Second Reading of the Criminal Law (Temporary Provisions) (Amendment) Bill - Speech by Mr K Shanmugam, Minister for Home Affairs and Minister for Law

1.     Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Renewed every 5 years with support from all Members of House

2.     The CLTPA was last extended in 2014. As Members know, it will lapse, after five years unless extended.

Examples of the use of CLTPA

(i) Secret Societies

3.     Let me first give some examples of how CLTPA has been used before I go into the specific amendments.

4.     In 2017, the CLTPA was used to cripple two gangs operating in Singapore. The first comprised mainly young Indian gang members, most of them in their teens to the 20s, led by a headman in his 30s. They carried out armed attacks against rival gang members. They also attacked a fellow gang member as punishment for leaving the gang. A member wanted to leave. They ambushed him. At least 10 of them assaulted him. And then, the headman called up all the others and said, "If any of you dare to leave the gang, the same thing will happen to you. You will be attacked as well." Police got on to the case. The members did not want to testify against the headman and the CLTPA was used. They were prepared to give evidence; they were prepared to testify but they did not want to so in public. They feared as to what would happen to them.

5.     The second gang comprised Chinese males in their mid-20s to 30s. Many of them had antecedents for very serious criminal offences. They attacked others, used weapons to settle their disputes. They attacked innocent club patrons, including women. The attacks were quite brazen. They also openly threatened club staff.

6.     Again, in both cases, the victims were unwilling or unable to identify the attackers. The gang members were prepared to give evidence but not in court for fear of reprisals. And really, without CLTPA, it would have been difficult to deal with the gangsters. So, that is, if you look at gangsters.

(ii) Drug Traffickers

7.     We also used the CLTPA again in the context of drugs. CNB uses it and many drug trafficking syndicates have been crippled using the CLTPA. Often, because they fear attacks on them and their families, the couriers will not want or refuse to testify in court. And if we let that situation develop, it will affect our ability to deal with the leaders of the drug syndicates.

8.     So, the use of the CLTPA has helped us keep the drug situation under control. But, and I have given instructions on this, the approach has to be that wherever we can, we must use the criminal justice system and not the CLTPA. And that is the approach that is taken.

9.     In fact, if you look at the Detention Orders (DOs) that are issued under the CLTPA against drug traffickers, in 1998, there were 192 such DOs; last year, none – zero.

10.     Sir, with your permission, can I put up the slides? I will just show two slides to Members.

11. The first one is on drugs. It is a very simple picture. But we want to retain the CLTPA as a tool of final resort, if necessary. And I think it is useful to give Members a picture of the total number of detainees, not just for drugs but the total number.

12. In 2010, seven years ago, the number was 317. Members will see from the chart – it is now just about 103. Again, the approach is, where we can, we move to the criminal justice system and use the CLTPA as sparingly as possible.

13. I have to tell the House, while the drug situation is under control, the challenges are significant and they remain. I have spoken at length over the last few years about the drug issues in the region, in the world, and in Singapore. If you look at the World Drug Report, for this region, if you look at the sources of meth in East Asia and Southeast Asia in 2015, East Asia and Southeast Asia were amongst the highest globally among regions and we have achieved an unwelcomed record in that we have overtaken North America for the first time as a source.

14. Southeast Asia, together with East Asia, is also the second-highest source of opium. The seizures of heroin and morphine related to the production of opium in Southeast Asia grew by nearly 90% in the five years between 2010 and 2015. We turn to ketamine. The seizure of ketamine, if you look at what was seized in the world and what proportion was seized in this region, 97% of all ketamine seized in the world was from this region in 2015. So, that is the nature of the problem that we face. I have shared with Members before – 50 million people passed through our airports; another 150 million passed through our checkpoints – we have to be very, very serious about the drug situation. So, the Misuse of Drugs Act is very effective but we have this CLTPA as a backup.

(iii) Unlicensed Money Lenders (UML)

15. The third situation that I would share with Members is the Unlicensed Money Lenders.

16. The CLTPA has been used against persons involved in loansharking activities. We have been clear about that in this House. The Moneylenders Act was amended in 2010. It gave Police broader powers to tackle the UML situation.

17. We attack the UML situation from different aspects and that has resulted in, again, a drop in the number of DOs issued for UML. If you look at 2004 to 2010, on an average, during that seven-year period, we issued about 20 DOs per year for UML. If you look at 2011 to 2017, that has dropped to about two per year. And, again, we have used the court processes to prosecute UML offenders. But again, there will be cases where the runners will refuse to testify against the kingpins. The towkays , those higher up in the organisation, they operate behind the scenes, they do not have direct dealings with the debtors.

18. In 2015, for example, the Police arrested the mastermind of a loansharking syndicate. Many of the syndicate members were also arrested. The main operators were based in Malaysia and Thailand. They do so to avoid arrest and detection. The lowest tier – the harassers, runners and bank account holders – they operate out of Singapore out of necessity.

19. That syndicate alone was responsible for more than 600 cases of harassment since 2006. Members of Parliament (MPs) will know this; residents come to you. These people who harass would set fire to the residents' doors, they lock them up – serious safety issues; they splash paint, they break flower pots, they scribble graffiti and, of course, they deliver "hell-notes" as well. The whole idea is to frighten the debtor or whoever is in the house and sometimes, it is somebody else who have moved in, and frighten everyone around, innocent people as well. Again, the syndicate members were unwilling to testify against the leader and other more senior members.

(iv) Syndicates

20. Fourth, we also use the CLTPA, sometimes to detain members of syndicates. There was a case: global match-fixing syndicate. The head made it known to his members that he would kill or harm any person who betrayed him and the syndicate. One person was, in fact, attacked on his orders. The syndicate members were quite unwilling to testify in court against him. But his criminal activities were dangerous, detrimental to our public safety, peace and good order. So, we used the CLTPA.

21. Unlike other countries, our physical size, smallness, also makes it difficult for us to relocate witnesses in such a way as to assure them and their families of their physical safety. In bigger countries you can do that. And so, given our local circumstances, our law enforcement agencies will not be able to totally satisfy witnesses that their concerns will not bear out.

22. That is a brief summary of the types of situations we have used the CLTPA.

23. Now let me take the House through the proposed amendments.

Introduction of Fourth Schedule setting out the list of "activities of criminal nature" that allows for detention or Police supervision

24. The Act provides for the Minister to detain any person for a period not exceeding 12 months, or place the person under a Police Supervision Order for up to three years – we call them DOs and PSOs. This can be done if the Minister is satisfied that the person has been associated with activities of a criminal nature and it is necessary that the person be detained in the interest of public safety, peace and good order.

25. The Court of Appeal accepted, in the Dan Tan case, and I quote, "section 30 of the CLTPA is similar to sections 8(1) and 10 of the Internal Security Act (ISA) in that power has been given to the Minister, to make the decision as to whether the detention would be in the interests of public safety, peace and good order."

26. The Court of Appeal also said the phrase, I quote, "persons associated with activities of a criminal nature" is wider than persons who had committed a crime.

27.     So, the current approach gives a degree of latitude to the Minister on what activities could be the subject of a DO.

28. I have thought further about this. Should we continue to leave it as it is? Or would it be better to list the type of criminal activities in a Schedule to the Act?

29. I have decided that we should actually just list it. That gives more clarity to the public and everyone on which types of activities could be the subject of a DO.

30. So, clause 3 states that the Act applies to "activities of a criminal nature" that will be specified in a new Fourth Schedule. Clause 8 of the Bill inserts this Fourth Schedule.

31. The activities that are currently proposed to be listed have been either activities which have been previously dealt with under the Act or previously been mentioned in Parliament as being within the scope of the Act.

32. Activities relating to the participation in or facilitation of activities for Organised Criminal Groups are also included.

33. The new Fourth Schedule will also set out the powers of the Minister in respect of DOs and PSOs. It will list the types of criminal activity in relation to which the Minister can make DOs and PSOs under section 30 of the Act. But, of course, section 30 sets out the fundamental requirements.

34. In exercising the power, the Minister will thus have to be satisfied, which is the current position, that the facts satisfy the criteria set out in section 30. That is still necessary. In addition, it has to be criminal activities that are listed in the Schedule.

Codification of current law in relation to finality of Minister's decisions

35. Now, let me deal with clause 3. Clause 3 of the Bill inserts a new section 30(2) which states that every decision of the Minister on a matter under section 30(1) is final.

36. There seems to be some misunderstanding on the effect of this proposed clause. There have been suggestions that this legislatively overrules the grounds for judicial review stated in Dan Tan . That is not the case. Let me make that clear, let me explain. Anyone who knows the law will know that cannot be the case.

37. This Act allows for detention or PSO on the Minister's orders, and it sets out the grounds and processes for making such an order. It sets out the rights of the detainee and the supervisee, including the right to have his detention or PSO reviewed or considered by an Advisory Committee.

38. The Minister has to be satisfied that the grounds for detention or PSO exist. The application of the facts to the relevant orders, and whether the order should be made under the CLTPA, have always been for the Minister to decide. The Court of Appeal in Dan Tan pointed that out, accepted that. It said that Parliament may decide to entrust the power and the responsibility to make a decision to a particular decision-maker, and in the case of the CLTPA, that is the Minister for Home Affairs.

39. The courts are not to substitute their views of the facts, or engage in the exercise of scrutinising the evidential basis of detention. And as I have said, that has always been the position under the CLTPA and accepted to be so by our courts. Clause 3 sets that position out.

40. Judicial review is a different matter. It will be available in respect of CLTPA on the traditional, well-established grounds – illegality, irrationality and procedural irregularity. Again, these classic principles for judicial review have been set out in case law and have been applied for many years. My views on the applicability of judicial review are restricted to the CLTPA. I am not proposing here to make general pronouncements on the applicability of judicial review to other legislation because different pieces of legislation have different wordings. My views and comments are directed towards the current Bill and the Act.

41. Clause 3 does not seek to affect the right of judicial review on the three well-established grounds Even if I did not say all these, it cannot, anyway. Anybody who knows the law will know that. These principles were accepted in the Dan Tan case.

42. So, let me summarise. The Court of Appeal accepted that under the Act, the Minister had the power and the responsibility to make decisions as to what the facts were, apply those facts to the relevant rules and considerations and exercise his discretion consequently.

43. The Court of Appeal also said that the scheme of the Act is such that the evidentiary basis for the detention is not scrutinised by the courts.

44. Third, as long as the detention is within the ambit of the legislation, the Court of Appeal accepted that the power to determine the factual basis for detention, as well as whether this is warranted in the circumstances, lay with the Executive.

45. However, the courts retain the power to review the Minister's decisions under the Act based on the classic judicial review principles, and I have said what they are, the three grounds. That continues to be the position; it is unchanged. So, it crystallises the position as it stands now.

Codification of practices relating to Police supervision

46. The third objective of these amendments is to set out in subsidiary legislation the obligations on a person subject to Police supervision. This is currently in the main legislation.

47. By clause 4, we are seeking to make amendments relating to these persons who could be subject to PSOs. We want to remove them from the main Act and set them out in rules under section 49. Why? Because these conditions need to be tailored to meet the needs of the specific individual. For example, how do you rehabilitate them? To what extent is counselling necessary? It is very difficult to have these in the main legislation. So, we put them in the conditions, to tailor it according to the needs of the individual persons.

48. Section 33(1) and (2), which are repealed and re-enacted by clause 4, enables the Minister to impose different prescribed condition on each supervisee based on the different risks and needs of each supervisee.

49. Clause 4 also states that a person subject to supervision – conditions are imposed on him but he cannot comply with them because he is in prison or he is under a court order – then, obviously, he must be excused from having to comply with the conditions.

50. Clause 5 repeals section 36 of the Act. Section 36 will no longer be required. These restrictions will be set out under the rules to be made under section 49.

51. Next, let me move to the provision of powers to CNB.

Provision of powers to CNB to investigate breaches of supervision orders

52. Currently, CLTPA supervisees report to both Police and CNB. But where there are breaches of the PSOs, the orders, only police officers have the powers to investigate. Clause 7 will now provide CNB officers with the powers to investigate breaches of PSOs.

Renewal of Act

53. The Bill also seeks to renew the Act for a further five years with effect from 21 October 2019. The Act was last extended in 2014. It will expire in 2019. It seeks to provide for extension for five years.

Malaysia's experience with preventive detention

54. Sir, I had earlier explained why we continue to need the CLTPA in Singapore. I think it is useful to consider Malaysia's experience. In 2011, Malaysia repealed its "Emergency (Public Order and Crimes Prevention) Ordinance 1969". This law allowed for preventive detention of criminals in the interest of public order, the suppression of violence and the prevention of crimes of violence. They repealed it and then they faced significant problems. The Malaysian Parliament then introduced the Prevention of Crime Act 2013, which reinstated preventive detention. One of the Malaysian newspapers reported the Home Minister, Datuk Seri Dr Ahmad Zahid Hamidi as saying the following in the Second Reading in 2013:

55. "After the repeal of the Emergency Ordinance and Restricted Residence Act, 9,095 detainees from Simpang Renggam detention centre were released and assimilated with the society. This year alone, there were 109 shooting cases and all of them involved the secret societies." [1]

56. That just illustrates that there is usually a trade-off. We prefer not to give such powers to the Executive. Then we must be clear eyed about the trade-offs. I think it is difficult to say one approach or the other clearly must be followed, but we must be clear. Often, arguments proceed on the basis that we can have the current situation of law, order and security without any trade-offs, and yet we can do away with the CLTPA. That is not possible. So, you must be prepared to face after that.

57. The trade-off that the Government has taken, which Parliament has agreed for many years, is that we give these powers, we impose safeguards and we look at the situation every five years.

Safeguards

58.     Let me now just touch on the safeguards in the Act. There are six that I will share.

59. First, any proposal by Police or CNB to detain a person under the Act or to place him under Police supervision will be looked at carefully, by both senior officials in my Ministry, Ministry of Home Affairs, as well as the Attorney-General's Chambers. The practice is that the Minister only issues a DO or a PSO after this process and upon considering the opinions of senior officials.

60. Second, the Minister must get the consent of the Public Prosecutor before making a DO or PSO.

61. Third, there is an independent Advisory Committee. It comprises prominent private citizens including senior lawyers. They have to scrutinise the investigations and documentary evidence. The committees may examine detainees, supervisees, IOs, witnesses. They can also require further investigations of aspects of the case. Detainees and supervisees will have the opportunity to present their cases to the committees. They can be represented by legal counsel. The committees eventually make their recommendations to the President, who may cancel or confirm the DO or SO. In exercising the powers, the President may also vary the order but the President acts on the advice of the Cabinet.

62. Fourth, detention orders are reviewed annually by a different Advisory Committee.

63. Fifth, a different Advisory Committee yet again considers all cases of detention if they extend beyond 10 years. So cases where persons are detained for more than 10 years are specially scrutinised, to understand why such a period of detention continues to be necessary.

64. Sixth, of course, as I mentioned earlier, the Government has to come to Parliament once every five years to renew the Act. There have been calls in the past to make the Act permanent but we believe that the Act should be explicitly extended by Parliament every five years.

High Court Judges to chair Advisory Committees

65.     Now, in addition to the legislative amendments proposed, I would like to inform the House of another development. I mentioned the Advisory Committees (ACs) earlier. From March this year, 2018, the ACs will be chaired by sitting Judges of the Supreme Court of Singapore. This does not require legislative amendment. I have spoken with the Chief Justice on this and he is agreeable to have Judges chair the ACs. Why is this being done? This is something that I have been wanting for years and we are now doing it.

66. The Advisory Committee, as I mentioned above, is an essential safeguard for the system. The ACs being chaired by sitting Judges will make the process more robust. Sir, I beg to move.

[1] Martin Carvalho, Rahimy Rahim and Loshana K Shagar, 'Prevention of Crime Act passed after heated debates', Star Online , 3 Oct 2013, https://www.thestar.com.my/news/nation2013/10/03/parliament-pass-pca-bill