SINGAPORE Law and Practice Contributed by: Jason Lim, Sreenivasan Narayanan SC and Palaniappan Sundararaj, Sreenivasan Chambers LLC
Sreenivasan Chambers LLC 96 Robinson Road #15-02 SIF Building Singapore 068899 Tel: +65 6031 1577 Email: kylegabriel@sreenivasanchambers.com Web: www.sreenivasanchambers.com
1. Legal Framework and General Principles 1.1 Scope of Financial Crime and General Criminal Law Principles There is no statutory definition of the term “financial crime”. This term is a descriptor of various offences including, but not limited to, fraud, cheating, criminal breach of trust, bribery and corruption, money laun - dering, market abuse, sanctions-related offences, tax evasion, trade mark and copyright infringement and cyber-enabled financial crime. Constituent Elements of an Offence Generally, an offence requires both the actus reus and mens rea to be proven beyond reasonable doubt. The actus reus refers to the prohibited act or omission. The mens rea refers to the requisite mental element (ie, the state of mind), which can be intent or even reckless - ness or negligence. However, mens rea is not required for certain offences. Such offences are known as strict liability offences and are often regulatory in nature. Depending on the offence-creating action, it may be a defence if the per - son alleged of committing such an offence had exer - cised reasonable care. Certain statutes also provide for presumptions of knowledge or intent, with the bur - den of proof then placed on the accused to rebut such knowledge or intent, on the balance of probabilities. Intent, Recklessness or Negligence The requisite mens rea (ie, state of mind) varies across financial crime offences. Some financial crime offenc - es require proof of specific intent while others require only proof of wilfulness, knowledge, rashness or neg -
ligence. The definitions of the various states of mind are set out in Sections 26C to Section 26F of the Penal Code 1871 (PC). An act is done “intentionally” where it is the accused’s conscious objective to bring about a particular result. An act is done “knowingly” where the accused is aware of the relevant facts or circumstances. Rashness involves conscious risk-taking, where the accused proceeds despite being aware of a risk. Negligence generally bears the same meaning as in tort, and is often a fact-specific ingredient of an offence. Attempt, Abetment, Conspiracy and Inchoate Offences The PC provides for inchoate offences, including attempt and conspiracy. Section 511 of the PC pro - vides that whoever attempts to commit an offence punishable by the PC or by any other written law, and in such attempt does any act towards the commission of that offence, shall be liable for punishment as pro - vided for the offence. An attempt is punishable even if the offence is not ultimately completed. The courts have held that the accused must have had the inten - tion to commit the offence and taken a “substantial step” towards committing the offence. Abetment of offences are punishable under Section 109 of the PC, and defined in Section 107. Abetment arises where the abettor aids or instigates the primary offence or where the abettor is a party to a conspiracy which results in the primary offence. Criminal conspiracy is by itself also a distinct offence under Section 120A of the PC. A conspiracy arises where two or more persons agree to do, or cause to
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