Singapore Country Profile - MLA in Relation to Asset Recovery

1. Channels for transmission of MLA requests

Requests for mutual legal assistance may be sent directly to the Attorney-General’s Chambers of Singapore (AGC). The responsible staff of the Criminal Justice Division of AGC will handle and processes all formal requests for assistance. Namely, it will arrange authorisation of the request, appoint law enforcement officers to assist in execution, draft applications to court and appear as legal counsel to argue the case as necessary.

In case of urgent requests for mutual legal assistance, a copy of the request may also be sent by fax to +65 6332 5934. It should be noted that Singapore legislation does not explicitly regulate the issue of responding to urgent MLA requests. However, under Section 19 of MACMA, the requesting State should submit details of the period within which that country wishes the request to be met together with the MLA request. Therefore, in principle, any time requirements indicated thereto will be taken into account. Furthermore, according to the report of Singapore to the Secretariat of the ADB/OECD Anti-Corruption Initiative for Asia and the Pacific in 2007, in case of time-sensitive requests, it is possible to obtain hearings dates through a facilitated/urgent procedure or make applications to court on short notice depending on the case at hand and its complexity. As the report further provides, domestic competent authorities have accelerated the process of assistance when the MLA request concerned application for production orders and seizure of assets.

AGC also may accept the MLA requests received via facsimile or email provided that the request State will submit the original request via the regular channels within the time limits set.

Requests need not be sent through the consular or diplomatic channel to Singapore.  They may be sent directly by the central authority of the requesting State that is competent to make international requests for mutual legal assistance.

Countries with which Singapore has a Mutual Legal Assistance Treaty should also comply with any relevant provisions of the Treaty as regards transmission of requests.

Incoming MLA requests are kept confidential.

2. Specific acts of assistance in the context of mutual legal assistance

At the request of a foreign State, Singapore may provide for mutual legal assistance in identification, tracing, seizure of the proceeds of the offence of corruption and other related crimes with the view of forfeiture and return to the requesting State or to the persons entitled.

Pursuant to the MACMO, a foreign State may formally request Singapore to provide a broad range of legal measures, both coercive and non-coercive, related to the recovery of the proceeds of criminal acts, including:

1. Taking of evidence (Section 21);
2. Obtaining production orders (Sections 22 and 23);
3. Attendance of a person in Singapore (Section 9) and arranging persons to travel to assist in foreign country (Section 26);
4. Custody of persons in transit (Section 27);
5. Enforcement of foreign confiscation orders and obtaining restraint orders (Section 29);
6. Search and seizure (Section 33);
7. Identifying or locating persons (Section 37);
8. Service of documents (Section 38).

3. Principles of Mutual Legal Assistance in Singapore

The Singapore system of international co-operation in criminal matters is guided by such fundamental principles as reciprocity, dual criminality, specialty. The competent authorities of Singapore are bound by these fundamental principles in the execution of mutual assistance requests.

a) Principle of reciprocity

As a rule, Singapore requires the requesting State to provide reciprocal assistance as a precondition for granting mutual legal assistance in cases, which require provision of coercive and non-coercive measures in Singapore. Reciprocity exists where Singapore has a treaty relationship, memorandum of understanding or other agreements with a requesting State, i.e., a 'prescribed foreign country' under Section 17(1) of MACMA. Where no treaty or any other binding arrangements exists between Singapore and the requesting State, Singapore may still provide mutual assistance in criminal matters on the basis of the domestic legislation upon a guarantee of reciprocity is assured by the requesting State to the Attorney-General of Singapore pursuant to Section 16(2) of MACMA.

Still, under Section 18 of MACMA, provision of MLA assistance maybe subject to certain conditions which are determined by the Attorney-General on a case-by-case basis.

b) Principle of dual criminality

Dual criminality is another mandatory requirement for requests for legal assistance from a foreign State. Accordingly, the act or omission underlying the request, if it had occurred in Singapore, must constitute an offence as provided for in the First and Second Schedules of the Corruption, Drug trafficking and Other Serious Crimes (Confiscation of Benefits) Act (Chapter 65) (CDSA). The Second Schedule of the CDSA covers the crime of corruption and related offences. Provision of MLA in cases of illicit enrichment, which is per se is not a criminal offence in Singapore, may be granted as well. In this case, the Singaporean authorities may rely upon a practical measure to circumvent that situation, i.e., the conduct-based definition of dual criminality, as also required under Article 43(2) of the UNCAC. Also, as there is the criminal liability of legal persons in Singapore, the domestic authorities may grant MLA in proceedings against legal persons.

c) Principle of speciality

Principle of speciality is also to be observed. This principle requires that MLA is granted under condition that a requesting State uses any evidence obtained pursuant to a particular MLA request solely for the investigative purposes of the request in connection to with criminal proceeding relating to an offence for which assistance is admissible. The Attorney-General of Singapore may be asked for any exceptions in a particular case. Also, the MLA authority of the requesting state should make a mandatory assurance that if the Attorney-General of Singapore requires the return of any evidence obtained pursuant to this request at the conclusion of a particular criminal investigation and of all consequential appeals the evidence to be returned to the Attorney-General of Singapore.

The Singapore authorities formally impose the "Mandatory Assurance and Undertakings" upon the requesting State in the formal request forms for mutual legal assistance.

4. Form and contents of MLA requests

What language may requests to the Central Authority be made in?

Foreign requests shall be reduced to writing only. Requests and their enclosures shall be submitted in one of four official languages in Singapore - Mandarin, Malay, Tamil and English – or be accompanied by a translation thereto.

a) The contents of a letter of request

In order for the MLA request to be declared admissible, it has to meet the formal content requirements as stipulated under Section 19 of MACMA. For the sake of simplicity in presentation, these requirements are categorized in this Country Profile as essential and additional. Please, note that such categorization is not explicitly made in the text of the MACMA.

Essential requirements

• Purpose of the request and the nature of the assistance being sought;
• Information identifying a person or authority that initiated the request;
• A description of the nature of the criminal matter and a statement setting out a summary of relevant facts and laws;

Additional requirements

To determine the legal qualification of the offence, the following information shall be added to the request:

1. A certificate from the appropriate authority that country that the request is made in respect of a criminal matter;
2. A description of the offence to which the criminal matter relates, including maximum penalty.

The following information on matters of procedure shall be added to the request:

1. Details of the procedure that the requesting State wishes Singapore to follow, including details of the manner and form in which any information or thing is to be supplied to the requesting State pursuant to the request;
2. A statement setting out the wishes of that country concerning the confidentiality of the request and the reason for those wishes;
3. Details of the period within which that country wishes the request to be met.

The requesting State is also expected to submit particular information if the requests relate to provision of assistance by Singapore in

• (a) tracing of property;
• (b) confiscation of criminal proceeds; and
• (c) if the request involves a person traveling from Singapore to the requesting State.

See Section 19 of MACMA for further details.

The requesting State is also expected to provide:

1. Any other information required to be included with the request under the treaty, memorandum of understanding or other agreements between Singapore and the requesting State;
2. Any other information that may assist in giving effect to the request or which is required under the provision of this Act.

The staff of the AGC responsible for MLA may assist foreign States that wish to request cooperation from Singapore to prepare the requests, i.e., examining and commenting on draft MLA requests. The AGC welcomes any queries sent via post, fax or email at agc@agc.gov.sg.

b) Grounds for refusal to grant MLA

Grounds for refusal to grant cooperation in criminal matters are stipulated in Section 20 of MACMA. Some, but not all, of the grounds are provided for below.

1. A failure to comply with the terms of any treaty, memorandum of understanding or other agreement between Singapore and the requesting State, i.e., ‘prescribed country’ could be a ground for denying cooperation in criminal matters.
2. Singapore may refuse to grant MLA if the investigation, prosecution or punishment of a person relates to ‘an offence of political character’. According to a country report submitted to ADB/OECD Anti-Corruption Initiative for Asia and Pacific in 2007, the government of Singapore states that it has never refused MLA on this basis. As the report explains, under Singaporean jurisprudence, an offence has a political character if ‘the only purpose sought to be achieved by the offender in committing it was to change the government of the state in which it was committed, or to induce it to change its policy, or to enable him to escape from the jurisdiction of a government of whose political policies the offender disapproved but despaired of altering so long as he was there’ (Kangu v. Director of Prisons, [1996] 2 S.L.R. 747, citing R. v. Governor of Pentonville Prison, Ex p.Cheng, [1973] A.C. 931 (H.L) per Lord Diplock). In the light of this interpretation, the underlying offence of corruption is less likely to be considered as a ‘political offence’ by the Singaporean courts.
3. The Attorney General is not bound to honour the request if the offence in question, if it had occurred in Singapore would have constituted an offence under military law.
4. The requesting State will not be granted cooperation in criminal matters if there substantial grounds for believing that the request wasmade for the purpose of prosecuting, punishing or otherwise causing prejudice to a person on account of that person’s race, religion, sex, ethnic origin, nationality or political opinions.
5. Cooperation in criminal matters may be denied by reason of double jeopardy. It means that requests relates to the investigation, prosecution or punishment of a person for an offence in a case where the person has been convicted, acquitted or pardoned by a competent court or other authority of the requesting State or has undergone the punishment provided by the laws of the requesting State, in respect of that offence or of another offence constitute by the same act or omission as that offence.
6. MLA requests will not be granted if the requirements of dual criminality and reciprocity are not satisfied (see text on the principles of MLA in Singapore above).
7. Cooperation in criminal matters may be denied and the Attorney General is instructed not to act upon the MLA request if ‘essential interests’ are involved. These interests are interpreted to include the interests of sovereignty, security and public order. MLA requests are also refused if they are contrary to public interests.

Section 20 of MACMA provides for additional discretionary grounds for refusal to grant MLA.  MLA request is refused if the Attorney General is of the opinion that provision of the assistance would impose an excessive burden on the resources of Singapore. The Attorney General has the power to refuse to grant MLA if the provision of mutual assistance could prejudice an on-going criminal matter in Singapore.

Lastly, as the country report of Singapore to the ADB/OECD Anti-Corruption Initiative for Asian and the Pacific indicates, Singapore will refuse to grant MLA if the evidence requested is not of sufficient importance to the foreign investigation, or of the evidence could reasonably be obtained by other means. Thus, necessity and the importance of the evidence sought through the MLA requests are important factors in MLA requests.

c) The procedure to be followed

Pursuant to Section 41 of the MACMA, the Attorney-General shall notify the Minister of every foreign MLA request received by the MLA central authority. The notice is given as soon as reasonably practicable after receipt of the request and before the request is processed. Upon the receipt of all the necessary information, as listed under Section 41 (2)(c) of the MACMA, the Minister will take a decision on whether to proceed or not with the request.

After a decision to proceed is made, the AGC reviews and executes the request with the assistance of relevant law enforcement authorities.