Parliamentary Speeches
Second Reading on the Organised Crime Bill - Speech by Mr S Iswaran, Minister in Prime Minister’s Office and Second Minister for Home Affairs and Trade & Industry
17 August 2015
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Madam Speaker, I beg to move, "That the Bill be now read a second time."
Introduction
2. Madam, globalisation has increased the transnational reach of organised criminal groups (OCGs). Advances in technology enable OCGs to operate with greater ease across national borders and reap substantial benefits. For example, in February 2015, Australian Police seized illegal drugs worth A$12 million [1] from an international drug syndicate, and arrested Hong Kong and Canadian nationals. In 2013, Hong Kong Police arrested more than 1,800 people in a major crackdown on triads covering Hong Kong, Macau and parts of mainland China. They have been charged with offences such as illegal gambling and money laundering. [2]
Need for the Organised Crime Bill
3. Madam, Singapore is one of the safest cities in the world but we are not immune to the threat of organised crime. Our law enforcement agencies have detected the work of organised syndicates behind some serious criminal offences such as drug trafficking and unlicensed moneylending. A serious offence is a threat in its own right. But it poses an even bigger threat to our safety and security when perpetrated by an organised crime syndicate. Such organised criminal groups are well-resourced and able to mount and sustain large-scale illegal activities over a prolonged period.
4. OCGs often operate across jurisdictions. Their leaders mastermind and finance criminal activities from overseas to deliberately distance themselves from their henchmen who execute the actual crimes. Therefore, the highest echelons of OCGs are often able to evade detection and arrest. Even when apprehended, it is more difficult to secure a conviction against them because of the structure of their organisations and their indirect link to the criminal acts.
5. Hence, we need laws that target the pernicious activities of OCGs, and those in their higher echelons. They are the ones who instruct and intimidate others into criminal acts, yet are most shielded from enforcement. That is why we need an Organised Crime Bill ("the Bill") - to enhance our ability to disrupt the activities of OCGs at various levels of their hierarchy so as to prevent them from establishing a foothold to perpetrate serious crimes.
6. In developing the Bill, my Ministry has drawn reference from legislation in the United Kingdom, Hong Kong, New Zealand, Australia, and Canada, as well as the UN Convention on Transnational Organised Crime (UNTOC). My Ministry has also consulted the legal fraternity in Singapore and incorporated several of their suggestions.
Key Features
7. Madam Speaker, let me now take Members through the key provisions of the Bill.
Defining the OCG and Serious Offences
8. Clause 2 of the Bill defines an OCG as a group that comprises at least three persons, however organised, which has as one of its objectives the obtaining of material or financial benefits from the facilitation or commission of any serious offence.
9. There are 3 key elements to this definition.
10. First, the OCG must comprise at least 3 persons. The focus is on groups that pose an organised crime threat to Singapore. This approach is similar to the UNTOC, and laws in Canada, New Zealand and Australia. The Bill does not target ad hoc groups that commit isolated crimes.
11. Second, the purpose of forming the group must be to obtain a financial or other material benefit from the commission of serious offences. These serious offences comprise the third element and are listed in the First Schedule to the Bill. These are offences like murder, drug trafficking and unlicensed moneylending under existing laws such as the Penal Code, the Misuse of Drugs Act and the Moneylenders Act.
Criminalising OCG-related Activities
12. Part 2 of the Bill sets out the general offences relating to the activities of an organised criminal group (OCG). The provisions under Part 2 allow our law enforcement agencies to tackle organised crime activities which threaten safety and security in Singapore, even if these acts are committed outside Singapore. I will now elaborate on the key clauses and will refer to them as Part 2 offences.
13. Clause 5 makes it an offence to be a member of an organised crime group.
14. Clause 6 criminalises the recruitment of members for an OCG. The penalties for this offence are enhanced if the person recruited is a vulnerable person or a person who is below 21 years of age.
15. Clause 7 makes it an offence to instruct a person to commit a Part 2 offence or any other offence for an OCG. This targets the masterminds and leaders who wield significant influence, control the finances, make key decisions, and instruct others to execute the criminal activities. Our intent is to punish the person who instructs the commission of offence for the OCG, i.e. the "brains" of the operation, more severely than the person who carries it out.
16. Clauses 8 and 9 make it an offence to provide or procure aid to commit a Part 2 offence or any other offence for an OCG. Clauses 10 and 11 respectively make it an offence to allow organised criminal groups to use one's premises to conduct illegal activities, and for any person to deal with the illicit property of OCGs. The aim is to deprive OCGs of resources. The penalties for these offences in relation to an individual are imprisonment for up to 5 years, or a fine of up to $250,000, or both.
17. Clause 12 makes it an offence to facilitate the commission of Part 2 offences or serious offences for OCGs and the penalties in relation to an individual are imprisonment for up to 5 years, a fine of up to $100,000, or both. 18. Clause 13 empowers a court to impose enhanced penalties for the commission of any offence if the offence is committed at the direction of or for an OCG. The Bill doubles the maximum fines associated with the offence; and the maximum imprisonment term will be increased by 2 or 5 years.
Powers and Orders on Conviction and Non-Conviction basis
Application for Orders and Powers on Civil Basis
19. Madam Speaker, now let me turn to the Orders and Powers that can be issued on a conviction and non-conviction basis. Our enforcement agencies always seek to prosecute criminals in court and secure a conviction. Where appropriate, upon such criminal conviction, the sentencing court can also order the confiscation of benefits of crime under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (CDSA). 20. However, criminals in the upper echelons of OCGs often create many layers and elaborate structures to distance themselves from the criminal acts. Hence, it is not always possible to prosecute such criminals and secure a conviction beyond reasonable doubt. To effectively disrupt the activities of an OCG, and deny such criminals their ill-gotten gains, we need other levers.
21. This Bill will therefore provide for the issuance of Preventive Orders and a Civil Confiscation (CC) regime. Applications for some of these Orders and for civil confiscation will be heard in civil proceedings, which are separate and independent of any criminal proceedings. This means that the application can still proceed even if the person has not been charged or has been acquitted. These Orders can also be made against a person who has committed a serious offence associated with an OCG before this Bill comes into force.
Preventive Orders
22. Madam Speaker, the Bill provides for the Courts to issue 3 Preventive Orders - the Organised Crime Prevention Order, the Financial Reporting Order and the Disqualification Order. These Orders aim to safeguard law and order and protect the public by preventing, restricting or disrupting the involvement of persons in organised crime.
Organised Crime Prevention Order
23. Clause 15 provides for an Organised Crime Prevention Order which can be made to restrict a person's activities whether or not he is convicted i.e. on a conviction or non-conviction basis. These include restrictions on the premises to which a person may have access, and how he may associate with others. Before an Order is issued, the Court must first be satisfied that the person has been involved in a part 2 offence (such as recruiting an OCG member), or a serious offence associated with an OCG; and, second, have reasonable grounds to believe that the Order would protect the public by preventing, restricting or disrupting any involvement of the person in such offences.
24. Clause 17 specifies that an Organised Crime Prevention Order can be in effect for up to 5 years. Clause 19 provides for such persons to be monitored by means of an electronic device.
Financial Reporting Order
25. Clause 21 provides for the Court to issue a Financial Reporting Order requiring a person to furnish financial reports as required. This Order can be issued on a conviction or non-conviction basis.
26. Clause 22 specifies that the Financial Reporting Order can be in effect for up to 5 years, when issued on a non-conviction basis. When issued upon conviction, the Order can be in effect for up to the period of imprisonment imposed plus 5 years.
Safeguards Relating to OCPO and FRO
27. The Organised Crime Prevention Order and the Financial Reporting Order are subject to a number of important safeguards. All applications have to be made by the Public Prosecutor. Applications that are made on a non-conviction basis must be heard by the High Court. The subject will have the opportunity to be heard before an Order is made. In addition, third parties can make representations or appeals against the making, varying or discharging of an Order.
Disqualification Order
28. Finally, the Disqualification Order, which can be issued only on a conviction basis, serves to prevent the person from acting as a company director or taking part in the management of a company. The maximum duration of the Order is aligned to the Disqualification Order provided under the Companies Act.
Civil confiscation regime
29. Let me now turn to Part 9 of the Bill, which provides for the civil confiscation of benefits from organised crime activities on a non-conviction basis.
30. Madam Speaker, it is widely acknowledged that the primary motive for organised crime is financial gain. Organised crime is big business involving large sums of money. The UN Office on Drugs and Crime estimates transnational organised crime to be a global business worth US$870 billion [3] .
31. To effectively deal with organised crime, we must be able to deprive these criminals of their ill-gotten gains. This would also diminish the incentive and the resources for persons to carry out organised crime activities. This is the ultimate objective of the civil confiscation regime.
32. This civil confiscation regime is similar to the conviction-based regime for the confiscation of criminal benefits under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (CDSA). The main difference is that a confiscation order may be obtained under the Bill by proving, on a civil standard of proof (i.e. on a balance of probabilities rather than beyond reasonable doubt) that a person has carried out organised crime activities.
33. The proposed CC regime is not unique to Singapore. New Zealand, Australia and the UK have similar regimes, which typically extend beyond organised crime to include benefits and proceeds derived from serious offences committed by individuals. This Bill confines our CC regime to organised crime.
34. The main provisions of the CC regime are largely similar to those in the CDSA, with changes made for a non-conviction based model of confiscation, and the introduction of additional safeguards.
Confiscation Orders
35. Clause 61 provides for the Public Prosecutor (PP) to apply to the High Court for a confiscation order. The High Court will issue a confiscation order, if it is satisfied on a balance of probabilities that the subject has: (a) carried out organised crime activity within the statutory period of 7 years; and (b) derived benefits from the organised crime activity. Similar to the CDSA, the subject is presumed to have benefited from the organised crime activity if he holds property that is disproportionate to his known income sources, and is unable to explain those holdings to the High Court's satisfaction.
36. Under a confiscation order, the subject is required to pay an amount equivalent to the value of his benefits from the organised crime activity. The amount is recoverable as a judgment debt due to the Government.
Restraint and Charging Orders
37. Clauses 56 to 60 provide for the High Court, on application by the Public Prosecutor, to issue orders which restrain the property of the subject from being disposed of or dealt with. The High Court can also impose charges on the property of the subject for the purpose of securing payment of money to the Government.
Safeguards in the CC regime
38. Madam Speaker, substantial safeguards have been incorporated into the CC regime. First, all applications have to be made by the Public Prosecutor, and heard in the High Court. There is also a provision for appeals to be made to the Court of Appeal. Second, there is a statutory limitation period to the CC regime. The PP must commence CC proceedings within 7 years of the subject carrying out the organised crime activity. Third, the Bill protects the property rights of innocent third parties. In addition, the High Court has the power to provide relief from confiscation, if it is assessed that the confiscation would result in undue hardship to the subject or third parties.
Conclusion
39. Madam Speaker, the Organised Crime Bill targets organised criminal groups because they pose a significant threat to our safety and security, with their capacity and resources to commit crime on a larger scale and on a sustained basis. This Bill will criminalise and punish persons who carry out acts in support of OCGs. It will allow our law enforcement agencies to tackle organised crime threats decisively by strengthening their powers to detect and investigate OCGs, disrupt and curb their activities, dismantle their organisation, and deprive them of their ill-gotten gains.
40. The Organised Crime Prevention Order, Financial Reporting Order and the Civil Confiscation regime will allow us to take pre-emptive measures, not only on a conviction basis but also on a non-conviction basis with appropriate safeguards. Such powers have precedents in other reputable jurisdictions, and are vital to prevent organised crime and to deprive organised criminal groups of resources.
41. Taken together, the Organised Crime Bill will allow our law enforcement agencies to tackle the scourge of organised crime decisively.
42. Madam Speaker, I beg to move.
[1] Online news article from Australian Broadcasting Corporation at http://www.abc.net.au/news/2015-02-27/drugs-cash-seized-in-joint-police-operation/6268966
[2] Online news article from BBC at http://www.bbc.com/news/world-asia-china-23825028
[3] UN Office on Drugs and Crime Annual Report 2014
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