Executive Summary of Council’s Report on the Proposed Amendments to the Penal Code

 

 

The following is an extract of the Council’s Report on the proposed Penal Code Amendments submitted to the Ministry of Home Affairs.*

 

 

1. Background

 

On 8 November 2006, the Ministry of Home Affairs ('MHA') invited the Law Society to give its views on MHA's proposed amendments to the Penal Code.

 

After considering members' feedback and the written views of the ad hoc committee, Council submitted its views on the proposed amendments to MHA (the 'Council's Report') on 30 March 2007.

 

Below is an extract of the executive summary of the Council's Report.

 

 

2. Summary

 

The proposed reforms to the Penal Code aim to keep the law in step with changes in modern Singapore. For instance, they address new technological developments, revise fines to adjust for changes in the purchasing power of money since 1961, repeal archaic offences such as enticement and clarify important definitions such as imprisonment for life.

 

Council discussed the underlying legal philosophy of the criminal law. The majority view was that the role of the criminal law is twofold: to punish those who cause harm to others and to punish those whose conduct causes a breach of public order. The use of the criminal law to punish persons on the ground that their conduct is morally repugnant to another section of society is out of step with legal norms in the modern world, and represents an intrusion of morality into law. A significant minority however believed that a legitimate function of the criminal law is to determine limits to behaviour or conduct that is considered by a majority in society to be morally unacceptable. While such behaviour or conduct may be criminalized, the relevant authorities ultimately determine the efficacy and practicality of prosecution.

 

In our response, where appropriate, we have referred to the MHA’s Consultation Paper on the proposed Penal Code amendments (the 'Consultation Paper').

 

Our response is divided into three sections:

  • Response to MHA's review of sexual offences in the Penal Code;

  • Response to MHA's review of other offences, definitions, explanations and expressions in the Penal Code; and

  • Response to MHA's review of penalties in the Penal Code.

 

 

3. Sexual Offences in the Penal Code

 

We recognise the efforts MHA made in updating and rationalising the sexual offences in the Penal Code in the proposed amendments in this area. Historically, the Penal Code follows the structure of prescribing firstly, the basic actus reus and mens rea of an offence, secondly, the penalty involved and thirdly, the increasing degrees of penalties for various aggravating forms of such an offence. Such a structure ensures that the essential legal ingredients of the offence concerned are clear and the reader is given a systematic and graduated understanding of the offences, from the basic to the aggravated forms.

 

We have some significant concerns about the impact of the proposed amendments to the fundamental structure of the Penal Code, some of which are briefly set out as follows:

 

3.1   Outrage of modesty of minors under 14 years of age under s. 354(2)
Council is of the view that it is unnecessary to repeal the old s. 354 and add a new s. 354(2). If a minor’s modesty has been outraged, the courts can take the aggravating circumstances into account and order an appropriate sentence accordingly. Even if it is necessary to introduce s. 354(2), the complete irrelevance of consent and the apparent lack of a mens rea element in s. 354(2) do not provide for a valid defence, in contrast to the defence in s. 140(5) of the Women’s Charter for a carnal connection offence.
     
3.2   Marital rape immunity under s. 375(4)
The proposed amendment to s. 375(4) to withdraw the existing marital rape immunity partially is welcomed as it seeks to preserve the balance between preserving the husband-wife relationship and therefore the family unit on the one hand while not condoning marital rape as an instance of marital violence on the other. However, this balance may be better achieved by fine-tuning the drafting of s. 375(4).
     
3.3   Concept of mental disability under s. 376E
Mental disability is a scientific and specialized concept which is susceptible to different professional views and opinions. The detection of mental disability, treatment of episodic mental disability and distinctions between the different consequences of mental disability do not appear to be sufficiently addressed by the proposed definition of ‘mental disability’ in s 376E(6)(a).
     
3.4   Retention of s. 377A
 The majority of Council considered that the retention of s. 377A in its present form cannot be justified. This does not entail any view that homosexuality is morally acceptable, but follows instead from the separation of law and morals and the philosophy that the criminal law’s proper function is to protect others from harm by punishing harmful conduct. Private consensual homosexual conduct between adults does not cause harm recognisable by the criminal law. Thus, regardless of one’s personal view of the morality or otherwise of such conduct, it should not be made a criminal offence. Moreover, the assurance given by MHA in the Explanatory Notes to Proposed Amendments to the Penal Code that were initially issued by MHA that such conduct will not be proactively prosecuted under this section is an admission that the section is out-of-step with the modern world. The retention of offences on the statute book that covers conduct that will not in fact be prosecuted runs the risk of bringing the law into disrepute.

Council recognised that the above view did not necessarily represent the views of its members collectively. A significant minority of Council members as well as numerous members of the Society at large have an opposing view, and strongly support the retention of s. 377A in the Penal Code. They took the view that the criminal law can and should be deployed to define what the majority or a significant proportion of society believe to be unacceptable conduct, which includes the moral unacceptability of homosexual conduct even when it takes place in private between consenting adults, and that there are sufficient jurisprudential and logical grounds for this.

Differing views were expressed on the constitutionality of s. 377A. In other jurisdictions, legal discrimination based on sexual orientation has been considered against constitutional guarantees of equal protection. Council did not come to a concluded view on the constitutionality of s. 377A.
     
3.5   Repeal of the defence of reasonable mistake as to age through s. 377D
The denial to an accused person of a statutory defence of reasonable mistake as to the age of a person upon his second trial for a similar offence may lead to severe prejudice and unfairness. s. 377D(3) creates a curious anomaly and does not promote the ideal that justice should be seen to be done.


In view of the above, it may be appropriate for MHA to consider undertaking a complete review of the sexual offences regime under the Penal Code by enacting a new chapter in the Penal Code concerning sexual offences. MHA may wish to consider the following features on which to base the reform of the sexual offences regime under the Penal Code:

  • Sexual intercourse should be defined;

  • The fundamental actus reus and mens rea for the offence of sexual assault simplicitur should be defined; and

  • This would be followed by the prescription of additional actus reus and mens rea for aggravated offences of sexual assault of increasing severity.

 

Harmonisation of the proposed Penal Code amendments with those of the Women’s Charter is also essential. We suggest that MHA examine s. 140(1)(i) of the Women’s Charter on the age of consent of a woman, as there appears to be a conflict on a woman’s age of consent under the proposed amendments and the Women’s Charter. Additionally, the suitability of the various ages stipulated in the Penal Code, Women’s Charter and Children and Young Persons’ Act as legal thresholds (e.g. the age of consent) should be carefully considered, perhaps with the assistance of statistical data.

 

 

4. Other Offences, Definitions, Explanations and Expressions in the Penal Code

 

Council recognises that MHA has expanded and modified the scope of existing offences, as well as introduced new offences, to take into account new technological developments. Be that as it may, we are concerned about the necessity and desirability of many of the proposed amendments, some of which are briefly set out as follows:

 

4.1   Expanding the scope of unlawful assembly beyond offences against public tranquillity and increase in penalty
 The offence of unlawful assembly is for the purpose of protecting public order. Gathering together for the purpose of committing some other offence can be dealt with by accessory liability for that other offence. No justification has been given for the expansion of the scope of this offence, or for the fourfold increase in the term of imprisonment that it carries.
     
4.2   Promoting enmity between different groups on ground of religion or race under s. 298A
 While we understand the need to deal with the potential for divisive religious or racial acts or words, the reference to ‘communities’ under s. 298A should be deleted as the constitution of such ‘communities’ is unclear. Also, such ‘communities’ do not appear to fall within the mischief of s. 298A that is sought to be prevented, i.e. disharmony among racial and religious groups on racial and religious grounds.
     
4.3   Introduction of new provisions which are adequately addressed under other Singapore criminal statutes or other provisions in the Penal Code
 It does not appear necessary to introduce a number of new provisions which are adequately addressed under other Singapore criminal statutes or other provisions in the Penal Code. For example, there is much overlap between the proposed new offences under s. 204A and s. 204B and Chapter XI of the Penal Code and the Prevention of Corruption Act and it is not explained in the Consultation Paper why the present offences under the Penal Code and Prevention of Corruption Act are inadequate.
     
4.4   Significant extension of extra-territorial jurisdiction
 We are concerned about the extension of extra-territorial jurisdiction to offences committed by public servants overseas and abetment of offences by persons overseas under the proposed new s. 4 and s. 108B of the draft Bill. These proposed sections will create significant practical difficulties and Council recommends that a comparative study be carried out to ascertain how other jurisdictions have dealt with this matter.
     
4.5   Removal of the element of prejudice to public tranquility as a pre-requisite for unlawful assembly
 Given that the very essence of the concept of an unlawful assembly is protection of public tranquility, Council is of the view that the proposed amendments to s. 141 attempt to extract and will do away with the element of prejudice to public tranquility as a pre-requisite for unlawful assembly and the penal provisions associated with it.
     
4.6   Clarity on the scope of repealed but re-enacted offences
 Council notes that there are several difficulties with the repeal of s. 151A and its re-enactment as s. 267C in a different part of the Penal Code, in particular, the broad wording of the alternative limb of ‘counselling disobedience to the law or to any lawful order of a public servant' and the apparent lack of a mens rea element.
     
4.7   Clarity on the addition or removal of key concepts
 Many of the key concepts introduced to or deleted from certain offences are not explained in the Consultation Paper. For instance, the inclusion of ‘death’ under s. 320 as a form of ‘grievous hurt’ appears unnecessary as ‘death’ does not fall within the definition of 'hurt', i.e. bodily pain, disease or infirmity, in s. 319 of the Penal Code in the first place. Another example is the proposed amendment to s. 415 which would not require deception as the sole or main inducement. Also, the rationale for the new distinction between 'illegal' and 'legal' harm under the revised s. 383 and s. 385 is unclear.
     

 

 

5. Penalties in the Penal Code

 

MHA's proposal to revise the fines in the Penal Code, which were last reviewed in 1952, to adjust for changes in the purchasing power of money since 1961, is plainly defensible. Council also welcomes the proposed amendments to give courts increased discretion to mete out any combination of penalties of imprisonment terms, fines and caning for offences which currently provide for a maximum of two out of the three penalties to be meted out. These amendments will increase flexibility in sentencing and it is anticipated that such flexibility will make it easier for sentencing judges to tailor sentencing to the facts of each case.

 

We are, however, concerned about several other proposed amendments, some of which are briefly set out below:

 

 

5.1   Justification for each and every increase in sentencing maxima of existing offences
 Paragraph 29 of the Consultation Paper states very briefly the general reasons for the proposed increased imprisonment terms for existing offences but no justification or explanation is provided for each and every increase in sentencing maxima. In the absence of full explanation and justification for the increases, Council is unable to concur that the present sentencing maxima are inadequate.
     
5.2   Maximum punishment of 2 years’ imprisonment under s. 304A(b) for negligent causing of death
 Generally, imprisonment is not a suitable punishment for negligence and the maximum punishment of 2 years’ imprisonment under s. 304A(b) for negligent causing of death appears excessive. We recommend that no imprisonment be prescribed for the negligent causing of death.
     
5.3   Enhancing punishment to 20 years’ imprisonment under s. 304(a) for culpable homicide not amounting to murder
Council welcomes the proposed amendment as it will give the court a greater discretion in the sentencing of offences of culpable homicide not amounting to murder, namely, a sentence of between 10 and 20 years imprisonment would now be permitted.
     
5.4   Enhancing punishment to 20 years’ imprisonment under s. 304(a) for culpable homicide not amounting to murder
 Council welcomes the proposed amendment as it will give the court a greater discretion in the sentencing of offences of culpable homicide not amounting to murder, namely, a sentence of between 10 and 20 years imprisonment would now be permitted.
     
5.5   Repeal of mandatory minimum penalty of imprisonment of 1 year for theft of motor vehicles or parts thereof under s. 379A
 We are of the view that the repeal of the mandatory minimum penalty of imprisonment of 1 year for theft of motor vehicles or parts thereof under s. 379A is a move in the right direction.

 

 

6. Council suggests a concerted and comprehensive study of all mandatory minimum sentences in our criminal law, as such penalties deprive the court of the discretion to tailor a sentence to fit the offender and the offence.

 

In particular, Council would urge MHA to reconsider the mandatory imposition of the death penalty for the offence of murder under s. 302 of the Penal Code. Council has appointed a Review Committee on Capital Punishment which is in the process of reviewing the issue of capital punishment as a sentencing policy. Pending their forthcoming report, the following factors are highlighted:

 

6.1   The Argument for Discretion in imposing the Death Penalty

The death penalty should be discretionary for the offences where the death sentence is mandatory - murder, drug trafficking, firearms offences and sedition - a position similar to that for the offence of kidnapping. There are strong arguments for changing the mandatory nature of capital punishment in Singapore. Judges should be given the discretion to impose the death penalty only where deemed appropriate.

Giving discretion to the judge will facilitate flexibility in sentencing. Such mitigating factors need not necessarily be statutorily listed but could be allowed to develop on a case by case basis. In this manner, the judge will be allowed to take into account the circumstances of the offence and impose an alternative sentence, for instance, life imprisonment, even if the elements of the charge are satisfied.

Changing the mandatory nature of the death penalty to a discretionary one will not reduce the perceived deterrent effect of the death penalty. The discretionary death penalty was introduced for kidnapping in 1961. Since then kidnapping has been rare. We note that the proposed s. 364A in the draft Bill, which is an offence of kidnapping to compel the Government, provides for a discretionary death penalty as well. Furthermore, this flexibility in sentencing humanizes the law and reflects the evolving standards of decency in Singapore society.

No matter how serious the offence is, the sentence should fit the offender's circumstances and take into account any particular circumstances surrounding the offence. The offender should have the opportunity to persuade the court that he deserves less than the penalty of death.
     
6.2   The Effect of s. 34 for Common Intention and s. 149 for Common Object

Section 34 is an enabling provision which facilitates the imposition of joint responsibility on all participants in a criminal endeavour for any criminal act done in furtherance of their common intention by any one of them. s. 149 has a similar function. This is the basis for imposing the death penalty on all the accomplices in capital offences.

The Court of Appeal has recently affirmed a line of cases rejecting any limitation that: (a) the murder has to be commonly intended; or (b) that it is relevant that the killing was or was not foreseeable or whether there was or not an express agreement not to kill. So long as the participants have the mens rea for the offence commonly intended, they need not possess the mens rea for the offence for which they are actually charged.

The purpose of s. 34 and s. 149 is to deter group crimes. The rather harsh punishment serves to deter others from participating in group crimes. Due to the constructive nature of common intention, the accused's subjective intent is not an issue. The requisite intention will be 'constructed' or attributed to the accused.

Following from the above, the meting out of the same penalty to the person who deliberately inflicted death and the person who did not even contemplate that death might be caused by a member of the group infringes the principle of proportionality. That person might have simply stood or waited elsewhere (as lookout, for example), yet he would face the same sentence as the perpetrators.

In the absence of a common intention to murder, the courts should be allowed to punish the accused in accordance with their respective culpability. This is especially so in group assault cases where a fatal injury was inflicted and death has occurred. However, 'common intention' will mean that all participants will be jointly charged for that offence.

As a result of judicial construction of s. 34 and s. 149, the range of offences that one is liable to be charged under s. 300, which attracts the mandatory capital punishment, has been greatly increased. Although s. 34 may be deemed necessary to deter group crimes, a better approach might be to increase the sentence for assault and robbery respectively.

That said, the provision of common intention is not unique to Singapore and has been interpreted and applied in several cases in India and other Penal Code jurisdictions in relation to murder. However, most other Penal Code jurisdictions have either abolished the death penalty or made capital punishment a discretionary sentence.

In the absence of re-interpretation of the doctrine of common intention and murder under s. 300(c), the mandatory nature of the death penalty should be revisited. The judge should be given the discretion to take into account mitigating factors and the varying blameworthiness of each of the participants.

 

 

7. Consultation Process

 

We are grateful that MHA has consulted both the public and the Society in particular on the proposed amendments to a key criminal law statute in Singapore. As a general comment on the legislative consultation process, we note that MHA had taken into account the experiences of the police and the Attorney-General’s Chambers in applying the Penal Code, court decisions and public feedback given over time.

 

We are of the view that the consultation process can be further improved by, for example, forming a representative commission comprising academics, criminal law practitioners and interest groups to review the reform of the Penal Code.

 

Naturally, we recognise that there may be constraints on the manner and timing of consultation. Nonetheless, we hope that our report will prove useful to MHA and represent a positive contribution to public consideration of and interest in this important area of law.

 

* The full Council's Report is available to members on the Members' Homepage of the Society's website www.lawsociety.org.sg, 'Resource Library' ('Society Matters' - 'Committee Reports')