Criminal Procedure Code 2010 - Singapore Statutes Online

PART 7A

DEFERRED PROSECUTION AGREEMENTS

Interpretation of this Part

149A. In this Part —

“alleged offence” means an offence specified in the Sixth Schedule;

“deferred prosecution agreement” or “DPA” means an agreement entered into between the Public Prosecutor and a person who has been charged with, or whom the Public Prosecutor is considering prosecuting for, an alleged offence, under which —

(a)	the person agrees to comply with the requirements imposed on the person by the agreement; and
(b)	the Public Prosecutor agrees that, upon the approval of the agreement by the General Division of the High Court under section 149F, sections 149C and 149I apply in relation to the prosecution of the person for the alleged offence;

“give public notice”, in relation to a matter, means to cause a notice of the matter to be published in the Gazette;

“subject” means a person who enters into a DPA with the Public Prosecutor.

[19/2018; 40/2019]

Entering into DPA, etc.

149B.—(1) A DPA may be entered into in respect of any alleged offence, whether alleged to have been committed before, on or after 31 October 2018.

[19/2018]

(2) A DPA in respect of an alleged offence —

(a)	may be entered into before, on or after the date on which a subject is charged with the alleged offence; but
(b)	cannot be entered into after the commencement of the trial for that alleged offence. [19/2018]

(3) One DPA may be entered into in respect of 2 or more different alleged offences.

[19/2018]

(4) A person may choose whether to enter into a DPA with the Public Prosecutor.

[19/2018]

(5) Before a DPA is in force, any party to the DPA may withdraw from any negotiation concerning the DPA, from the DPA itself, and from any proceeding under section 149F relating to the DPA, without giving any reason for the withdrawal.

[19/2018]

Effect of DPA on court proceedings while DPA is in force

149C. After a DPA is entered into between the Public Prosecutor and a subject in respect of an alleged offence, the following apply:

(a)

if the subject has been charged with the alleged offence, the subject is deemed to have been granted a discharge not amounting to an acquittal in relation to the alleged offence, when the DPA comes into force;

(b)

while the DPA is in force, the subject cannot be prosecuted for the alleged offence in any criminal proceedings;

(c)

while the DPA is in force, any limitation period or time limit for the commencement of any of the following matters is suspended:

(i)

the prosecution of the alleged offence;

(ii)

any civil penalty action in respect of the alleged offence;

(iii)

any proceedings for an order for disgorgement of a benefit derived from the alleged offence;

(iv)

any proceedings for the confiscation of any property that —

(A)	is used, or intended to be used, for the commission of the alleged offence; or
(B)	constitutes a benefit derived from the alleged offence;

(v)

any disciplinary proceedings, or other proceedings relating to the imposition of any regulatory measure, under any written law, that arise from the facts of the alleged offence.

[19/2018]

Persons who may enter into DPA with Public Prosecutor

149D.—(1) A subject may be a body corporate, a limited liability partnership, a partnership or an unincorporated association, but cannot be an individual.

[19/2018]

(2) In the case of a DPA between the Public Prosecutor and a partnership —

(a)	the DPA must be entered into in the name of the partnership (and not in the name of any of the partners); and
(b)	any money payable under the DPA must be paid out of the funds of the partnership. [19/2018]

(3) In the case of a DPA between the Public Prosecutor and an unincorporated association —

(a)	the DPA must be entered into in the name of the association (and not in the name of any of its members); and
(b)	any money payable under the DPA must be paid out of the funds of the association. [19/2018]

(4) A subject must be represented by an advocate at the time the subject enters into a DPA.

[19/2018]

Content of DPA

149E.—(1) A DPA must contain —

(a)	a charge or draft charge (prepared by the Public Prosecutor) relating to the alleged offence; and
(b)	a statement of facts relating to the alleged offence, which may include admissions made by the subject that enters into the DPA. [19/2018]

(2) A DPA must specify a date (called in this Part the expiry date) on which the DPA ceases to have effect if the DPA is not already terminated under section 149G.

[19/2018]

(3) The requirements that a DPA may impose on the subject that enters into the DPA include, but are not limited to, the following requirements:

(a)

to pay to the Public Prosecutor a financial penalty;

(b)

to compensate victims of the alleged offence;

(c)

to donate money to a charity or any other third party;

(d)

to disgorge any profits made by the subject from the alleged offence;

(e)

to implement a compliance programme, or make changes to an existing compliance programme, relating to the subject’s policies or to the training of the subject’s employees or both;

(f)

to appoint a person —

(i)	to assess and monitor the subject’s internal controls;
(ii)	to advise the subject, and the Public Prosecutor, of any improvements to the subject’s compliance programme that are necessary, or that will reduce the risk of a recurrence of any conduct prohibited by the DPA; and
(iii)	to report to the Public Prosecutor any misconduct in the implementation of the subject’s compliance programme or internal controls;

(g)

to cooperate in —

(i)	any investigation relating to the alleged offence; and
(ii)	any investigation relating to any possible offence, committed by any officer, employee or agent of the subject, that arises from the same or substantially the same facts as the alleged offence;

(h)

to pay any reasonable costs of the Public Prosecutor in relation to the alleged offence or the DPA.

[19/2018]

(4) A DPA may impose time limits within which the subject of the DPA must comply with the requirements imposed on the subject.

[19/2018]

(5) A DPA may include a term setting out the consequences of a failure by the subject of the DPA to comply with any of its terms.

[19/2018]

Court approval of DPA

149F.—(1) When the Public Prosecutor and the subject have agreed on the terms of a DPA, the Public Prosecutor must apply by criminal motion to the General Division of the High Court for a declaration (called in this section the relevant declaration) that —

(a)	the DPA is in the interests of justice; and
(b)	the terms of the DPA are fair, reasonable and proportionate. [19/2018; 40/2019]

(2) At the hearing of an application under subsection (1) —

(a)

the Public Prosecutor and the subject may submit on the application jointly or separately; and

(b)

the General Division of the High Court may —

(i)

make the relevant declaration;

(ii)

refuse the application; or

(iii)

adjourn the hearing of the application —

(A)	for the Public Prosecutor and the subject to amend the DPA; or
(B)	for any other reason. [19/2018; 40/2019]

(3) A DPA comes into force only when the General Division of the High Court approves the DPA by making the relevant declaration.

[19/2018; 40/2019]

(4) An application under subsection (1) must be heard and dealt with in private.

[19/2018]

[Act 25 of 2021 wef 01/04/2022]

(5) Upon the General Division of the High Court making a relevant declaration, the Public Prosecutor must give public notice of the following, unless the Public Prosecutor is prohibited from doing so by or under any written law or by an order of the General Division of the High Court under section 149J(1) or (2):

(a)	the DPA to which the relevant declaration relates;
(b)	the relevant declaration;
(c)	if any reasons are given by the General Division of the High Court for its decision to make the relevant declaration, those reasons. [19/2018; 40/2019]

(6) A refusal by the General Division of the High Court of an application under subsection (1) in respect of a DPA entered into between the Public Prosecutor and a subject in respect of an alleged offence, does not prevent the Public Prosecutor from making another application under that subsection, for a relevant declaration in respect of a different DPA entered into with the same subject in respect of the same alleged offence.

[19/2018; 40/2019]

Breach of DPA

149G.—(1) If the Public Prosecutor believes that the subject that entered into a DPA has failed to comply with the terms of the DPA, the Public Prosecutor may make an application to the General Division of the High Court under this section.

[19/2018; 40/2019]

(2) On an application under subsection (1), the Public Prosecutor must prove, on a balance of probabilities, that the subject that entered into a DPA has failed to comply with the terms of the DPA.

[19/2018]

(3) If the General Division of the High Court is satisfied that the subject that entered into a DPA has failed to comply with the terms of the DPA, the General Division of the High Court must terminate the DPA.

[19/2018; 40/2019]

(4) Where the General Division of the High Court decides that the subject that entered into a DPA did not fail to comply with the terms of the DPA, the Public Prosecutor must give public notice of the following, unless the Public Prosecutor is prohibited from doing so by or under any written law or by an order of the General Division of the High Court under section 149J(1) or (2):

(a)	the decision of the General Division of the High Court;
(b)	if any reasons are given by the General Division of the High Court for that decision, those reasons. [19/2018; 40/2019]

(5) Where the General Division of the High Court terminates a DPA under subsection (3), the Public Prosecutor must give public notice of the following, unless the Public Prosecutor is prohibited from doing so by or under any written law or by an order of the General Division of the High Court under section 149J(1) or (2):

(a)	the fact that the DPA has been terminated by the General Division of the High Court following a failure by the subject that entered into the DPA to comply with the terms of the DPA;
(b)	if any reasons are given by the General Division of the High Court for its decisions under subsections (2) and (3), those reasons. [19/2018; 40/2019]

(6) Where the General Division of the High Court terminates a DPA under subsection (3), the subject —

(a)	is not entitled to recover any money that the subject had paid, before the termination, pursuant to any requirement imposed by the DPA; and
(b)	is not entitled to any relief for any detriment caused to the subject by the subject’s compliance with the terms of the DPA before the termination. [19/2018; 40/2019]

Variation of terms of DPA

149H.—(1) At any time when a DPA is in force, the Public Prosecutor and the subject that entered into the DPA may agree to vary the terms of the DPA.

[19/2018]

(2) When the Public Prosecutor and the subject that entered into a DPA have agreed to vary the terms of the DPA, the Public Prosecutor must apply by criminal motion to the General Division of the High Court for a declaration (called in this section the relevant declaration) that —

(a)	the variation is in the interests of justice; and
(b)	the terms of the DPA as varied are fair, reasonable and proportionate. [19/2018; 40/2019]

(3) A variation of the terms of a DPA only takes effect when the General Division of the High Court approves the variation by making the relevant declaration.

[19/2018; 40/2019]

(4) Where the General Division of the High Court decides to approve the variation, the Public Prosecutor must give public notice of the following, unless the Public Prosecutor is prohibited from doing so by or under any written law or by an order of the General Division of the High Court under section 149J(1) or (2):

(a)	the DPA as varied;
(b)	the relevant declaration;
(c)	if any reasons are given by the General Division of the High Court for its decision to make the relevant declaration, those reasons. [19/2018; 40/2019]

(5) Where the General Division of the High Court decides not to approve the variation, the Public Prosecutor must give public notice of the following, unless the Public Prosecutor is prohibited from doing so by or under any written law or by an order of the General Division of the High Court under section 149J(1) or (2):

(a)	the decision of the General Division of the High Court;
(b)	if any reasons are given by the General Division of the High Court for that decision, those reasons. [19/2018; 40/2019]

Expiry of DPA

149I.—(1) If a DPA in respect of an alleged offence remains in force until its expiry date, then after the DPA has expired —

(a)

the Public Prosecutor must —

(i)	give written notice to the General Division of the High Court that the Public Prosecutor does not intend to prosecute the subject for the alleged offence; and
(ii)	give public notice that the Public Prosecutor has given that written notice to the General Division of the High Court, unless the Public Prosecutor is prohibited from doing so by or under any written law or by an order of the General Division of the High Court under section 149J(1) or (2); and

(b)

except as provided in subsection (2), the subject cannot be prosecuted for the alleged offence after the Public Prosecutor gives that written notice to the General Division of the High Court.

[19/2018; 40/2019]

(2) Despite subsection (1), the Public Prosecutor may initiate new criminal proceedings against the subject that entered into a DPA in respect of the alleged offence in that DPA, if the Public Prosecutor finds (whether before, on or after the expiry date of the DPA) that during the course of the negotiations for the DPA (including any variation of the terms of the DPA that is approved by the General Division of the High Court under section 149H) —

(a)	the subject provided inaccurate, misleading or incomplete information to the Public Prosecutor; and
(b)	the subject knew or ought to have known that the information was inaccurate, misleading or incomplete. [19/2018; 40/2019]

(3) Where —

(a)	a DPA is entered into between the Public Prosecutor and a subject in respect of an alleged offence;
(b)	the subject is deemed under section 149C(a) to have been granted a discharge not amounting to an acquittal in relation to the alleged offence; and
(c)	the DPA remains in force until its expiry date,

after the DPA has expired, the General Division of the High Court may, on the application of the Public Prosecutor, grant the subject a discharge amounting to an acquittal in relation to the alleged offence.

[19/2018; 40/2019]

(4) For the purposes of subsections (1) and (3), a DPA is not to be treated as having expired if an application by the Public Prosecutor under section 149G, about an alleged failure by the subject that entered into the DPA to comply with the terms of the DPA, is pending on the expiry date of the DPA.

[19/2018]

(5) In the case mentioned in subsection (4) —

(a)

if the General Division of the High Court decides that the subject did not fail to comply with the terms of the DPA, the DPA is to be treated as expiring when the application under section 149G is decided; or

(b)

if the General Division of the High Court terminates the DPA —

(i)	the DPA is to be treated as not having remained in force until its expiry date; and
(ii)	therefore, subsections (1) and (3) do not apply. [19/2018; 40/2019]

Publication of information

149J.—(1) The General Division of the High Court may postpone the giving of public notice under section 149F(5), 149G(4) or (5), 149H(4) or (5) or 149I(1)(a)(ii) for such period as the General Division of the High Court considers necessary, if it appears to the General Division of the High Court that the postponement is necessary to avoid substantial risk of prejudice to the administration of justice in —

(a)	any legal proceedings;
(b)	any investigation under this Code; or
(c)	any criminal investigation under any other written law. [19/2018; 40/2019]

(2) In any proceedings under this Part, the General Division of the High Court may, if satisfied that it is expedient in the interests of justice, public safety, public security or propriety, or for other sufficient reason, to do so, make either or both of the following orders:

(a)	an order that any information, which is contained in any court document intended to be produced before the court, be removed or be sufficiently redacted;
(b)	an order that no person is to publish any such information, or do any other act that is likely to lead to the publication of any such information. [19/2018; 40/2019]

(3) Any person who does any act in contravention of an order under subsection (2) shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $5,000 or to imprisonment for a term not exceeding 3 years or to both.

[19/2018]

Use of material in criminal proceedings

149K.—(1) Subsections (2) and (3) apply where a DPA in respect of an alleged offence is approved by the General Division of the High Court under section 149F.

[19/2018; 40/2019]

(2) The statement of facts contained in the DPA is, in any criminal proceedings brought against the subject for the alleged offence, to be treated as an admission by the subject under section 267.

[19/2018]

(3) However, the admission mentioned in subsection (2) cannot be withdrawn by the subject under section 267(4).

[19/2018]

(4) Subsections (5) and (6) apply where the Public Prosecutor and a subject have entered into negotiations for a DPA in respect of an alleged offence, but the DPA has not been approved by the General Division of the High Court under section 149F.

[19/2018; 40/2019]

(5) The material described in subsection (6) may be used in evidence against the subject only —

(a)

on a prosecution for an offence consisting of the provision of inaccurate, misleading or incomplete information; or

(b)

on a prosecution for some other offence, if both of the following apply:

(i)	in giving evidence, the subject makes a statement that is not consistent with the material;
(ii)	evidence relating to the material is adduced, or a question relating to the material is asked, by or on behalf of the subject in the proceedings arising out of the prosecution. [19/2018]

(6) For the purposes of subsection (5), the material is either or both of the following:

(a)

material that shows that the subject entered into negotiations for a DPA, including, in particular —

(i)	any draft of the DPA;
(ii)	any draft of a statement of facts intended to be included within the DPA; and
(iii)	any statement indicating that the subject entered into such negotiations;

(b)

material that was created solely for the purpose of preparing the DPA or statement of facts.

[19/2018]

(7) Any material or information obtained by the Public Prosecutor in the course of negotiations for a DPA or proceedings under this Part (other than the material described in subsection (6)) may, if determined (in accordance with the rules of evidence under written law and any relevant rules of law) to be admissible in evidence, be used against the subject that enters into the DPA or any other person in any criminal proceedings relating to any offence.

[19/2018]

Money received by prosecutor under DPA

149L. Any money received by the Public Prosecutor under any of the following terms of a DPA must be paid into the Consolidated Fund:

(a)	a term requiring the subject that enters into the DPA to pay a financial penalty to the Public Prosecutor;
(b)	a term requiring the subject that enters into the DPA to disgorge any profits made by the subject from the alleged offence. [19/2018]

Appeals from certain decisions under this Part

149M.—(1) The following decisions of the General Division of the High Court under this Part are appealable:

(a)	a decision, on an application under section 149F(1), not to approve a DPA;
(b)	a decision, on an application under section 149G(1), that the subject that entered into a DPA has failed to comply with the terms of the DPA;
(c)	a decision, on an application under section 149G(1), that the subject that entered into a DPA did not fail to comply with the terms of the DPA;
(d)	a decision, on an application under section 149H(2), not to approve a variation of the terms of a DPA. [19/2018; 40/2019]

(2) An appeal against a decision mentioned in subsection (1)(a) or (d) may only be made by the Public Prosecutor.

[19/2018]

(3) An appeal against a decision mentioned in subsection (1)(b) or (c) may be made by the Public Prosecutor or the subject concerned.

[19/2018]

(4) An appeal against a decision mentioned in subsection (1)(a) must be heard and dealt with in private.

[19/2018]

[Act 25 of 2021 wef 01/04/2022]

(5) A refusal by the Court of Appeal, on an appeal against a decision mentioned in subsection (1)(a), to approve a DPA entered into between the Public Prosecutor and a subject in respect of an alleged offence, does not prevent the Public Prosecutor from making another application under section 149F(1), for the approval of a different DPA entered into with the same subject in respect of the same alleged offence.

[19/2018]

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