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Addressing Threat of Extremist Terrorism
Another key development we have addressed in these amendments
is the new security climate in the post 911 environment and the
threat posed by extremist terrorism.
While our security forces currently already possess the
necessary powers to act in dealing with acts of terrorism, and
also Guidelines as to the proper exercise of these powers, MHA
proposes to include additional illustrations to provide greater
clarity with regard to the legitimacy of actions by our security
officers under certain threat scenarios. This is particularly
important, considering that the Penal Code was drafted primarily
to deal with crime, not terrorism.
These illustrations will be inserted to existing section 79
(Act done by a person justified or by mistake of fact believing
himself justified by law) and section 81 (Act likely to cause harm
but done without a criminal intent, and to prevent other harm)
under Chapter IV titled “General Exceptions”. Let me emphasize
that these illustrations do not grant additional powers to our
security forces but rather aim to provide clarity in the law.
More importantly, they give greater operational confidence to our
officers on the ground in taking the necessary actions to
neutralize security threats that confront them.
Inserted in consultation with MINDEF, they cover scenarios
pertaining to potential suicide bombers, a hostile vessel ramming
against another vessel, and an apparently hijacked vessel that
appears to be on a “suicide mission” to cause harm to innocent
human lives at a ferry terminal. We only need to recall the London
Bombings of 2005 and the attack on USS Cole to know that these are
plausible scenarios in today’s security climate. Although the
illustrations are not exhaustive, they are adequate to highlight
the type of scenarios our security forces may have to contend
with. The principles underlying these additional illustrations can
be extrapolated to similar situations that may arise. In cases
where there is credible intelligence received of a possible
terrorist attack, security personnel on duty at these locations
should factor such intelligence into determining their course of
action when confronted with threatening situations.
But let me say that, notwithstanding the inclusion of these
illustrations, it will ultimately be the Public Prosecutor, when
deciding whether or not to prosecute, and the Courts, when
determining the guilt or otherwise of an accused, to assess if any
of the Defences or General Exceptions applies in the circumstances
of the case.
Preserving Religious and Racial Harmony in the New
Global Security Climate
The current security climate also necessitates a re-look at
offences that aggravate religious and racial sentiments which are
now more likely to yield graver consequences than before. The
likelihood of extremists stirring up enmity or ill-will in a
religious setting and fanning racist flames has increased
tremendously. We have seen examples in other countries where a
particular race or religion has come under fire in the aftermath
of a terrorist attack. The need to tend carefully to the
expression of religious and racial sentiments has become crucial
today, in the context of a globalised world facing the threat of
terrorism driven by religious extremism. Indeed, Inhope, the
International Association of Internet Hotlines reports that
monthly trends of reports processed worldwide over a 28 month
period, up to December last year, showed that racism and
xenophobia grew by 33%. All the more so, in multi-religious,
multi-racial Singapore, maintaining religious and racial harmony
is critical. We will only be able to continue enjoying racial and
religious harmony if we practise tolerance and moderation as well
as sensitivity. We should never take for granted the tolerance and
mutual respect between the different religions and races which we
have painstakingly nurtured over the past decades.
These amendments will strengthen our laws against those who
promote enmity between different racial and religious groups on
grounds of religion or race and doing acts prejudicial to the
maintenance of harmony and those who utter words or gestures with
deliberate intent to wound the racial or religious feelings of any
person. Currently, section 298 criminalizes words and gestures
made with the deliberate intention of wounding the religious
feelings of a person. The cases of the racist bloggers, Benjamin
Koh and Nicholas Lim, who were charged and convicted under the
Sedition Act, raised the question whether there was a need to
prosecute the offenders under such a high signature Act. To
provide for greater prosecutorial discretion, the scope of
existing section 298 will be expanded to cover the deliberate
wounding of the racial feelings of a person.
In addition, a new section 298A will be introduced to
criminalize the deliberate promotion by someone of enmity, hatred
or ill-will between different racial and religious groups on
grounds of race or religion. This plugs a gap as currently actions
that are likely to cause racial or religious disharmony between
different racial or religious groups are not criminalised under
the Penal Code. Section 298A therefore complements section 298.
Both sections will cover online transmissions, especially as the
impact of such transmissions is much wider than face-to-face or
hard copy transmission.
Whilst feedback received supported the
need for these amendments, concerns were raised over the seemingly
broad scope of the offence. To assuage these concerns, we have
inserted the requirement of “knowingly promotes” in new section
298A that mirrors the requirement of “deliberate intention of
wounding” in section 298. This is a clear signal that the bar set
for these offences is a high one. Words that are carelessly spoken
will not be caught. It is not likely too that a journalist writing
an article based on facts, notwithstanding that it may be racially
or religiously sensitive, will be caught. A critical but rational
and objective discussion of religion and religious principles will
also not likely be caught. But, of course, ultimately, the Public
Prosecutor exercises his discretion in deciding whether or not to
prosecute, based on the particular facts of the case.
In addition, everyone has the right to
hold his own religious beliefs and to accept or not to accept any
religion. As such, it is not likely that a person who shares his
testimony of his conversion from one religion to another in his
personal Internet website, stating how he found fulfillment and
meaning in life after he converted to the other religion, without
denigrating another person’s religion, would be caught.
Nevertheless, in multi-racial and
multi-religious Singapore, Singaporeans should recognize the
sensitivities of other religious groups. It is one thing to preach
to a person who is interested to hear your views. However, it is
quite another to try to convert a person to your religion by
denigrating his religion, especially when he has no desire to be
converted.
To underscore the seriousness of offences involving or
motivated by hostility towards racial or religious groups, we are
providing that enhanced penalties may be meted out to offenders
who commit offences such as wrongful restraint, causing hurt,
rioting or wrongful confinement that are racially or religiously
aggravated. When the facts of the case warrant increasing
the punishment, new section 74 willenable the Courts to mete out
up to one and a half times the maximum penalty for the offence
concerned. This is similar to the approach we have taken for
offences against foreign domestic workers. We are not alone in
enhancing penalties for racially or religiously aggravated
offences as other countries such as Canada, New Zealand, the UK
and the state of New South Wales in Australia have also adopted
such an approach.
Transnational Nature of Crime
Increasingly, crimes have assumed cross-boundary dimensions.
Just as economic activities have globalised, so too has crime. We
are therefore amending the Penal Code to reflect this phenomenon.
New section 108B (Abetment outside Singapore of an
offence in Singapore)
Currently, our laws provide for the
punishment of a person who, whilst in Singapore, abets the
commission of an offence overseas [section 108A]. However, the
reverse situation is not provided for in the Code. Thus, a person
who abets, whilst overseas, an offence which is committed in
Singapore is not liable as an abettor. This does not make sense as
harm is done to Singapore when the offence is committed here!
Also, with advances in modern technology, it has become easier to
abet offences in Singapore, whilst physically overseas.
This amendment will make it easier for
our law enforcers to tackle crime more holistically by also
targeting those who perpetrate their criminal intentions from
afar. In this way, those who plan robberies or murders here, or
send drugs from overseas to Singapore, or plan terrorist attacks
here will be subject to this provision. If these people are
apprehended in Singapore, they can be prosecuted. Here again, we
are not alone in adopting this approach as Australian states such
as Queensland and Victoria have similar provisions.
New section 4 (Jurisdiction over public servants for
offences committed outside Singapore)
Whilst we ensure that those who do us harm by abetting, whilst
overseas, offences committed in Singapore are caught by our laws,
we must also address the situation where our own people commit
crimes overseas that cause harm to Singapore. Because this is a
departure from the widely-accepted territorial basis of
establishing jurisdiction for criminal offences, we have scoped it
appropriately. New section 4 will be enacted to enable our courts
to try a public servant who is a Singapore Citizen or Permanent
Resident, and who commits an offence under Singapore laws while
acting or purporting to act in his official capacity overseas.
This will plug a gap that surfaced in a case involving a
public servant posted to work in our High Commission in
India. As the offence was committed outside Singapore, our courts
had no jurisdiction to try him for the offence of dishonestly
misappropriating property. He was eventually charged under the
Prevention of Corruption Act, which has extra–territorial
jurisdiction effect with respect to Singapore citizens.
This provision is only applicable if
the public servants concerned commit offences whilst acting or
purporting to act in the course of their official duties. Criminal
acts committed under such circumstances will have adverse effects
on Singapore, thus justifying the state extending its criminal
jurisdiction over them.
New section 376C (Commercial sex with minor under 18
outside Singapore)
Another provision with
extra-territorial application is the new provision on commercial
sex with minors. Currently, Singaporeans who have sex with young
persons in other countries cannot be prosecuted under our laws
prohibiting sex with young persons, as these laws do not extend
jurisdiction over them. In this review, we took cognizance of the
fact that similar laws in countries such as Australia, Canada,
Hong Kong, Japan, New Zealand, UK and US had extra-territorial
effect.
The new section 376C (Commercial sex
with minor under 18 outside Singapore) will have extra-territorial
effect so that it would be an offence for Singapore citizens and
Permanent Residents to solicit or engage in commercial sex with
minors under 18 in other countries. In doing so, we join other
countries in doing our part to prevent the sexual exploitation of
children around the world by denying sex tourists a safe haven
back home if they exploit children in these countries.
It will not be easy to enforce this provision. Indeed, it will
be challenging to gather the necessary evidence as foreign
witnesses would have to be interviewed including, very likely, the
victim concerned. This would be exacerbated by factors such as the
language barrier, and the cooperation level of local officials.
However, notwithstanding these constraints and difficulties, the
new offence will be a strong signal that Singapore does not
condone such heinous acts, an expression of societal value in this
regard. But we know full well that the enactment of
extra-territorial laws is only part of the solution. In order that
we successfully reduce the incidence of child prostitution
worldwide, host countries must themselves enact tough laws against
child prostitution and enforce them strictly. Other stakeholders
must also chip in with relevant publicity and education and extend counselling and practical help to victims who come forward or who
are identified.
Penal Code to Enhance Protection of Vulnerable
Persons as Victims of Crime
Whilst the Penal Code protects society generally, we should be
mindful that some amongst us are more vulnerable to crimes than
others. These include persons of a young age and persons with
mental disability.
Minors
The amendments we are making to our
laws to further protect minors from sexual abuse received strong
support from many quarters. Let me mention the key ones.
Sexual penetration of minor under 16
Feedback received highlighted concerns
over female sexual abuse of male minors. On further consideration,
we accept that these younger male children could be exploited by
older women. Consequently, we have decided to make it an offence
for a woman to engage in penile penetrative sexual acts with a
male minor under 16 and to have commercial sex with a male minor
under 18. Section 376A (Sexual penetration of minor under 16) will
be introduced to make oral and anal sex, whether consensual or
non-consensual, with a minor under 16, an offence, attracting an
imprisonment term of up to 10 years or fine or both. This new
offence will also cover other penetrative acts such as
penile-vaginal penetration and penetration of the anus or vagina
by any part of the body or object. Causing a minor to penetrate or
be penetrated by any person will also be an offence. Whilst
there is some overlap with the Women’s Charter and the Children
and Young Persons’ Act, we believe that this new offence will
provide the Prosecution with greater prosecutorial discretion in
deciding on the appropriate charge to prefer based on the
circumstances of the case.
Commercial sex with minor under 18
Whilst prostitution per se is not an offence, new section 376B
(Commercial sex with minor under 18) will make it an offence for a
person to solicit, communicate or obtain sexual services from a
minor under 18 years of age. Young persons, because they are
immature and vulnerable and can be exploited, should be protected
from providing sexual services. Although there is no evidence to
suggest that we have a problem with 16 and 17 year olds engaging
in commercial sex in Singapore, we decided to set the age of
protection at 18 years so as to protect a higher proportion of
minors. By doing so, we join other countries such as the UK and
Australia which have also adopted the approach of criminalising
commercial sexual activities with persons under 18 years of age,
in line with the United Nations Convention on the Rights of the
Child 1989 and the Stockholm Declaration and Agenda for Action
1996 whilst maintaining the age of consent for consensual
non-commercial sexual activities at 16 years of age.
Commercial sex with minor under 18 outside Singapore
As mentioned earlier, new section 376C (Commercial sex with
minor under 18 outside Singapore) will be introduced to protect
minors in other countries from being sexually exploited by our
nationals. Many have welcomed this move. New section 376D (Tour
outside Singapore for commercial sex with minor under 18) will
also be introduced to make it an offence for any person to make or organise any travel arrangements for or on behalf of any other
person with the intention of facilitating the commission by that
other person of child sex tourism, whether or not such an offence
is actually committed by that other person. It also criminalizes a
person who transports any other person to a place outside
Singapore with the intention of facilitating the commission of
child sex tourism by that other person, whether or not such an
offence is actually committed eventually. This provision also
makes it an offence for a person who prints, publishes or
distributes any information that is intended to promote conduct
that would constitute an offence under section 376C, or to assist
any other person to engage in such conduct. This offence
will discourage demand for child sex tourism. I note that the
National Association of Travel Agents Singapore has urged industry
players to behave responsibly even if it means blowing the whistle
on those who break the law.
Sexual grooming
Even whilst we protect minors in the physical realm, we are
mindful that surging Internet usage has created a new phenomenon-
that of sex predators prowling the online landscape for prey under
the guise of making friends. On 17 July this year, I informed the
House that there has not been any significant increase in the
number of Internet-related sexual crimes, but that this remained
an area of concern as it involved young victims. I also informed
the House that MHA was considering introducing a new offence of
sexual grooming, taking into account feedback from both in and
outside this House, and recognizing that this tide will gather
momentum rather than recede. Thus, we have decided to introduce a
new section 376E on sexual grooming of a minor under 16.
The section, modelled after section 15 of the UK Sexual
Offences Act 2003, provides that an adult of or above the age of
21 years who meets or travels to meet a minor, either male or
female, under 16 years of age within Singapore with the intention
of committing a sexual offence[2],
will be guilty of an offence if the person had met or communicated
with the minor on 2 or more previous occasions. Like the UK, we
had set the bar at 2 or more communications/meetings as this
signals repeat behavior, that is to say, rather than being
one-off, the offender is more likely priming the victim by gaining
his or her trust and confidence for a “strike” later. These prior
meetings or communications can take place face to face or over the
Internet.
Besides the two prior communications
or meetings, a key element in this new offence is that the
offender possesses a criminal intent at the time of meeting the
child or at the time of traveling to meet the child to commit a
sexual offence against her. The meeting or traveling must take
place in Singapore, even if the earlier communications or meetings
had taken place outside Singapore.
This new offence will strengthen
Police’s hand in preventing any harm from befalling the victim.
Currently, in order to secure a successful prosecution for an
attempted sexual offence, it would require the offender to be
caught in doing something very close in proximity to the sexual
offence in question, for example, undressing the victim. This, of
course, is not satisfactory. With the new offence, Police will be
able to intervene much earlier. What is needed is for Police to
show that there has been the requisite number of communications
wherein the predator has prepared the ground, after which he acts
with the intention of committing a sexual offence against the
victim, that is, by traveling to meet her or actually meeting her.
The penalty is a maximum term of imprisonment of 3 years, or fine
or both.
In practice,
what this offence does is to allow
law enforcement authorities to step in when for example,
a child receives sexually suggestive communications over the
Internet, or a child is seen being met by a stranger in
suspicious circumstances. That law enforcement authorities can
now intervene at an earlier stage
would be sufficient to send a chilling effect on would-be sex
predators. Besides being a deterrent, those who persist will be
apprehended more easily. This is borne out from the experience in
England and Wales where more of such predators have been
caught. The UK crime statistics show an increase in the number of
sexual grooming cases recorded by the police: 185 in 2004/05, 237
in 2005/06 and 322 cases in 2006/07. Action was taken against the
suspects in 43% of the 237 cases in 2005/06, and 39% of the 322
cases in 2006/07. Of some significance is that the percentage of
sexual grooming cases where action was taken against the suspects,
is higher than the percentage for other types of sexual offences
against minors such as rape of female minors under 16.
Persons with mental disability
Now, let me move on to elaborate on how we are enhancing
protection for another group of persons, ie persons with mental
disability who, as a group, are vulnerable to sexual exploitation.
We are introducing new section 376F (Procurement of sexual
activity with person with mental disability) which makes it an
offence to procure sexual activities with a person with mental
disability who is capable of consent, but where inducement, threat
or deception was used to obtain the consent. While capable of
consenting to sexual activities, the capacity of a person with
mental disability to consent may be more easily compromised,
making them vulnerable and more compliant to lower levels of
inducement, threat or deception.
The introduction of the offence does not mean that persons with
mental disability can no longer exercise their right to engage in
sexual activities. A balance between the right of such an
individual to enjoy sexual intimacy and the need to protect his
vulnerability has to be struck. The mischief we are
addressing here is the exploitation of someone vulnerable, who is
impaired in his or her ability to make a proper judgment in the
giving of consent to sexual touching, by reason of mental
disability.
We received feedback expressing
concern that there could be sexual abuse of male persons with
disability by exploitative females. On reflection, we will now
make it an offence for a female to engage in sexual activities
with a male person with mental disability, to also include
penile-penetrative acts.
Rape/Marital Immunity
Next, let me touch on Marital
Immunity. This is understandably an emotive topic for some,
especially those who know of wives who may be sexually abused by
their husbands. Indeed, victims of sexual exploitation tend to be
women due to their physiological make-up. This is why we are
moving to afford them greater protection by lifting marital
immunity under specified circumstances but not to abolish it
altogether. We believe that such a balanced and calibrated
approach is a better one.
Under existing section 375, a husband cannot be prosecuted for
raping his wife who is not under 13 years of age. During the
Consultation, whilst we received fairly extensive feedback calling
for marital immunity to be abolished, there were others like law
academics Professors Leong Wai Kum and Debbie Ong Siew Ling, two
family law experts and Law Society, who supported our practical
approach. Together with others like the Subordinate Courts,
Singapore Academy of Law, they focused on improving the drafting
of the exemptions; in particular, expanding the circumstances
under which the wife’s consent to the husband’s conjugal rights
may be deemed withdrawn.
Our calibrated approach affords the necessary protection to
women whose marriages are, in practical terms, on the verge of a
breakdown or have broken down, and who have clearly signalled
that they are withdrawing their implicit consent to conjugal
relations, so that their husbands are forewarned that marital
immunity has been lifted. There is certainty and no
second-guessing, which can be a problem if there is a general
marital rape law, as it is almost never the case that both
husband’s and wife’s desire for sex, whether articulated or not,
is of the same intensity at any one time. With our measured and
calibrated approach, we feel that we have struck the right
balance.
Under such an approach, wives will receive the necessary
protection. At the same time, a husband will also not be open to
potential abuse by a vindictive wife who may have actually agreed
to sex, perhaps reluctantly, but cries “foul” later. Indeed, as
Professors Leong and Ong opine, this aspect of criminal law should
take its cue from family law which exhorts husband and wife to act
with mutual respect and consideration for one another. Thus, the
approach we are taking strikes the right balance between the needs
of women who require protection, general concerns about conjugal
rights and the expression of intimacy in a marriage. Abolishing
marital immunity altogether will likely change the complexion of
marriage drastically with negative impact on the marital
relationship between husband and wife.
Nevertheless, whilst keeping the basic
approach, in view of the feedback received, we have decided to
widen the circumstances under which a wife’s consent to sex within
the marriage is deemed to be withdrawn. Pre-consultation, the
circumstances were that:
(a) the wife is living separately from the husband under a
judgement of judicial separation or an interim judgement of
divorce not made final;
(b) there is in force a court injunction restraining him from
having sexual intercourse with his wife;
(c) there is in force a protection order or expedited order made
against him pursuant to an application by his wife.
Post-Consultation, we have included
the following additional circumstances as follows:
(a) the wife is living apart from her husband under
an interim judgement of nullity;
(b) the wife is living apart from her husband under a written
separation agreement;
(c) the wife is living apart from her husband and proceedings
have been commenced (and not terminated or concluded) for
divorce, nullity or judicial separation;
(d) the wife is living apart from her husband, and proceedings
have commenced (and not terminated or concluded) for a
protection order or expedited order for the benefit of the wife;
In addition, where there is a judgement of judicial separation or
an interim judgement of divorce not made final, which are
pre-Consultation circumstances, just like the new circumstances I
have just mentioned, the wife need not be living separately from
her husband as long as she is living apart from him ie they can
still be living under the same roof but are essentially living in
separate households.
In order that this provision achieves maximum positive impact
on the ground, it is important that wives are fully apprised as to
how they can avail themselves of the enhanced protection
afforded. The key therefore is on education, counselling and
empowerment of women. In this regard, MHA will work with MCYS to
achieve this goal.
The rights of family members to protection from family
violence, including sexual abuse by a spouse, as well as the
avenues for help, are currently covered under the Women’s Charter
and supported by a spectrum of family violence public education programmes. Public education materials like pamphlets, posters and
collaterals would be distributed at key locations such as
polyclinics, social service agencies, police stations, libraries
and schools.
MCYS started a Co-Funding Scheme in 2003 under which the
Government co-funds public awareness projects organized at the
community level. Organisations seeking to explore ways to
publicise the rights of couples under the new provisions can
submit their proposals for consideration. At the same time,
through the National Council of Social Services, the existing 36
Family Service Centres (FSCs) can also gear up to help abused
wives more effectively.
There were concerns expressed that wives did not know where to
seek legal advice. Recently, Minlaw and the Law Society initiated
two Legal Clinics at North-West and South-East CDCs. These will
operate over 4 weekdays. Troubled wives can turn to these Legal
Clinics for help by calling 65360650. In addition, they can turn
to the Legal Aid Bureau for legal advice and assistance.
We will also publicise more widely how abused wives can apply
for Personal Protection Orders at the Subordinate Courts. This is
a well-established process where no lawyers need be engaged. I
understand that the cost to the complainant is just $6 ($1 for
application + $5 for service of summon). PPOs are therefore
accessible and affordable for those in need.
Penal Code will be Tightened to Enhance the Course
of Justice
Genocide
Let me now deal with a few offences that enhance the course of
justice. Firstly, we are introducing a new offence of
genocide. This is intended to givegreatereffect to the Convention
on the Prevention and Punishment of the Crime of Genocide, which
Singapore acceded to in 1995. As section 302 already covers
murder, this new provision would cover actions that extend beyond
the killing of individuals per se, such as acts committed
with the intention of destroying, in whole or in part, a national,
ethical, racial or religious group, e.g. imposing measures
intended to prevent births within the group. .
Section 204A (Obstructing, preventing, perverting, or
defeating course of justice) and Section 204B (Bribery of
witnesses)
Secondly, we are introducing a new
section 204A to plug gaps arising from the general offence of
perverting the course of justice, which can be committed in
various ways. The new section 204A will plug this gap. Situations
covered include deliberately assisting a person to evade lawful
arrest; destroying or falsifying potential evidence, whether or
not legal proceedings have already been instituted or pleading
guilty to an offence committed by another person, in order to
shield the other person.
A new section 204B creates several
offences in relation to bribery and other means of influencing
witnesses. It is more specific than the provisions in the
Prevention of Corruption Act, as it focuses on bribery of
witnesses. We have also taken in feedback that section 204B should
be scoped such that it would only apply to offences where a person
has a legal duty to report under s22(1)(a) of the Criminal
Procedure Code.
Section 94 - Act to which a person is compelled by
threats (Defence of duress)
Another suggestion arising from the Consultation which we have
taken on board, this time from Ms Sylvia Lim, is to expand the
scope of the defence of duress under section 94, to include
the threat of instant death to any other person other than the
person himself. This makes sense as when a person is compelled to
do something by a threat which reasonably causes the apprehension
that instant death to any other person will otherwise be the
consequence, the person should be allowed to raise the defence of
duress.
Section 377D (Mistake of Age)
We had proposed to introduce a young person’s defence, where in
the case of a person below the age of 21 years, the presence of
reasonable cause to believe that the minor was above the age of 16
years (i.e. mistake of age) would be a valid defence on the first
occasion he is charged, similar to that provided under existing
section 140(5) of the Women’s Charter. This defence will be
introduced for the offences of sexual penetration of minor under
16 and prostitution of minor under 18 in Singapore and overseas.
We have accepted the Law Society’s suggestion that this defence
be denied only if, at the time of the offence, the person charged
for that offence had previously been charged in court for an
offence under the relevant section. This is fairer as an accused
who is charged with for example two charges (which because the
offences involved different dates, time, place and victims, he
could not be jointly tried) would not be denied the defence on the
second trial on the second charge.
Certain Provisions in the Penal Code would be
Rationalized and Clarified
MHA will also be clarifying the scope of certain
offences to reflect existing case law.
Next, we are taking the occasion of this review to amend
section 141 in line with how the Court of Appeal has interpreted
it. In Tan Meng Khin v PP, Yong CJ (as he then
was) held that an offence of unlawful assembly would be
constituted if the common object of the assembly is to commit any
offence (punishable with at least 6 months imprisonment for
non-Penal Code offences), whether or not it relates to public
tranquility. Yong CJ put it this way “…it is the very fact of an
assembly of a number of people coming together and forming an
intention to commit any criminal offence that is a threat to
public tranquility…..wherein members of the assembly mutually
reinforce their criminal intentions, intimidate those who may
choose to leave their membership or intimidate those who are
affected by the assembly….”
Section 141 will not apply if the assembly’s common object is
to commit a minor non-Penal Code offence punishable by law with
imprisonment for a term below 6 months. Hence, people gathering to
participate in an unlawful assembly or procession in contravention
of the Miscellaneous Offences (Public Order and Nuisance) Act[3],
will not be caught as these participants may be fined only. The
section will also not apply if people gather to meet with no
intention of committing any offence, and the onus of proving this
common object is on the Prosecution. This should reassure civil
society groups who have expressed concern that this amendment may
restrict their activities.
We will be enhancing the punishment
from a maximum imprisonment term of 6 months to 2 years. This is
not excessive and is clearly justifiable. Firstly six months is
too low for such an offence which impacts Singaporeans’ sense of
safety and security. Secondly, if not checked in time, unlawful
assemblies would likely escalate to the commission of other
offences, some of which could have serious and violent
consequences such as rioting.
Updating Penal Code Provisions To Reflect Societal
Norms and Values
Section 498 which criminalizes the
enticing, taking away, detaining or concealing with criminal
intent a married woman will be repealed as it is an archaic
offence. The section was enacted at a time when a wife was
considered a chattel belonging to the husband. This provision does
not cover a situation of two consenting adults delighting in a
consensual tryst. Quite the contrary, the offender here entices a
woman from her husband with intentions of himself or some other
person having illicit sex with her. Therefore, contrary to what
some may think or even attempt to argue, the repeal of this
provision does not decriminalize adultery or extra-marital sex.
Indeed, when the provision was enacted in 1892, adultery was not
an offence in England.
Section 377
We will be removing the use of the archaic term “Carnal
Intercourse Against the Order of Nature” from the Penal Code. By
repealing section 377 (Unnatural offences), any sexual act
including oral and anal sex, between a consenting heterosexual
couple, 16 years of age and above will no longer be criminalized
when done in private. As the Penal Code reflects social norms and
values, deleting section 377 is the right thing to do as
Singaporeans by and large do not find oral and anal sex between
two consenting male and female in private offensive or
unacceptable. This is clear from the public reaction to the case
of PP v Anis Abdullah in 2004 and confirmed
through the feedback received in the course of this Penal Code
review consultation.
Offences such as section 376 on sexual assault by penetration
will be enacted to cover non-consensual oral and anal
sex. Some of the acts that were previously covered within the
scope of the existing section 377 will now be included within new
sections 376 -Sexual assault by penetration, 376A - Sexual
penetration of minor under 16, 376B - Commercial sex with minor
under 18, 376F- Procurement of sexual activity with person with
mental disability, 376G - Incest and 377B - Sexual penetration
with living animal. New offences will be introduced to clearly
define unnatural sexual acts that will be criminalised, viz.
bestiality (sexual acts with an animal) and necrophilia (sexual
acts with a corpse).
Section 377A
Section 377A which criminalizes acts
of gross indecency between two male adults[4]
will be retained. Public feedback on this issue has been
emotional, divided and strongly expressed with the majority
calling for its retention. Singaporeans are still a largely
conservative society. The majority find homosexual behaviour
offensive and unacceptable. Neither side is going to persuade or
convince the other of their position. We should live and let live,
and let the situation evolve, in tandem with the values of
our society. This approach is a pragmatic one that maintains
Singapore’s social cohesion. Police has not been
pro-actively enforcing the provision and will continue to take
this stance. But this does not mean that the section is purely
symbolic and thus redundant. There have been convictions over the
years involving cases where minors were exploited and abused or
where male adults committed the offence in a public place such as
a public toilet or back-lane. Whilst homosexuals have a place in
society and, in recent years, more social space, repealing section
377A will be very contentious and may send a wrong signal that
Government is encouraging and endorsing the homosexual lifestyle
as part of our mainstream way of life.
Penalties Reviewed to Give the Courts Greater
Discretion and to Reflect Crime Trends
Principles of review and Overview of recommendations
Another major focus of this review is the updating of the
penalty regime. In this regard, a key objective is to provide our
Judges with greater sentencing discretion to mete out appropriate
sentences in the cases they hear. In this vein, we are
also amending the Criminal Procedure Code to enable the courts to
mete out any combination of penalties; i.e. imprisonment, fine or
caning, where the court deems appropriate.
Out of a total of some 360 offences
reviewed, we are maintaining status quo for the penalties of 208
or about 60% of them. A total of 56 offences with stipulated fine
amounts will be revised to today’s value, using the Consumer Price
Index (CPI) to take into account changes in the purchasing power
of money. Increasing the fine quantum will give the Courts greater
flexibility to impose heavier fines and shorter imprisonment terms
if the facts of the case warrant it. This is something our Judges
had commented on in their judgments.
The principles we adopted were as
follows:
-
First, the type and quantum of punishment should provide
sufficient flexibility to the Courts to mete out an appropriate
sentence in a particular case;
-
Second, the prevalence of the offence;
-
Third, the proportionality of the penalty to an offence, taking
into account its seriousness;
-
And fourth, the relativity in punishment between related
offences.
In particular, we sought to reduce the
number of offences carrying mandatory minimum punishment and the
gap in imprisonment terms for double-limb penalties.
Review of mandatory minimum penalties
We will remove mandatory minimum imprisonment terms for 4
offences. These aresections 379A, 411 and 414 relating to theft or
concealment of stolen property where it involves motor vehicle or
components, and section 454 relating to lurking house trespass or
housebreaking in order to commit an offence punishable with
imprisonment. In addition, we are removing the mandatory minimum
disqualification for section 379A relating to Theft of motor
vehicle or component part. Responding to feedback that more
mandatory minimum sentences should be removed, we reviewed all the
remaining offences with such sentences and added section 454 to
the list. Also, instead of imposing mandatory disqualification
from driving for sections 411 and 414 relating to Dishonestly
receiving stolen property or assisting in concealing stolen
property, we will now make it discretionary.
Introduction or removal of life imprisonment
Life imprisonment will be removed for 13 offences, such as
those relating to the counterfeiting of coins and Government
stamps and forgery offences. These offences are neither prevalent
nor serious. It will how ever be introduced for 2 offences as optional
sentences. These are section 121A relating to Offences against the
President and section 124 relating to Assaulting the President,
Cabinet Member or MP with intent to compel or restrain the
exercise of any lawful power. These are very serious offences,
deserving of a higher punishment tariff.
“Double Limb” Penalties
Heeding comments made by our Judges,
we have reviewed all the existing double limb penalties to
calibrate them more appropriately to reflect the seriousness of
the offence and give the Courts greater flexibility in sentencing.
The Law Society has welcomed this move. We have decided to keep
this approach because doing away with double limb penalties will
have the tendency of enhancing imprisonment terms as the
punishment tariff will then only reflect the upper limit.
Others
As I have continually illustrated, we
took on board many inputs from the Consultative Process. One other
example is by differentiating between penalties for compelling the
Government, (attracting a higher punishment) and any person
(attracting lower punishment) to do or abstain from doing any act
by way of kidnapping or abduction.
Consequential and related amendments to other legislations
As a result of the amendments to the Penal Code, consequential
amendments are proposed for other legislation such as the Criminal
Procedure Code (CPC), the Women’s Charter (WC) and the Children
and Young Persons’ Act (CPYA). With the changes to the Penal Code,
we have reviewed Schedule A of the CPC including whether the
police may ordinarily arrest without warrant or not and by what
court triable besides the High Court.
Conclusion
This review has taken two to three years because we wanted to
be thorough. Not only have we examined every provision in terms of
its substantive coverage and scope by updating, clarifying and
enhancing some of them, we have also introduced new offences to
plug identified gaps, especially in view of latest technological
developments and crime trends. We have also combed through all the
sections to ensure parity and coherence in their assigned
punishment tariff, doing this not only within the Penal Code
itself but also, where applicable, cross-checking them with
related provisions in statutes such as the Women’s Charter and
Children’s and Young Persons Act. Finally, we took the
opportunity to do some house-cleaning work and have removed
references to archaic terms such as “bullock”, “carriage”,
“chariot”, “schoolmaster”, “ice-house” and “penghulu”.
Finally, Sir, I assure Members that even though the review is
over, we will continue to monitor how these amendments will work
out in practice. If necessary, we will finetune the provisions to
ensure they achieve their desired outcomes.
Sir, I beg to move.
[1] The term
"electronic record" will be inserted in 18 provisions; namely
sections 167, 172, 173, 175, 192, 204, 267C (formerly 151A), 463,
464, 465, 466, 468, 469, 470, 471, 474, 476 and 477A. Provisions
where the term “electronic record” added will not be
extended to cover offences committed over the Internet are
sections 172 (Absconding to avoid service of summons, etc.,
proceeding from a public servant), 173 (Preventing the service of
summons, etc., or preventing publication thereof), 175 (Omission
to produce a document or an electronic record to a public servant
by a person legally bound to produce such document or electronic
record) and 476 (Counterfeiting a device or mark used for
authenticating documents or electronic records other than those
described in section 467, or possessing counterfeit marked
material).
[2] The
following offences are included as "relevant offences":- Penal
Code: s 354 (Assault or use of criminal force to person with
intent to outrage modesty), s 354A (Outraging modesty in certain
circumstances), s 375 (Rape), s 376 (Sexual assault by
penetration), s 376A (Sexual penetration of minor under 16), s
376B (Prostitution of minor under 18), s 376E (Procurement of
sexual activity with person with mental disability), s 376F
(Incest) or s 377A (Outrages on decency) - Children and Young
Persons Act: s7 (Sexual exploitation of child or young
person); and Women’s Charter: s 140(1) (Offences relating
to Prostitution).
[3]
s.5(4)(b) of MOA and s.5 of MOR - fine up to $ 1000 only for
participants, but organisers of such assemblies are treated more
harshly - s.5(4)(a) MOA which carries a jail term of up to 6
months and s.4(2) MOR which carries a jail term of up to 3 months
[4] Section
377A makes it an offence for any male person, in public or
private, to commit any act of gross indecency with another male
person.
Source:
www.mha.gov.sg News 22 Oct 2007
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The Penal Code (Amendment) Bill
passed
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