Second Reading of Criminal Law (Miscellaneous Amendments) Bill - Speech by Mr Desmond Tan, Minister of State, Ministry of Home Affairs and Ministry of Sustainability and the Environment

Introduction

1.   Mr Speaker Sir, thank you for allowing me to speak.

2.   Minister Shanmugam has spoken on the amendments relating to the increased penalties for three sexual offences.

3.   In my speech, I will explain how this Bill expands and clarifies the scope of certain offences and defences, and modernises the language of certain provisions.

Expand and Clarify the Scope of Certain Offences and Defences

Expanding the Scope of Offences Related to False Information

4. First, one gap that the Bill is meant to address is the giving of false information to public servants in the course of their duties.

5.   The need to review this arises from a recent decision of the High Court, Public Prosecutor v Chua Wen Hao .

6.   In that case, the Police were looking for a suspect who had committed an offence at a hotel.

7.   At the hotel, the Police asked the accused person whether he knew the suspect. The accused person told the Police that he did not, and that he had not allowed such a person to enter his hotel room.

8.   Police investigations subsequently revealed that this was not true.

9.   In fact, not only was the accused person a friend of the suspect, they had gone out for drinks together and had planned to meet at the hotel. The suspect arrived at the hotel slightly after the accused person, and joined him in his hotel room.

10.   As a result of the false information, the Police officers wasted additional effort and time to uncover the identity of the suspect.

11.   The accused person was charged under section 182 of the Penal Code, which provides for the offence of giving false information to a public servant, with the intent of causing or knowing that it will likely cause a public servant to use his lawful power to the injury or annoyance of another person, or to do or omit anything which the public servant ought not to do or omit if he had known the truth.

12.   The High Court held that section 182 did not apply, as the offence is concerned with situations where the offender intends to cause or knows that he will likely cause a public servant to abuse, misuse, or improperly withhold the use of his or her lawful powers, as a result of the false information.

13.   The High Court held that the offence does not cover cases where a person gives false information with the intent of causing, or knowing that it will likely cause, the public servant to be ineffective and inefficient in exercising his lawful powers.

14.   Giving false information to a public servant who is carrying out his or her duties is a very serious matter.

15.   There can be very serious consequences, for example, when the Police are hunting for a suspect in a murder or sexual assault case, or when SCDF are responding to an emergency. The delay in identifying the offender could be a matter of life and death.

16.   Clause 12 therefore amends section 182 to cover cases where the offender gives false information intending, or knowing it is likely, that the false information would cause the public servant to do anything which he or she would not otherwise do .

17.   This would cover cases where the false information results in the inefficient exercise of the public servant’s lawful powers.

18.   In addition, Clause 13 amends section 186 of the Penal Code – which criminalises the voluntary obstruction of a public servant in the discharge of his or her public functions.

19.   The amendment makes clear that the act of giving of false information to a public servant can amount to obstruction, even if there was no physical obstruction or the use of threats.

20.   Whether the false information does in fact amount to obstruction is a question of fact for the court to determine in each case.

21.   In addition, the maximum imprisonment term under section 186 will be increased from three to six months.

22.   These amendments will strengthen our levers to deal with offenders who deceive public servants and in so doing, harm the public interest.

Clarifying the Scope of Certain Offences

23.   Turning to the other offences, first, Clause 23 amends section 376 of the Penal Code, which provides for the offence of sexual assault involving penetration.

24.   Subsection (1) of section 376 makes it an offence for a male offender to cause a male victim to penetrate the offender’s anus or mouth with the victim’s penis, without the victim’s consent or where the victim is below 14 years of age. This subsection will be deleted, as the conduct is already covered under the broader subsection (2)(b).

25.   Today, the offence of sexual assault involving penetration is gender-neutral: it can be committed by males or females. Therefore, we will also amend the defence under section 376(6), so that both male and female offenders may rely on it.

26.   Next, Clause 28 amends section 376H of the Penal Code, which makes it an offence for a person to procure consent to sexual activity by deception or false representation.

27.   Clause 28 widens the offence to cover deception pertaining to the risk of the victim contracting a sexually transmitted disease, for example, a lie that the disease is not transmissible by sexual intercourse.

28.   The offence will also be widened to cover cases where the offender deceives the victim into consenting to being touched by a third person, or into touching the bodily fluids of the offender or another person.

29.   Clause 29 amends the offence of sexual penetration of a corpse. The offence currently prohibits a man from penetrating a corpse’s vagina, anus or mouth with his penis. It also prohibits any person from causing a man to do so, without the man’s consent.

30.   The proposed amendments will (i) criminalise other forms of sexual penetration involving corpses; and (ii) make the offence gender-neutral.

31.   Clause 30 broadens the scope of the offence of voyeurism under section 377BB, by replacing the term “genitals” with “genital region”.

32.   This will ensure that the offence is wide enough to cover cases where the offender manages to capture an image of the victim’s genital region, but not the genitals themselves.

33.   Clauses 31 and 34 deal with the definitions of “child abuse material” and “abusive material” under section 377C and section 377BL.

34.   Currently, “child abuse material” and “abusive material” include material that depicts an image of a minor’s breasts, or genital or anal region, in circumstances which reasonable persons would regard as being offensive.

35.   We will amend this definition to cover images of a minor’s genital region, buttocks, or breasts, whether exposed or covered .

36.   This will enhance protections for minors, by ensuring that the relevant offences apply to sexual images of scantily-clad children, or close-up images of the child’s genitals, buttocks, or breasts – even if covered by clothing – in circumstances which reasonable persons would regard as offensive.

37.   In addition, the Bill clarifies that the depictions must be sexual in nature. This will make clear that the intent is not to cover non-sexual depictions of minors, such as diaper advertisements.

38.   Finally, Clause 10 rationalises the punishments for abetting and attempting to commit serious offences that are punishable with death or life imprisonment – but where the offence was eventually not committed.

39.   Currently, under section 512 of the Penal Code, a person who attempts to commit an offence punishable with death or life imprisonment will face a maximum imprisonment term of 20 years.

40.   However, where a person abets the commission of an offence punishable with death or life imprisonment, but that offence is ultimately not committed, section 115 only provides a maximum imprisonment term of 15 years.

41.   This is even though an abettor under section 115 may be equally culpable as, or even more culpable than, a person who attempts to commit such an offence.

42.   For example, a person who conspires with another to murder a victim, where the murder was not carried out, could, depending on the facts, be just as culpable as a person who attempts but fails to murder the victim.

43.   We will therefore increase the maximum imprisonment under section 115 from 15 years to 20 years, for parity with section 512.

Clarifying the Operation of Certain Defences

44.   I now turn to the amendments relating to the operation of certain defences.

45.   Clauses 5, 6 and 7 amend the provisions relating to mistake or ignorance of fact, mistake or ignorance of law, and accident.

46.   These clauses are intended to provide greater clarity on the way these provisions operate. They do not change the general common law principles on burden of proof, namely, that the Prosecution must prove the elements of the offence, and that the accused person must prove a defence.

47.   Next, Clauses 8, 9 and 17 amend the defence of unsoundness of mind, the defence of intoxication and the partial defence of diminished responsibility.

48.   The amendments clarify that where an accused person claims that he was incapable of knowing that what he was doing wrong, by reason of unsoundness of mind, the accused person must prove that he was incapable of knowing that what he was doing was both wrong by the ordinary standards of reasonable and honest persons, and wrong as contrary to law.

49.   In other words, the two limbs are to be read conjunctively.

50.   This was in fact the position taken when the Penal Code was last amended in 2019, where we inserted the Illustration to section 84. The present amendments only serve to make this clearer, and do not change the state of the current law.

51.   Finally, Clause 20 amends section 352, which provides for the offence of using criminal force otherwise than on grave and sudden provocation. If criminal force was used on grave and sudden provocation, a less serious offence under section 358 will apply instead.

52.   Currently, the explanation under section 352 provides that the partial defence of grave and sudden provocation does not apply if, among other things, the provocation was given by anything done in obedience to the law or by a public servant in the lawful exercise of the public servant’s power. This means that an accused person cannot rely on the partial defence in this scenario, even if the accused person did not know and had no reason to believe that the provocation was given by anything done in obedience to the law or by a public servant in the lawful exercise of the public servant’s power.

53.   The amendment will broaden the scope of this partial defence so that an accused person can rely on the partial defence if he did not know and had no reason to believe that the provocation was given by anything done in obedience to the law or by a public servant in the lawful exercise of the public servant’s power.

54.   This aligns the partial defence of grave and sudden provocation under section 352 with the partial defence of grave and sudden provocation for more serious offences such as murder, voluntarily causing grievous hurt, and voluntarily causing hurt. Similar amendments will be made to the partial defence of provocation where it appears in other Penal Code provisions.

Modernising the Language of Certain Provisions

55.   Lastly, this Bill seeks to modernise the language of certain provisions under the Penal Code.

56.   As part of our continuing efforts to ensure that the law is more easily understood by present-day readers, clauses 11, 14, 15, 16, 32, 33 and 39 replace certain archaic terms, such as “wantonly”, “maliciously”, “malice” and “malignantly”, with modern terms that are more easily understood and already defined in the Penal Code, such as “rashly” and “intentionally”.

Conclusion

57.   In conclusion, these amendments strengthen our laws, and clarify their application.