Criminal Law (Miscellaneous Amendments) Bill – Wrap-Up Speech by Mr K Shanmugam, Minister for Home Affairs and Minister for Law

Introduction

1.   Thank you Sir. I thank the Members who spoke in support of the Bill.

2. I will deal with the questions and suggestions raised by Members in turn.

Enhanced Penalties

3. Mr Zhulkarnain Abdul Rahim suggested that we should raise the penalty for section 354(2).

4. We had considered this, reviewed it. We felt that it was not necessary at this stage, the penalty is severe enough, it’s got to take reference from other penalties across different sections.

5. Mr Murali Pillai asked whether the age limit for caning remains fit for purpose today.

6. Again, our assessment is there is no reason to raise the age limit.

7. The number of men over the age of 50 arrested for serious offences that attract caning are significantly lower, compared to men under the age of 50.

8. Where an offender is not eligible for caning, as Mr Pillai and members of this House will know, the court can still impose an additional imprisonment term of up to 12 months in lieu of caning, if it assesses that there is a need to do so.

9. The member raised the concern of offenders who are near the age of 50 delaying the proceedings to escape caning.

10. Well, raising the age limit by itself may not stop the problem because when you shift the line, the problem may also shift. But, I accept that in logical terms, by reference to the life expectancy, Mr Pillai’s case is a cogent one. My response to him is that we’ve been quite cautious about extending the categories of people who are caned.

11. A clarification. In the example cited by Mr Pillai of the accused person who tried to delay proceedings, caning was not carried out in that case, because the accused was found medically unfit for caning, not because he had crossed the age of 50.

12. The court then imposed an additional imprisonment term of 12 months, on top of the initial imprisonment sentence.

13. Mr Raj Joshua Thomas asked for an update on the setting up of the Sentencing Advisory Panel, the terms of reference, and its composition.

14. We will provide, on the formation of the Sentencing Advisory Panel, the terms of reference and its composition, in due course, after the details are firmed up.

15. Mr Louis Ng asked about the Sentencing Advisory Panel as well and whether it could review and publish guidelines on victim compensation under section 359 of the Criminal Procedure Code (CPC).

16. Compensation orders under the CPC are meant for cases where the fact and the extent of damage are either (i) agreed on, or (ii) readily and easily ascertainable on the evidence.

Offences Against Public Servants

17.   Ms Sylvia Lim and Mr Raj Joshua Thomas sought clarification on the rationale for amending section 182. Ms Lim made the point as to whether the amendment is necessary, considering that giving false information to a public servant is already dealt with by section 177.

18. As she and Mr Thomas pointed out, Section 177 applies if the person giving false information was legally bound to provide information to the public servant.

19. In Chua Wen Hao’s case, again both MPs pointed out, the Court said that Section 182 is not designed to protect a public servant from the inefficient exercise of lawful powers. I should make clear, the inefficient exercise in that case arose from false information being given. Because false information was given, the Police had to spend extra time running around, trying to do the investigations.

20. The Court held that an offence under section 182 was not made out, although the Police took more time to investigate the identity of one of the persons of interest, because the Police would have had to investigate this case anyway, regardless of the false information.

21. We are amending section 182 in a very simple way to deal with this lacuna. And, Section 182 applies even when you give false information even though you are not under an obligation to do so. Section 177 applies when a person is under the legal obligation to give information.

22. I note Ms Lim’s point on the marginal note. We did not amend the marginal note of the provision because the main thrust of the offence has not changed.

23. And, the intent and scope of the amendment, of course, made clear through the wording of the provision, the illustration that has been added, the explanatory statement, and the discussion in the House today.

24. Let me now move to Section 186.

25. Ms Lim highlighted the overlaps between sections 177 and 186, and sought clarification on the rationale for raising the maximum imprisonment term for section 186, even though providing false information to a public servant when one is under a legal duty to do so, which is section 177, is arguably more serious than when one is not under such a duty (section 186). I think Ms Lim is right if both cases involve giving of false information.

26. But, Section 177 and Section 186 however, can cover different types of criminal conduct. Section 177, as we saw earlier, applies when one is under a legal duty to give information to a public servant.

27. The provision of false information is the central element of the offence.

28. In contrast, Section 186 deals with the obstruction of public servants in the discharge of their public functions. It can be through the provision of false information, but it can also be through other means, and one can imagine easily very egregious circumstances, delibrate physical obstructions of public servants when they are doing something extremely urgent and important. For example, in the saving of lives.

29. Quite apart from giving of false information, the crux of the offence under Section 186, therefore, is in some way interfering or obstructing the performance of the public servant’s duties.

30. The new illustration being added will help to explain this.

31. So, the illustration. A person plays a prank on say, SCDF paramedics, who are responding to an emergency, and he gives false information to the paramedics, with the intention of causing a delay in the paramedics’ provision of medical assistance.

32. Even though the person may not be legally bound to provide the information, his act of giving false information, intentionally wasting SCDF’s time and resources in the midst of an emergency, could lead to very serious, possibly even fatal, consequences.

33. So, the proposed amendments clarify that section 186 is not limited to physical acts of obstruction, they could also include the provision of false information, depending on the facts of each case.

34. There is some overlap, I accept that, but the essence of the offences are distinct and primarily address different types of conduct.

35. The proposed raising of the maximum imprisonment term for section 186 to six months is to align the penalties with that of section 177(1) so that they can potentially cover conduct of similar blameworthiness. The actual penalty imposed will of course depend on the facts.

36. Mr Raj Thomas also highlighted the overlaps between section 177 and the amended section 182, and asked if accused persons will be charged under section 182 instead of the less serious section 177.

37. It’s up to the Prosecution to assess, exercising the Prosecutorial discretion as to which offence has been established, which charge should be preferred, depending on the facts of each case.

38. Mr Zhulkarnain suggested that persons who obstruct public servants in the discharge of their public functions under section 186 should face a jail term of up to two years, compared to the six months proposed in this Bill.

39. He said that obstruction could lead to grave consequences. I agree that it could lead to grave consequences.

40. But at present, having reviewed it, we do not see a need to increase the maximum sentence, based on the cases that have arisen.

41. And, some of the more egregious instances raised by the member will likely be caught by more serious offences, such as section 353 on using criminal force to deter a public servant from discharging his duty.

Enhancing Protection for Minors

42.   The third area, the protection of minors from sexual offences.

43. Mr Zhulkarnain asked why aggravated penalties for outrage of modesty under section 354(2) only apply when the minor is under 14 years old.

44. He suggested aggravated penalties should also apply when the minor is under 16, consistent with the offences of sexual grooming and exploitation.

45. This question was considered by the Penal Code Review Committee (PCRC). They submitted their recommendations in 2018.

46. Both sets of offences, whether the victim is below 16 or below 14, both are treated seriously.

47. An offence of sexual penetration under section 376A of the Penal Code is now punishable with up to 10 years’ of imprisonment and/or fine if committed against a victim between the ages of 14 and 16, so it’s pretty serious, the penalties.

48. However, if the victim is below the age of 14, the offence is punishable with up to 20 years’ of imprisonment instead, and there is also a possibility of caning.

49. The criterion of 14 years of age under section 354(2) is consistent with this approach.

50. Mr Sharael Taha expressed concern about sexual grooming in the digital space.

51. He asked three questions.

52. First, whether the offence of sexual grooming will cover persons who send links to sexual images or content, through various online platforms.

53. Second, whether the Government could consider setting up a platform for members of the public to report such perpetrators.

54. And third, how will the Government act on information if the perpetrators are not within Singapore.

55. In 2019, we amended the Penal Code to introduce specific offences relating to technology-facilitated sexual offending.

56. These offences include sexual communication with minors, sexual activity or image in the presence of a minor.

57. And, depending on the facts of the case, the act of sending links to sexual images or content to a minor under the age of 16 will be covered by this rubric of offences.

58. Similar situation will apply if the minor is aged between 16 and 18, and the perpetrator is in an exploitative relationship with the minor.

59. The offences will be committed even if the communication originated from outside of Singapore, or the perpetrator is outside Singapore. But bringing him into Singapore and making him face justice, is of course, a separate question.

60. The offences will also apply, regardless of the online platform through which the sexual content was communicated.

61. So this will cover links sent via Instagram, WhatsApp, Tiktok, games platforms, and so on.

62. Parents and other persons who wish to report such incidents can lodge a Police report, online or in person.

63. In investigating these crimes, the Police will identify the available evidence, including digital evidence. Police will also work with external stakeholders, by requesting information from online platforms, including messaging applications, or telecommunications companies, to try to identify the perpetrator.

64. Where the perpetrator is not in Singapore, the Police work with foreign law enforcement agencies to investigate such cases within the ambit of existing international agreements.

Rehabilitating the Offender and Protecting the Public

65.   The fourth area relates to the Government’s measures to rehabilitate the offender, protect the public, especially vulnerable members of the public.

66. Mr Louis Ng sought clarification on the counselling and treatment provided to persons who committed hurt and sexual offences; and whether we can consider mandating post-release treatment for these offenders.

67. Mr Sharael Taha asked if the Government could consider a registry, to prevent convicted sexual offenders from working with vulnerable individuals such as children.

68. He also asked about digital deterrence, and whether the Government could monitor the online activities of sexual offenders who had preyed on victims online, after they had served their sentences.

69. Inmates undergo various rehabilitation programmes while in prison and also post-release if needed.

70. During incarceration, inmates will be placed on programmes which are calibrated based on their general risks of re-offending and rehabilitation needs.

71. These programmes include psychology-based correctional programmes, family programmes, employability skills training, and religious programmes.

72. Selected inmates who had committed sexual offences are given evidence-based psychological interventions to mitigate their risks of sexual re-offending.

73. If assessed suitable, eligible inmates may be emplaced on Community-Based Programmes towards the tail-end of their incarceration to continue their rehabilitation in the community under supervision.

74. Inmates who had committed sexual offences may be referred to community partners before their release if they are assessed to require longer-term support for their successful rehabilitation and reintegration into the community.

75. Offenders who committed offences on or after 1 July 2014 are subjected to the Conditional Remission System, or CRS, upon their release.

76. The CRS seeks to deter ex-offenders from re-offending by subjecting them to conditions upon their release.

77. If an ex-offender breaches the basic condition of not committing another offence under the CRS and is sentenced to imprisonment, the Court may impose an enhanced sentence as a penalty.

78. Ex-offenders who are at a higher risk of reoffending, or who require more support in their reintegration, may also be emplaced on the Mandatory Aftercare Scheme, or MAS. This includes ex-offenders who had committed certain sexual offences, such as rape and sexual penetration of a minor.

79. Under the MAS, released offenders undergo close supervision under the Singapore Prison Service (SPS) and have to comply with the mandatory aftercare conditions imposed by the Commissioner of Prisons.

80. Such conditions may include attending counselling or therapy, regular reporting, wearing of electronic monitoring devices.

81. If the supervisee breaches his supervision conditions, he will be dealt with. If he commits new criminal offences, he may be charged.

82. Supervisees also undergo counselling and case management for up to two years, to help them in their rehabilitation and reintegration.

83. Supervisees who had committed sexual offences will continue to receive counselling support from SPS’s Correctional Rehabilitation Specialists, if required.

84. On the suggestion to monitor the online activities of sexual offenders after their release, there are practical limitations on how this can be done.

85. Some overseas jurisdictions which implemented such restrictions faced manpower challenges to track online activities for an extended period of time.

86. Additionally, as members will appreciate, measures to control such activities can easily be bypassed.

87. As for preventing convicted sex offenders from working with vulnerable people like children by setting up a sex offenders’ registry, I mentioned this to the House in April this year.

88. The Police already maintain a non-public record of persons convicted of serious offences, including sexual offences.

89. Agencies like MOE and MSF work closely with Police to screen prospective employees applying for jobs working with children, such as those in licensed preschools and schools.

90. We are considering whether to make it mandatory that all persons employed in similar sectors working with children be screened.

91. There are some practical difficulties with this approach, which we are considering carefully.

Protecting Innocent Accused Persons

92.   The fifth area is the protection for persons accused of crimes, especially those accused of sexual offences.

93. Mr Thomas asked about protecting the identity of persons accused of sexual crimes before conviction, and he referred to what I said in May this year. There are pros and cons for both approaches. Our current approach is towards open court proceedings, and I had said that it is not set in stone, and we’ll keep the position under review.

94. But as of today, as of now, the current position is open court proceedings, and while you can cite individual cases, overall, the question is what helps in advancing, in maintaining rule of law and the justice system.

95. Mr Sharael Taha commented that the criminal justice system should not be abused by persons who lodge false reports out of spite or mischief.

96. We agree and it is an offence to make false allegations in court, or lodge false Police reports.

97. Persons who are convicted of making false reports could face severe penalties.

Clarifying the Scope of Defences

98.   Mr Zhulkarnain asked if our amendments to the provisions on Mistake or Ignorance of Fact under section 79, or Mistake or Ignorance of Law under section 79A, and Accident in the doing of a Lawful Act under section 80, operate to shift the burden of proof; and whether there are safeguards to prevent the accused from abusing these provisions.

99. These amendments are not meant to change the general principles of burden of proof.

100. Let me illustrate with an example. Suppose the accused is charged with theft of a watch.

101. The offence of theft has the element of dishonesty, which the Prosecution must prove beyond a reasonable doubt, and I don’t think there is any question on that.

102. Suppose the accused claims a mistake of fact that he mistakenly believed that the watch was his, he needs to show that to the court.

103. But the burden remains on the Prosecution, overall, after taking into account the different facts, and different parties, and the case may have the burden of proving specific facts, the prosecution has to show to the court that the accused had acted dishonestly.

104. Mr Pillai spoke on the defence of unsoundness of mind under section 84, and suggested for the defence to be broadened in two ways.

105. One, to cover volitional disorders.

106. This was covered in the 2019 Penal Code amendments.

107. Under the present section 84(c), nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is completely deprived of any power to control his actions.

108. We are quite cautious about further expanding the defence to cover persons whose mental disorder impaired their control over their actions, but who retained some control over their actions despite their mental disorder.

109. In principle, a person who retains some power to control his actions, but does not do so, remains blameworthy and should face the appropriate legal consequences as opposed to a full acquittal.

110. Mr Pillai also suggested that Section 84(b) be amended to apply disjunctively, instead of conjunctively.

111. In other words, to be acquitted under this defence, the accused person needs only to show either that he was incapable of knowing that what he was doing was wrong by the ordinary standards of reasonable and honest persons, or that he was incapable of knowing that it was wrong as contrary to the law.

112. We considered this issue during the last review of the Penal Code in 2019.

113. Our policy position was that the requirements should be conjunctive. Just because a person was incapable of knowing that his action was contrary to law, does not mean that we should avail the defence to them.

114. Mr Pillai said that an acquittal due to the defence of unsoundness of mind would be a pyrrhic victory, as the accused will be ordered by the Minister to be kept in safe custody, which usually means a psychiatric institution “during the President’s pleasure”.

115. Well, the reason why that is done is that if he is released, out, the person may go out and do some more harm. And, there is also a significance to a conviction. It is a finding that the person is guilty, and should be appropriately punished.

116. We are not narrowing the ambit of the defence.

117. Prior to the 2019 amendments, the legal position on whether a conjunctive or disjunctive reading should be applied was unclear. This ambiguity was acknowledged by the PCRC.

118. We sought to clarify this in 2019 in favour of a conjunctive reading, and are making it even clearer now.

119. Even if an accused person does not meet the threshold of unsoundness of mind under section 84, the Court will still consider the evidence of a person’s mental condition in determining what the appropriate sentence should be.

120. Finally, Mr Pillai made the point that section 84 should be broadened in the way that he suggested, so that a person can continue to be detained and treated for as long as he remains a danger to himself and the public, instead of having to release him into the community after completing his imprisonment term.

121. During imprisonment, prisoners with serious mental disorders receive treatment by professionals from both the Prisons and IMH (Institute of Mental Health).

122. When prisoners are due to be released, those whose conditions remain severe enough to warrant immediate follow-up are assessed directly by IMH.

123. IMH may decide to detain the individuals further at IMH under the provisions of the Mental Health (Care and Treatment) Act.

124. IMH can act in those ways and the Act allows for the detention of a person at IMH for treatment if he is suffering from a mental disorder which warrants his detention at IMH for treatment, and if it is in the interests of the health or safety of the person, or for the protection of other persons, that he should be so detained.

125. In less severe cases, Prisons may make referrals to IMH or polyclinics for follow-up care, after the offender’s release from prison.

126. But ultimately, this relates to public safety and protection, which is a separate issue from that of criminal responsibility, which is what section 84 is basically  concerned with.

127. Mr Pillal cited the case of PP v Dolah Bin Omar to suggest that the defence of unsoundness of mind should be broadened. In that case, the unsoundness of mind defence was not needed. The lawyer for the accused, the judge, both accepted that on the evidence, the accused’s mental condition did not come within the rubric of unsoundness of mind defence. There is nothing to indicate that the accused would have indeed qualified for the defence regardless of whether a disjunctive or conjunctive reading is to be applied.

Other Clarifications

128. Mr Raj Joshua Thomas suggested including a definition or illustrations to make clear what “genital region” refers to. The term “genital region” is currently used in existing provisions to define child abuse material, and there have not been concerns raised over the interpretation of this term so far. Fair degree of clarity on it.

129. We do not expect that there will be difficulty in interpreting the term in the context of the offence of voyeurism, but if such difficulties arise, we will relook at this.

130. Mr Louis Ng sought clarifications on our proposals to update the older terms in the Penal Code, replacing the word “malice” with the phrase “intent to cause injury”.

131. To clarify, the phrase “intent to cause injury” refers to the offender’s mental state.

132. Therefore, an offender may be found to have intended to cause injury, even if he had not succeeded in causing the specific type of injury intended, or injuring the intended victim.

133. As stated in the definition of “injury”, any harm that is illegally caused to the victim in the mind will amount to an injury.

134. It is not necessary for the harm to take the form of a psychiatric or mental disorder for there to be an injury.

135. The courts will have to decide in each case, based on the circumstances, whether there is harm that is illegally caused to the victim’s mind.

136. Feelings of harassment or distress may, depending on the circumstances, satisfy this test.

137. Mr Zhulkarnain sought clarification on who section 304C targets.

138. Section 304 sets out the offence of causing or allowing the death of a child below 14 years of age, or a domestic worker, or a vulnerable person in the same household. And, members will realise, we also broadly treat a child under 14, as well as a domestic worker, can broadly be classified as vulnerable persons as well. I spoke about this earlier in the House, I think in March, or perhaps earlier.

139. This offence deals with situations where two or more persons were in a position to cause the death of the victim, but both deny that they were the ones who caused the death. Frequently we have come across cases – child, five years old, six years old, scalded, beaten up, bones broken, brought to the hospital, dead, and some story is given, and both parents, and sometimes it’s the step-parent, denying responsibility. This provision will cover such situations. Because if they didn’t do it, nevertheless, they knew it was happening, and they had a duty to protect the child.

140. Sometimes it is very difficult to prove in court who committed the abuse and who permitted the abuse. With such ambiguity, a perverse result that both get acquitted on the basis that the case against neither can be proved beyond reasonable doubt, that’s a travesty of justice.

141. We introduced section 304C in 2019 to allow us to deal with persons, not just persons who abused the victim and caused his/her death, but also persons who stood by and allowed the abuse.

Conclusion

142. Sir, I believe I have responded to the issues raised by Members.

143. I thank Members for their support for the Bill.

144. Thank you.