative sentence) often mention the need to locate an indicative starting sentencing range that applies to the accused. There is no inconsistency for two reasons. One, because this is a preliminary step that a court will ordinarily have to cross before finally arriving at a precise point for the indicative starting sentence. Two, if there is uncertainty such that the court cannot arrive at a specific value for each of the independent variables or such that the court can only arrive at a specific range in its assessment of the values or degree of severity of the independent variables, the court then has no choice but to input a range input for each of the independent variables into the framework and consequently obtain a range output in the form of a range of indicative starting sentence when applying the framework. The framework itself cannot be faulted if it gives an imprecise output when given an imprecise input. But it can be faulted if the framework is unable to give a precise output when given a precise input. In other words, a court must work with an indicative starting sentencing range as the output if it has not yet or is unable to come to a precise determination for its own input which the framework requires. Using the example of a harm-culpability matrix, if the court is undecided as to the specific level of harm caused by the offender or of his culpability and can only say that the harm is preliminarily assessed to be of a certain range and the culpability is preliminarily assessed to be of a certain range in terms of the degree of severity, the consequence of which must necessarily be that the sentencing framework will provide a possible range of indicative starting sentences as guidance to the court, which has thus far not been able to make up its mind fully as yet. Similarly, if the court is faced with factual uncertainty and is unable to pinpoint the combination of harm and culpability, the court would derive an indicative sentencing range from the framework (see also – below). But at some point, the court must inevitably come down to a pinpoint sentence in the exercise of its judicial discretion having regard to whatever guidance and information that may be provided by the sentencing framework.
163 This does not mean that the framework in its design therefore should provide a range of indicative sentences for each precise point in the framework (ie, for each precise point along the scale for the single independent variable in a Single Variable Framework or for each combination in the array of different combinations of multiple independent variables of different precise values in a Double or Multi-Variable Framework). A framework designed to provide a range of starting sentences available to be chosen for each precise point or each precise combination is to be eschewed because it creates incoherency and inconsistent outcomes when applied. The logic of doing so is also difficult to comprehend. I see no good justification for such a design.
164 In other words, if at the first stage the court is able to determine, based on the factual matrix of the case, a particular precise level of harm and a particular precise level of culpability, then the sentencing framework must provide one indicative starting sentence only. However, if the court is unable to do so (or chooses to do so at a later stage) and can only assess the level of harm as possibly falling into a certain range on the scale of harm, and the level of culpability as falling into a certain range on the scale of culpability, then the same sentencing framework (designed with the Single Point principle in mind) will inevitably furnish an indicative starting sentence as possibly falling within a certain range as a guide to the court when exercising its judicial discretion before finally determining a pinpoint sentence for the offender. I reiterate that no offender can be sentenced to between 2 to 3 years’ imprisonment, 5 to 7 strokes of a cane and a fine of $2,000 to $3,000.
165 I illustrate the above point by again using the quintessential example of a Single Variable Framework:the sentencing framework for first-time drug traffickers. If the framework states that for trafficking in precisely 5g of heroin, the indicative starting sentence is precisely 5 years’ imprisonment, and for trafficking in precisely 6g of heroin, the indicative starting sentence is precisely 6 years’ imprisonment, and if the court is faced with a case where the court is unable to come to a landing at the first stage of sentencing as to the precise level of heroin the offender has trafficked in and the court only able to estimate that the amount of heroin trafficked to be between 5.4g and 5.8g of heroin, then the same sentencing framework (designed with the Single Point principle in mind) will necessarily throw up an indicative starting sentence to be in a range between 5.4 years and 5.8 years, and the court is left to exercise its judicial discretion to decide what the eventual pinpoint starting sentence should be in the light of the circumstances of the case. However, if at the first stage of sentencing the court is in fact able to come to a landing on the precise value of that independent variable, eg, 5.6g of heroin being trafficked, then the sentencing framework will throw up an indicative starting sentence as precisely 5.6 years’ imprisonment as a guide to assist the sentencing judge to exercise his judicial discretion. In such a case, the sentencing framework will not throw up a range of indicative starting sentences say of between 5.4 years to 5.8 years when the court is already able to decide that the precise amount of heroin trafficked is 5.6g.
166 The Single Point principle similarly must apply to a Double Variable Framework. I illustrate this with reference to a harm-culpability matrix. If the court is able to come to a more precise landing as to the specific level of harm and the specific level of culpability, the framework will throw up a definitive starting indicative sentence and not a range of possible indicative sentences. However, if the court is faced with uncertainty and is unable to come to a more precise landing as the level of harm and culpability such that it can only ascertain a range of possible levels of harm and a range of possible levels of culpability given a certain factual matrix, then the sentencing framework will invariably throw up a range of possible indicative starting sentences to assist the court (since the data input into the framework is range data and not a specific data point).
167 The court has two options.
168 The first option is to bite the bullet and resolve the uncertainty at the first stage. In other words, after first identifying a range of indicative sentences that can apply to the specific offender, the court can then use this range as a guide for its exercise of judicial discretion to determine a pinpoint indicative starting sentence at stage one which can then be adjusted at subsequent stages of sentencing to arrive at the final sentence. Using the Prosecution’s framework as an example, a sentencing court can first recognise that a case falls within the moderate harm, medium culpability range but be unsure as to where exactly the case falls. The court will then arrive at an indicative sentencing range of 1 to 2 years’ imprisonment. Next, the court can recognise that the offender falls within the lower end of moderate harm and moderate culpability and thus narrow the indicative range down to 1 to 1.5 years’ imprisonment even though it still has not completely resolved the uncertainty. Eventually, the court must resolve the uncertainty in respect of the offence-specific factors and arrive at a particular pinpoint indicative starting sentence, say of 1 year and 3 months.
169 Alternatively, the court can defer matters to the second or even later stages and continue working with the range of indicative starting sentences thrown up by the framework (because of the continuing uncertainty as to the level of harm and the level of culpability at the first stage percolating to the second and later stages of sentencing). Thereafter, the court can adjust that range of indicative starting sentences at the second and later stages (or steps) of sentencing and end up with a range of possible final sentences at the end of the sentencing process. In the end, the court must still determine as best as it can, a pinpoint final sentence to sentence the offender with guidance from that range of possible final sentences. Returning to the same example, assuming that try as it might, the court cannot resolve the uncertainty at Stage 1 of the Prosecution’s framework with reference to the offence-specific factors. The indicative range remains at 1 to 2 years’ imprisonment. The court will then have to work with adjusting this range of 1 to 2 years’ imprisonment by having regard to the offender-specific factors. It may arrive at a range of 1 year and 3 months to 2 years and 3 months after factoring in the offender-specific factors, which it must eventually narrow to one final sentence to conclude the sentencing process.
170 Whichever method used is the court’s preference. But one point is abundantly clear: the court is simply not permitted to sentence an offender to a range of imprisonment terms simply because the court is unable to determine more precisely what the specific level of harm and the specific level of culpability is at the very first stage of sentencing. It would generate an absurd result – convicts sent to Changi Prison for 12 to 18 months, or 6 to 10 strokes of the cane.
171 I have discussed the Single Point principle at length because it is often misunderstood, especially in the context of sentencing frameworks that incorporate a harm-culpability matrix. At its heart, the principle simply means every single combination of a specified level of harm and a specified level of culpability based on a given set of facts gives rise to one indicative starting sentence which is reflective of the severity of the offence. As explained earlier, where the harm can only be ascertained to be within a particular range and/or the culpability can only be ascertained to be within a particular range, the sentencing framework will necessarily throw up for consideration a range of indicative starting sentences. Where both the harm and culpability can be ascertained to a more precise level, then the indicative starting sentence will be logically and correspondingly narrowed down to a more precise level in the sentencing framework. In short, a “point input” into the framework gives rise to a “point output”. A “range input” into the framework gives rise to a “range output”. In other words, a pointoutput for a point input. A rangeoutput for a range input. Never a pointoutput for a range input. And never a range output for a point input. Allow me to illustrate this with an example of what may go wrong when a pinpoint input into the sentencing framework gives rise to a range output for the indicative starting sentence. Let me assume that a pinpoint input of trafficking in 5g of heroin throws up a possible output range of indicative starting sentence of between 5 and 7 years’ of imprisonment; and a pinpoint input of trafficking in 6g throws up a possible output range of an indicative starting sentence of between 6 and 8 years’ of imprisonment when the sentencing framework is applied. An offender trafficking in 5g of heroin may be given an indicative starting sentence of 7 years’ imprisonment (ie, at the top end of the possible range). An offender trafficking in a higher amount of 6g of heroin may be given an indicative starting sentence of 6 years’ imprisonment (ie, at the lowest end of the possible range). The illogical and unprincipled result is that an offender trafficking in a smaller amount of heroin may be given a higher indicative starting sentence than one trafficking in a larger amount of heroin. Hence, a framework should not be designed such that a pinpoint input can give rise to a range output (ie, never a range output for a pinpoint input).
172 In any case, I re-emphasise that every offender must eventually be sentenced to one final precise pinpoint sentence at the end of the sentencing process even if a court, in the exercise of its sentencing discretion, is not able to come to a more precise determination as to the weight of all the factors relevant to determine more precisely where the key independent variables lie on their respective scales from the “very low level” to “very high level” as set out in the first stage of the sentencing framework.
(5) Illustrating the Proportionality and Continuity principles
173 I provide pictorial representations of Single and Double Variable Sentencing Frameworks that comply with the Proportionality and Continuity principles.
174 One way of representing the spread of sentences within a Single Variable Framework is a 2D graph – there is only one independent variable that independently determines the indicative starting sentence.
Figure 3: Graphical representation of Single Variable Framework
175 It can be seen from the curve that: (a) the increase in indicative sentence is smooth and continuous (ie, there must not be unexplained gaps or discontinuities); and (b) the increase slows and tapers off to a constant value which represents the statutorily prescribed maximum sentence for the most egregious forms of offending. For every precise point along the scale of the independent variable, there is only one corresponding indicative starting sentence along the scale for the indicative starting sentence, which is defined by the bold continuous line showing the relationship/correlation between the independent variable and the dependent variable. A precise point output is labelled “Point Output” on the vertical axis of the graph. It occurs if there is a “Point Input” as labelled on the horizontal axis of the graph. However, if there is range of uncertainty for the “input” for the independent variable, the input will be a “Range Input” as labelled on the horizontal axis, and the same graph will provide a “Range Output” for the dependent variable as labelled on the vertical axis which represents the range of possible values for the indicative starting sentence.
176 I should explain that the independent variable cannot start from zero. This is because when the independent variable is zero (or infinitesimally close to zero), no offence may be committed in the first place, and, as such there is no indicative sentence. An example of this is when a person is alleged to have trafficked in in 0g of diamorphine.
177 In designing a Single Variable Framework, the manner in which the sentences are spread out determines the gradient of the line graph. Taking the offence of smuggling uncustomed tobacco products as an example, it is well within the discretion of the court when designing a Single Variable Framework to decide that the bulk of the indicative sentencing range must be reserved for more severe forms of the offence (ie, larger quantities of cigarettes). This would mean that when the cigarette quantities are low, the indicative starting sentence will increase slowly (ie, with a gentler gradient), but when cigarette quantities are high, the indicative sentence will increase much faster (ie, with a steeper gradient). While the gradient of the line graph can change, it should generally be positive because the indicative starting sentence must increase in proportion to the severity of the crime, at least until the statutorily mandated maximum sentence. At that point, gradient is zero because the sentence can no longer increase further. What is clear is that the gradient cannot and must not be negative, because that will mean that as the quantity of cigarettes increases along the horizontal axis, the indicative starting sentence deceases along the vertical axis of the graph. This is wholly illogical and inconsistent with the Proportionality principle, and the design of the sentencing framework is therefore inherently flawed.
178 The visual representation of a Double Variable Framework is more complex. One way of representing the spread of indicative sentences within a Double Variable Framework is a 3D model or graph because three axes are needed: two “x” and “y” horizontal axes for the two independent variables and a third “z” vertical axis for the singular dependent variable (ie, the indicative starting sentence). The values ascribed along the “x” and “y” axes to represent each of the two independent variables determine the value of the dependent variable. In a 3D model that adheres to the Proportionality and Continuity principle, instead of a line generally trending upwards in a line graph pictorially representing a Single Variable Framework, there will be a surface generally trending upwards (never downwards) in a 3D model or 3D graph pictorially representing a Double Variable Framework (see Figure 4 below at .)
179 Below (Figure 4) is a 3D model to help visualise how the upwards sloping surface represents the indicative starting sentences in a harm-culpability matrix that complies with the Proportionality and Continuity Principles. The independent variables on the horizontal “x” and “y” axes are “harm” and “culpability” respectively on an increasing scale of severity extending outwards in the direction as shown, and the dependent variable will be the “indicative starting sentence” on the vertical “z” axis increasing in severity vertically upwards in the direction as shown. The positive gradient of the upwards sloping surface ensures that no embedded illogicality arises by way of a decreasing starting indicative sentence as the gravity of the harm and/or culpability increases in the Double Variable Framework.
Figure 4: Graphical representation of Double Variable Sentencing Framework
180 Each of the yellow dots represents a single unique combination of harm and culpability each with its own specified level of severity, and which reflects the factual matrix of a particular offender’s offence.
181 Four observations may be made from the 3D model above:
(a) First, the indicative starting sentences increase smoothly and continuously as each of the two independent variables (eg, harm and/or culpability) increases in magnitude. This can be seen by the constantly upward sloping 3D surface. The direction of the three arrows on the model indicates increasing magnitude.
(b) Second, the indicative starting sentences increase until they reach a maximum value as represented by the flat expanding top of the 3D surface. As with the 2D graph, this represents the maximum sentence prescribed by Parliament. The flat top is expanding to represent the fact that when either one or both independent variables tend to infinity (eg, infinite harm and/or infinite culpability), the indicative starting sentence remains capped at the statutorily prescribed maximum. In such a situation, even if the one independent variable remains at a low value (eg, low culpability) but the other independent variable is at a very, very high level (eg, a very extreme level of harm approaching infinite harm), the indicative starting sentence can theoretically approach and may even reach the statutory maximum (as represented by the overhanging surface when culpability is near zero but harm tends towards infinity).
(c) Third, for illustration purposes, the 3D surface is divided up into different colours. This is meant to show that the indicative starting sentence is changing smoothly and continuously all along the 3D surface in any direction. Each part of the 3D surface can also be divided into a series of different lines, with each line joining all the points of the same vertical height measured along the vertical “z” axis (ie, akin to the contour lines of equal elevation in a topographic map) and each of these lines of equal elevation on the 3D surface will represent a different indicative starting sentence. The higher the elevation of the line, the greater the indicative starting sentence on the 3D model represented by that line. For illustration purposes, I have drawn out just two of the numerous lines of different indicative starting sentences (ie, the two red lines joining the yellow dots together). I term these “Elevation Lines of Equal Sentences” because the indicative starting sentence is the same along each and every point on each of those red lines. Each part of the red line is at same vertical height. In other words, while each combination of the two independent variables must yield a single indicative sentence, certain combinations may yield the same indicative starting sentence because they result in offences of the same overall severity. For instance, one point on the 3D surface representing a certain harm-culpability combination can have a higher harm but a lower culpability than another point on the 3D surface for another harm-culpability combination. As a result, there may be no change in the overall criminal severity between these two points because the effects of one independent variable increasing in severity is cancelled out by the effects of the other independent variable decreasing in severity. Accordingly, all the points on the 3D surface with the same indicative starting sentence may be joined up together to form one continuous contour line representing the same elevation, so to speak. This is represented by the numerous yellow dots (ie, different combinations of harm and culpability resulting in offences of the same severity and hence the same indicative sentences) joined together by a single red line. I elaborate on this below at  onwards.
182 I have previously explained how the steepness of the gradient of the 2D line graph will show how fast the indicative starting sentence increases with the severity of the offence (as determined by the single key independent variable chosen for a Single Variable Framework, eg, the weight of the drugs or the quantity of contraband cigarettes). The same applies here in respect of the gradient of the 3D surface for a Double Variable Framework. The steeper the slope of the 3D surface, the faster the indicative starting sentence increases for every corresponding increase in the severity of the offence (as determined by the combination of two key independent variables of harm and culpability).
183 To aid the reader in visualising the Double Variable Framework, I provide a picture of a physical mock-up of Figure 4. The flat expanding top representing the maximum sentence prescribed by Parliament (see [181(b)] above) has been omitted so as to focus the reader’s attention on the constantly upward sloping 3D surface representing the smooth increase of the indicative starting sentences as the severity of the two independent variables (ie, harm and culpability) increases (see above at [181(a)]).
184 I should explain that the above two diagrams and the image are merely pictorial representations to help in the conceptual understanding of how the spread of sentences in a Single or Double Variable Framework will generally look like. They are only conceptualvisualisation tools to explain the operation of the Proportionality, Continuity, Completeness and Single Point principles, which must be complied with when designing sentencing frameworks. I have described them as conceptual visualisation tools because they have not been filled with any content or specific information such as the nature of the offence, the indicative sentencing range and the maximum sentence.
(6) The concept of Elevation Lines of Equal Sentences
185 I previously alluded to the notion of Elevation Lines of Equal Sentences which exist in a Double Variable Framework.
186 Very briefly, the term “Equal Sentences” refers to the indicative starting sentences being the same. The term “Elevation Lines” refers to how they are represented on a 3D surface like those seen above in Figure 4. The magnitude of the indicative starting sentence is represented as the elevation or height on the vertical axis or the “z” axis. As such, when the 3D surface tilts upwards, the indicative starting sentence on each point on that 3D surface will increase as the elevation height of that point on the 3D surface increases. The vertical axis is made up of a range of values that represent the entire sentencing range for the offence – eg, in the context of ss 6(a) and 6(b) of the PCA, the “z” axis values will reflect the indicative imprisonment range from zero to a maximum of 5 years.
187 As mentioned previously, different combinations of the two independent variables (ie, combinations of different levels of the two parameters of harm and culpability) will give rise to offences of varying severities (and hence different indicative starting sentences). Some combinations of the two independent variables may give rise to offences of the sameseverity (and hence same indicative starting sentence). When these combinations of independent variables are portrayed on a 3D model, they will all be points on the same level or at the same height on the vertical “z” axis, therefore showing that they have same indicative starting sentences. Visually, this will look like a line of points of equal height on the vertical “z” axis much alike the contour lines of equal elevation on a topographic map, hence the term “Elevation Lines of Equal [indicative starting] Sentences”.
188 The concept of Elevation Lines of Equal Sentences is simply the idea that different combinations of the two independent variables in a Double Variable Framework can give rise to the same indicative starting sentence because they result in offences of the same overall level of criminal severity.
The appropriate type of framework for ss 6(a) and 6(b) of the PCA
189 Corruption offences take place under a wide variety of factual situations and circumstances, even in the purely private sector context. Our courts have also recognised a number of key factors (eg, quanta of bribes, the involvement of a strategic industry, corruption of foreign public officials, the presence of threats and coercion) which have a significant impact on the severity of the offence, and hence the indicative starting sentence.
190 In this light, I agree with the Prosecution that Ishibe’s graphical approach (which is in essence a Single Variable Framework) premised on the use of the bribe quantum as the single independent variable to derive an indicative starting sentence may not give a good correlation of the seriousness of the offence with the indicative starting sentence because regard ought to be given to other more weighty sentencing parameters that affect the seriousness of the offence. While the quantum of gratification may be set as a sentencing parameter in a framework, and is an important sentencing factor in its own right, it may not always be the predominant consideration in the sentencing analysis for corruption offences; depending on the precise factual matrix before the sentencing court, other factors like coercion and threats (see eg, Romel( supra)) may take centre stage.
Foot Note 103
DPP’s Subs 3 at para 46 – 49.
That said, I find Ishibe’s use of bribe quanta as a quantitative approach to sentencing under s 6(a) of the PCA to be an interesting idea.
191 I am also of the view that the use of a traditional sentencing matrix which focuses on only two key principal factual elements premised on two factors (as elucidated in Terence Ng ( supra) at ) is similarly incapable of fully encapsulating all the key sentencing factors that have an impact on the severity of the offence (this being distinct from the harm-culpability matrix in Logachev( supra)).
192 Given the fact-specific nature of corruption offences under ss 6(a) and 6(b) of the PCA, I was originally inclined to craft a Multi-Variable Framework akin to the points-based system I had devised in Lim Teck Kim( supra). To recap (see also – above), the points-based system identifies a number of key offence-specific factors that have an impact on the severity of the offence and ascribes to each of them a range of points. These points represent the intensity of that particular factor. The total number of points across all the key offence-specific factors are then tallied to obtain a rough approximation of the severity of the offence. This then corresponds to a particular indicative starting sentence. The points-based system is uniquely suited to offences that manifest in a large variety of ways. It allows the sentencing court to analyse a large number of key sentencing factors and weigh them individually. It results in an indicative starting sentence that is highly attuned to the facts of the case.
193 However, it is very difficult to devise a points-based system for offences under ss 6(a) and 6(b) of the PCA. Such a sentencing framework requires a court to determine the precise weight that ought to be placed on each key sentencing factor in the sentencing analysis relative to each of the other factors (as distinct from their individual magnitudes or intensities). The sentencing factors will then go towards determining the extent of the various sentencing parameters used to determine the severity of the offence (and hence the indicative starting sentence) in the framework. For example, assuming that a hypothetical offender has received a massive bribe of $10m from a private sector agent. Another hypothetical offender is a foreign official who receives a bribe of $10 in return for divulging highly confidential state secrets. Even assuming that both offenders are identical in all other respects, what weight is to be given to the sentencing factor of the quantum gratification as opposed to the involvement of foreign officials? No such relationship is forthcoming in the case law. Therefore, without an extensive database of very varied precedents to enable the relative weights of a variety of factors to be distilled from the “big data” so to speak, and to examine their relative influence on the seriousness of the offence and ultimately the indicative starting sentence to be determined, it is very challenging to design a points-based system for the wide factual spectrum of offences falling under ss 6(a) and 6(b) of the PCA.
194 In my judgment, an appropriate compromise solution is to adopt the Prosecution’s five-step framework (operating in two stages) which I am broadly in agreement with.
195 I term this a compromise solution because the Prosecution’s framework utilises a harm-culpability matrix to determine the indicative sentence. However, unlike a sentencing matrix which only has two principal factual elements, the Prosecution’s harm-culpability matrix is anchored on two principal agglomerated factual elements of harm and culpability (ie, two sentencing parameters), deriving each of these from the offence-specific factors found in each case. In other words, the Prosecution’s matrix allows the sentencing court to consider multiple offence-specific factors that go towards determining the extent of the harm and the culpability when determining the indicative starting sentence. Unlike the points-based system, the Prosecution’s sentencing framework does not set out the exact weight to be accorded to each offence-specific factor in determining the indicative sentence, but rather leaves it to the court’s discretion in each case.
196 As such, I agree with the Prosecution that its framework is capable of encapsulating the wide diversity of corrupt acts and varied factual situations in which purely private sector corruption may present itself.
Foot Note 104
DPP Subs 3 at para 37.
The consideration of both the weight and quality of factors that go towards harm and culpability at Steps 1 to 3 allows for a “general holistic assessment of the seriousness of the offence by reference to all the offence-specific factors” [emphasis in original] (Ye Lin Myint v Public Prosecutor  5 SLR 1005 (“Ye Lin Myint”) at ), as opposed to a consideration of one parameter like bribe-quantum, or two principal parameters premised on only two sentencing factors when determining the indicative starting sentence. This allows the indicative starting sentence to be highly attuned to the facts of the case.
197 In my view, the two-stage approach (ie, first considering offence-specific factors before turning to offender-specific factors, see – above) together with the Prosecution’s five-step framework is both intuitive and conceptually neat.
198 That being said, I do not agree with the structure and content of the Prosecution’s proposed table of indicative sentencing ranges, ie, the harm-culpability matrix. I am of the view that the Prosecution’s harm-culpability matrix has a number of inherent flaws which must be rectified.
199 Before explaining my views on this matter, I first make some conceptual clarifications about the Prosecution’s harm-culpability matrix as this will provide some context for the later discussion. In particular, these conceptual clarifications go some way to explain some of the flaws in the Prosecution’s harm-culpability matrix, and set the stage for the modified approach that I take.
200 For completeness, I add that Ishibe has also proposed a sentencing framework incorporating a harm-culpability matrix. However, I focus my attention on the Prosecution’s framework given his counsel’s confirmation that Ishibe is no longer proposing a sentencing framework. For the avoidance of doubt, the following analysis also applies to Ishibe’s framework.
Conceptual clarifications about the harm-culpability matrix
201 To reiterate, the harm-culpability matrix in the Prosecution’s framework takes the form of a nine-grid box. The indicative sentencing range of zero to 5 years’ imprisonment and/or fine under ss 6(a) and 6(b) of the PCA is split up into nine indicative sentencing ranges situated within each box. To determine the indicative sentence, one must consider the various offence-specific factors that go towards harm and culpability. Harm and culpability are thus the two principal factual elements (ie, independent variables) derived from these factors and used to determine the indicative starting sentence (ie, dependent variable). I make some observations about this approach.
202 First, it is of utmost importance to understand the concept that harm and culpability are continuousandindependent variables. They are independent variables in that they are parameters that operate separately and independently (of each other) to affect the indicative starting sentence. They are continuous in that they do not occur only in three discrete blocks of low, medium and high or slight, moderate and severe. Rather, they exist on a continuous spectrum that theoretically begins from zero and extends to infinity. This is because the offences under ss 6(a) and 6(b) of the PCA may be committed in a vast variety of ways, and correspondingly, be of vastly different severities. These severities cannot be forced into only three discrete categories of low, medium and high; or even nine further sub-divided and discrete categories of (a) low, medium and high in the low category; (b) low, medium and high in the medium category; and (c) low, medium and high in the high category, so on and so forth. This is why I describe them as being continuous independent variables that range in severity from very low to the very high in a continuous fashion, with no fixed categories or boxes as such. It is analogous to a line of continuously increasing severity, which comprises an infinite number of points of increasing severity adjacent to one another and packed very closely together to make up the said line.
203 This is a point that is often overlooked. There are a number of implications. One of them is that a sentencing court must recognise that even if two offenders fall within the same “box”, the offences committed may still be of varying severities within that “box”. For example, one offender may be in the lowest possible range within the medium-moderate box, while the other offender may be in the highest possible range within that the same box. They thus ought to be treated differently and accorded different indicative sentences. To illustrate this, consider the following box (Figure 5) for moderate harm and medium culpability in the Prosecution’s harm-culpability matrix:
Figure 5: Comparison between two offenders within the same box
The green dots represent two different offenders. The offender at the lower end of the moderate harm and medium culpability box (the lower left corner) should receive an indicative imprisonment of one year while the other offender (at the upper right corner) should receive two years according to range of indicative starting sentences provided for all offences falling within that box. Another implication of the fact that harm and culpability are continuous variables is that there is no leap in harm or culpability when going from, say, the lowest category to the middle one. Because harm and culpability are continuous variables, the increase in harm or culpability across the boundaries of these boxes is as smooth as the increase in harm or culpability within these boxes. This ties into my next observation.
204 Second, terms such as “low”, “medium”, or “high” are merely labels used to broadly refer to the level of harm and culpability present on the facts of a particular case. This is not a novel point and has been recently recognised by our courts (see for example, Wong Chee Meng( supra)at , Ye Lin Myint( supra)at ).
205 In a similar vein, while it may often be necessary to sub-divide the various degrees of harm and culpability into simple categories of low, medium and high when crafting a matrix (ie, the nine boxes representing different combinations of harm and culpability with different severities in the framework), this should be understood as a method of marking out generally how harm and culpability shift continuously and smoothly across the matrix in any direction (not merely just vertically and horizontally) rather than as an attempt to carve out nine discrete, non-overlapping blocks. There is a continuous increase in harm and culpability across these blocks, not jumps when the boundaries of these categories are crossed. In essence, the notion that there can only be nine possible combinations of harm and culpability for the purpose of obtaining an indicative starting sentence is wrong because there is in fact a whole canvas of continuous and adjacent points depicting all possible combinations of continuous harm and continuous culpability in each of the nine boxes in the whole harm-culpability matrix.
206 Third, it bears repeating that the purpose of Stage 1 of the Prosecution’s framework (see  above), comprising Steps 1 to 3 of the framework, is to derive a single indicative starting sentence for the offender based on one particular combination of a specific level of harm and culpability resulting from an assessment of all the relevant facts of the case. A sentencing court has the unfettered discretion to consider and weigh all the offence-specific factors going separately to harm and culpability that are present on the facts of the case. However, once it has completed the weighing exercise and reached a landing on a particular level of harm and culpability (if the court is able to do so), the Double Variable Framework of harm and culpability must provide one indicative starting sentence that is commensurate with the overall severity of the offender’s offence. This is the Single Point principle.
207 The Single Point principle does not, in any way, detract from the discretion of a sentencing court. To illustrate this, I use the example of two courts who separately try a hypothetical Offender A for an offence under ss 6(a) of the PCA using the Prosecution’s framework. The two courts are wholly entitled to come to different conclusions as to the severity of the offence committed by Offender A, after assessing the facts of the case and hearing the submissions of the parties, in the exercise of their discretion. However, if they make the exact same assessment of the severity of the offence (eg, by identifying the same level of harm and the same level of culpability with reference to the same sentencing framework), Offender A ought to receive the same indicative starting sentence because the indicative starting sentence is determined solely by reference to harm and culpability and nothing else at this first stage of the sentencing process. In other words, the discretion of the court lies in the assessment of how the offence-specific factors contribute to the severity of the offence through the independent variables of harm and culpability, but once a particular severity is arrived at, the court has to arrive at a particular indicative starting sentence by applying the framework.
Issues with the Prosecution’s harm-culpability matrix
208 Having set out some of the conceptual clarifications as groundwork, I turn now to explain the issues I have found with the Prosecution’s harm-culpability matrix. I reproduce the Prosecution’s harm-culpability matrix for ease of reference:
209 First, the Prosecution’s framework is incomplete as it is unable to account for situations involving harm or culpability that go beyond “high” or “severe”. As mentioned previously, harm and culpability are continuous independent variables that exist on a continuum given the vast number of possible fact scenarios that fall under ss 6(a) and 6(b) of the PCA. There may well be an abnormal case in which a private sector agent accepts a small bribe to do a seemingly innocuous act but ends up causing an industrial accident at a power plant that causes a massive explosion. At best, the Prosecution’s framework simply does not apply in such a situation because it is meant to cater to the vast majority of situations, not all situations falling under ss 6(a) and 6(b) of the PCA.
210 If that much is clear, no real problem exists. The problem, however, arises if a sentencing court assumes that it should still apply the framework – in such a case, the offender would fall in the low culpability and severe harm box where the highest prescribed indicative sentence is 2 years’ imprisonment. This is less than half of the statutory maximum of 5 years’ imprisonment. It should also be borne in mind that if there are no offender-specific factors that warrant an upward adjustment of the sentence at Step 4 of the Prosecution’s framework, the sentence will remain at 2 years’ imprisonment. This means that in cases where the severity of the harm tends to infinity while culpability remains low or moderate (and viceversa), the Prosecution’s sentencing framework (if applied in this manner) will artificially restrict the sentencing court’s discretion and guide it to impose an indicative starting sentence of a maximum of 2 years (see the range of sentence of 1 to 2 years imprisonment found in both the top left box and in the bottom right box), which is unlikely to be commensurate with the severity of the offence.
211 However, the first problem is not serious and is largely a problem of how the Prosecution’s matrix is used. It can be overcome by: (a) accepting that the Prosecution’s framework simply does not apply in cases that present extreme facts; or (b) expressly providing that when harm or culpability tend towards infinity, the indicative starting sentence would correspondingly tend towards the maximum sentence prescribed under s 6 of the PCA. That being said, although this is an issue of application, the design of the harm-culpability matrix can prevent this kind of misunderstanding. I bear this in mind in coming to the matrix which I propose below in expressly providing for potentially infinite harm and culpability (see ,  and  below).
(2) Problem 2: Underutilisation of the sentencing spectrum
212 Second, the Prosecution’s harm-culpability matrix fails to utilise the entire sentencing spectrum prescribed by Parliament. Section 6 of the PCA states that an offender:
… shall be liable on conviction to a fine not exceeding $100,000 or to imprisonment for a not exceeding 5 years or both. [emphasis added]
213 While the Prosecution’s harm-culpability matrix recognises the possibility of fine or imprisonment, it does not factor in the possibility that the appropriate indicative starting sentence can be a combination of both types of sentences. This is contrary to the Completeness principle (see  above) and creates gaps in the indicative sentencing as an entire type of indicative sentence (ie, a fine in addition to imprisonment) is almost completely missing without good reason.
214 This is most obvious at the high culpability, severe harm box (ie, the top right box). It does not seem right that if a sentencing court decides that the offence before it is so severe that it is one of the worst of its kind, it remains limited to an indicative sentence of 5 years’ imprisonment even though Parliament has decreed that a fine not exceeding $100,000 may also be levied in addition to an imprisonment term.
215 I reiterate that under the Prosecution’s framework, all the offence-specific factors are to be accounted for fully at the Steps 1 to 3 and nowhere else, especially not at Step 4 which is meant for offender-specific factors only. Even if the court subsequently imposes an additional fine of $100,000 after considering the offender-specific factors at Step 4, this is, in principle, different from a determination that the maximum sentence may well be warranted after a consideration of all the offence-specific factors.
216 That said, I recognise that in the absence of a concrete elucidation of the correlation between fines and imprisonment (eg, that a fine of $X is equivalent in its deterrent and punitive effect on an offender to an imprisonment term of Y months), it is incredibly difficult for a sentencing framework to be able to pinpoint an appropriate indicative starting sentence involving a custodial term and/or a fine. A simple solution in the interim is to state explicitly that the indicative sentencing ranges in all eight of the nine boxes of the harm-culpability matrix includes a possible fine from $0 up to $100,000 in addition to the imprisonment term in those boxes, as I do so in the matrices that I arrive at in this case (see [264(f)] and  below).
(3) Problem 3: Ambiguity
217 Third, there is ambiguity in the Prosecution’s harm-culpability matrix as it is commonly applied or interpreted, ie, without due regard to the conceptual clarifications that I have made at – above. This ambiguity presents itself at four intersection points of the boxes (highlighted in red and blue) within the nine-grid harm-culpability matrix as follows:
Figure 7: Illustration of ambiguity in the Prosecution's proposed harm-culpability matrix
218 I illustrate the ambiguity by using the intersection point coloured in blue. Given that harm and culpability exist on a continuum, it is not inconceivable that a particular combination of factors going to harm and culpability may cause an offender to fall squarely on the intersection points between the four boxes. I refer to this hypothetical offender as Offender B. There is ambiguity in the indicative starting sentence because three possible options are open for Offender B, depending on where Offender B is taken to land in the four boxes surrounding the intersection point:
(a) If he is taken to be part of the slight harm, low culpability box: a fine, presumably of $100,000, given that the severity of Offender B’s crime is the highest possible combination of slight harm and low culpability in the left bottom box.
(b) If he is taken to be in the moderate harm, medium culpability box: an imprisonment term of a year, given that the severity of Offender B’s crime is the lowest possible combination of moderate harm and medium culpability in the box in the middle of the matrix.
(c) If he is taken to be in the (i) moderate harm, low culpability box; or (ii) slight harm, medium culpability box: an imprisonment term that must be significantly less than a year. If the former, Offender B would be taken to have the harm caused that is the lowest possible in the “moderate” range but culpability is the highest possible in the “low” range. The 1-year indicative imprisonment term is reserved for offenders who present with the highest possible harm and culpability in the moderate harm, low culpability box, which is the bottom middle box in the matrix. For similar reasons, if Offender B is taken to fall within the slight harm, medium culpability box, his indicative imprisonment sentence must be significantly less than a year because the harm caused is the highest possible in the “slight” range, but culpability is the lowest possible in the “medium” range. The 1-year indicative imprisonment term is reserved for offenders who present with the highest possible harm and culpability in the slight harm, medium culpability box, which is the middle left box in the matrix.
219 It will be obvious that these options are mutually exclusive. Options (a) and (b) in particular, are quite far apart. This is a problem because it means that the three different courts may assess the same Offender B and arrive at the exact same decision in terms of the severity of his offence but may give him three drastically different indicative starting sentences. This cannot be explained away on the basis of the sentencing courts’ discretion.
220 The same ambiguity problem arises at each of the three other intersection points coloured in red in Figure 7 above.
221 This ambiguity is a fundamental flaw in the Prosecution’s sentencing framework. It arises because the sentencing framework is designed in such a way that presents these points of ambiguity as intersections between multiple possible combinations of different levels of harm and culpability. It appears to suggest that each of these points potentially represent multiple degrees of severity, and therefore, give rise to multiple possible sentences, which offends the Single Point principle – when in reality, they refer to the exact same point on the matrix with the same ascertained combination of factors going to the assessment of the degree of severity (ie, the values) for harm and culpability for that point. Further, the relative relationship between each of these intersections and the categories surrounding them is not made clear in such a sentencing framework. As commonly applied and interpreted, this gives more weight to the labels of slight, moderate, and severe harm; and low, medium, or high culpability, rather than the specific and determinate combinations of the values assessed for the two independent variables of harm and culpability. Hence, any given point appears to bear different significance depending on whether it is compared to the labels to the top and bottom, or left and right. It bears reminding that not all offences under ss 6(a) and 6(b) of the PCA necessarily fall neatly within one box. As mentioned previously, the labels of slight, moderate and severe for harm; and low, medium, high for culpability are merely labels used to broadly categorise the various levels of harm and culpability. Similarly, the nine boxes in the harm-culpability are also broad categorisations of the infinite number of possible combinations of harm and culpability for the offence. A sentencing framework should be designed to avoid these ambiguities and to reflect these conceptual clarifications.
(4) Problem 4: Cliffs and Discontinuities
222 Fourth, there are unexplained gaps in the indicative sentencing range in the Prosecution’s harm-culpability matrix. I will refer to these unexplained gaps as “cliffs” or “discontinuities”.
223 At first glance, the Prosecution’s harm-culpability framework appears to partially adhere to the Continuity principle by spreading out the entire range of possible imprisonment sentences across the full spectrum of offending under ss 6(a) and 6(b) of the PCA. All nine boxes in the matrix (excluding the first slight harm and low culpability box) appear to have continuous indicative sentencing ranges when one moves horizontally or vertically across the boxes.
224 I should explain that when I say “move across the boxes”, I mean that the court first considers a range of different offences that fall broadly within one box, and then moves on to consider more offences that fall broadly within another adjacent box. By way of illustration, as one moves horizontally from the “slight harm, medium culpability” box to the next box of “moderate harm, medium culpability” and finally to the third box of “severe harm, medium culpability”, the indicative imprisonment range increases smoothly from up to 1 year, 1 to 2 years, and finally, 2 to 3 years.
225 However, one is not restricted to moving horizontally or vertically across the harm-culpability matrix, one may also move diagonally.
(A) Diagonal cliffs
226 The first type of cliff arises when one moves diagonally within the harm-culpability matrix, ie, where both harm and culpability are increasing or decreasing at the same time. I refer to these cliffs as “diagonal cliffs” and they occur at the areas marked out with red arrows in Figure 8 below.
227 To illustrate the diagonal cliffs, I use hypothetical Offenders C and D. Their positions in the matrix are denoted by the blue dots marked with “C” and “D” in Figure 8. Offender C’s harm and culpability are assessed to be the maximum possible such that “C” can fall within the slight harm, medium culpability box. Offender D’s harm and culpability are assessed to be minimum possible for “D” to fall within the moderate harm, high culpability box. The levels of both harm and culpability have increased very slightly as one moves from considering Offenders C to D, ie, a diagonal shift upwards. Theoretically, given that harm and culpability are continuous independent variables in the Prosecution’s harm-culpability matrix, Offender D should receive a slightly higher indicative sentence than Offender C.
Figure 8: Illustration of cliffs and discontinuities in the Prosecution's proposed harm-culpability matrix
228 Referring to the harm-culpability matrix above, this is however not the case. Offender C’s indicative sentence is 1 year’s imprisonment as “C” is the most egregious offender falling within the box, whereas Offender D’s indicative sentence is 2 year’s imprisonment as “D” is the least egregious offender within the box. There is a large diagonal cliff because the indicative starting imprisonment term doubles without any apparent explanation even though the severity of the criminal conduct has only increased very slightly from Offender C to D, both of whom represent a single point of sentence on the continuous scales of harm and culpability.
229 As the indicative starting sentences do not increase smoothly and continuously, in proportion to the severity of the criminal conduct, the Prosecution’s harm-culpability matrix does not comply with the principles of Proportionality and Continuity. Such a gap cannot be remedied by having regard to Step 4 of the framework. The gap is in the indicative starting sentence which is determined solely by reference to the offence-specific factors. Step 4 is concerned with finalising the indicative starting sentence by having regard to the offender-specific factors. The considerations are entirely different.
230 Furthermore, the gap cannot be explained by reference to the fact that both harm and culpability have increased in tandem, in contrast to a situation where only harm or culpability increases. The Prosecution’s framework accords equal weight to harm and culpability, technically speaking an increase in harm by two units (culpability remaining constant), should be treated in the same way as an increase in culpability and harm by one unit each. Further, this gap also cannot be explained away simply by observing that there is an increase in both the categories of harm and culpability (from slight to moderate, and medium to high respectively). As observed earlier (see – above), these categories are just labels, and there should be no significance attached to the crossing of these thresholds. Hence, the focus should only be on the relative increases of harm and culpability between Offenders C and D, rather than the fact that Offender D is in a higher category for harm and a higher category for culpability.
(B) Linear discontinuities
231 The Prosecution’s harm-culpability matrix also has linear discontinuities. These occur along the lines that demarcate the nine boxes. In Figure 9 below, vertical linear discontinuities are represented by purple lines, and horizontal linear discontinuities are represented by blue lines. The indicative starting sentences of the most and least egregious offenders falling within each box (apart from the low culpability and slight harm box) are denoted respectively by the red and green dots. The hypothetical Offenders E, F and G are used to illustrate the two types of linear discontinuities.