TOC would like to thank Ms Lim for providing us with the transcript.
Read also TOC's earlier report on the WP's Penal Code forum, "Are we moving towards a punitive society?"
Mr Speaker Sir,
The Ministry of Home Affairs first floated the Bill for public consultation a year ago. I am glad to see that in this version tabled before Parliament, some of the feedback has been taken into account.
Scope of Speech
Nevertheless, there are still many areas of concern. Today, I would like to address the following aspects of the Bill in principle:
(a) Increases in Punishment
(b) Laws on unlawful assembly
(c) Combination of imprisonment, fine and caning for the same offence
(d) Defences concerning security operations
(e) The law on extortion
(f) Why the bill should be sent to Select Committee.
Increases In Punishment
Generally I have no quarrel with the increase in fines, as it reflects the changed value of money due to inflation in the past decades. To pay a fine of $500 in the past hurts people more than to pay $500 in today’s dollars, so the increase in fines is understandable.
However, I have deep concerns about the increase in maximum jail terms. The loss of liberty 20 years ago does not cost less today.
As MHA has acknowledged, there have been increases in the maximum terms of imprisonment for 110 offences. Besides the broad sweep, the extent of the increases for each offence is significant – some offences have their maximum terms quadrupled, some tripled.
To take some examples: punishment for several offences have doubled e.g. the distribution of pornographic material from 6 months to 1 year, harbouring offenders from 10 years to 20 years, causing hurt from 1 year to 2 years. In some cases, the punishment has been tripled or worse e.g. assault on a Minister or MP, from 7 yrs to life imprisonment, and unlawful assembly from 6 months to 2 years, a quadrupling of maximum sentence. I shall say more about unlawful assembly later.
Another group of offences which seem to be attracting heavier punishments is offences committed by public servants and offences committed against public servants. Jail terms are up for S221 and 222 where a public servant facilitates escape of persons in custody. The same is true of offences committed against public servants e.g. under S 225, the punishments for someone who tries to obstruct an arrest are being doubled and can go up to 20 years jail.
The general justification given by the Ministry is that it has taken into account trends in society from 1984 to now, and that punishments have not been increased unnecessarily. But I do not think this general statement is sufficient to justify disturbing these penalties which seem to have worked for years.
First, punishments reflect how seriously society views a particular crime; hence we punish murder more seriously than theft. By quadrupling or tripling the maximum jail term, is the Ministry saying that from 1984 to now, these crimes have become 3 or 4 times more serious in their nature?
Increased punishments can sometimes be justified because certain offences are prevalent and we would like to deter people from committing these crimes. Are we facing soaring crime rates? We should also remember that our population numbers have gone up from 2 million to 4.7 million. Any statistics used to show crime increases must be adjusted for population, since we expect more crime when there are more people. Therefore, even if there is an increase in the number of offences, it does not mean we have a bigger crime problem on our hands.
The Minister may say that the maximum jail term does not mean that the judge must give the max sentence. That is true, but it will increase the exposure and generally sentences will go up once the maximum point is increased.
Once maximum sentences go up, accused persons, even the innocent, may face pressure to plead guilty. This is because under sentencing practice, a guilty plea usually attracts a discount in sentence as it is supposed to indicate some remorse. A person who claims trial and is found guilty after a trial would generally get a higher sentence than one who pleads guilty.
How does a higher maximum jail term affect this calculation? To illustrate, an unlawful assembly may have gathered and a passive bystander is also rounded up by police. Currently, this person will have to ask himself: if the judge does not believe me, then I will face maximum 6 months jail, so I am willing to take the risk and fight the case. With the amendment, this person will have to ask himself whether he is prepared to face a maximum of 2 years’ jail. If he is not, then he may consider pleading guilty even when he is not. Let us not forget that the vast majority of people hauled before our courts have no lawyers to speak for them and may have no confidence that they can successfully mount their defence.
So unless there is a compelling need to raise sentences, we should bear in mind this unacceptable side-effect of doing so.
Sir, I do find it somewhat regressive that in this day and age, when we have many more sentencing options at our disposal, including community-based sentences, we seem to still be relying on sending people to jail as a response. What about rehabilitation and reintegration? Already, according to the International Centre for Prison Studies, Singapore has the 2nd highest rate of imprisonment in Asia, with 350 inmates out of 100,000 persons, excluding population in our DRCs.
Sir, we must also be very careful that we maintain a sense of proportion in dealing with pegging punishment for offences. Parliament had over-reacted in the past, with over-harsh punishments under the Immigration Act, sending pastors and elderly landlords to mandatory minimum jail terms for unintentionally harbouring illegal immigrants. Then in 2004, the Act was amended to make it more reasonable. Similarly today, we should be wary of subjecting our people to excessive punishment before realizing years later that we were overzealous.
Law on unlawful assembly
This refers to clauses 29 and 30 of the Bill. By clause 29 of the Bill, we are removing the heading “Offences Against Public Tranquility” and replacing it with “Offences relating to Unlawful Assembly”. By Clause 30, we will be deleting “mischief or trespass or other offence” and replacing it with “to commit any offence”.
S 141 has been amended to bring it in line with a recent Court of Appeal case: PP v Tan Meng Khin  2 SLR 505. Now, an assembly will be unlawful if people intend to commit an offence punishable with imprisonment of 6 mths or more, even if it is peaceful and does not disturb public tranquility. Under our law, a person who organizes a procession or assembly after the police rejection of a permit can be punished with max 6 months jail under the Miscellaneous Offences Act. Hence 5 or more people who gather to do so will become members of an unlawful assembly.
The decision in Tan Meng Khin’s case overturned another Court of Appeal decision PP v Fo Son Hing one year before that. In the earlier case, the Court of Appeal considered the words of S 141 and determined that it was aimed at gatherings which threatened public tranquility or a breach of the peace, and hence peaceful gatherings would not be punished as unlawful assemblies. In the later case of Tan Meng Khin, the Court of Appeal changed its mind and read S 141 to cover gatherings to commit any offence even if there is no threat to public tranquility.
Connected with this, offences connected to unlawful assembly show drastic increases in maximum jail terms. Being a member of such an assembly will see stakes rise from a max of 6 months jail to 2 years jail, a 4X increase. Joining an unlawful assembly knowing it has been commanded to disperse, will go up from 2 years to 5 years.
Sir, we should bear in mind that there are already many laws in place which can punish people who attempt or collaborate with others to commit any offence. The prosecution has enough to choose from to charge groups of people who collaborate to commit crime e.g. abetment, conspiracy, attempt.
Article 14(1) of the Constitution supposedly enshrines the right of citizens to assemble peaceably and without arms. Although Art 14(2) allows Parliament to set limits to this freedom, it is stated that it should be for the security of Singapore and public order, and no more than that.
Sir, let us distinguish between gatherings which are violent such as rioting, and those which are peaceful.
The constant refrain of fearing law and order problems makes a mockery of licensing law – why have a law saying a permit is needed, when it is seldom granted? Minister for Law mentioned on Fri that Singapore needed controls as we were a densely populated country. But so is Hongkong.
As our society continues to evolve, the time is surely ripe for us to allow peaceful outdoor protests as a form of expression. By all means, we can have rules about how, where and when such processions may be held, but wider law reform is needed. S 141 should be restricted to offences which threaten the public peace, and other laws such as the Miscellaneous Offences Act which require permits for peaceful assemblies should be modified.
Combination of jail, caning and fine
The amendments will allow, for the first time, a combination of jail, fine and caning for certain offences. This has not been allowed up to now because the Criminal Procedure Code has a section disallowing the High Court from imposing all 3 punishments in one case. Up to now, the sections of the Penal Code also state that only 2 forms of punishment may be combined in any one case.
The Ministry is proposing to remove the restriction to 2 punishments, and says that this proposal to allow combination of all 3 punishments will give “flexibility” to the sentencing judge. But we should go back to first principles. What are the purposes of jail, fine and caning?
Caning is controversial internationally. But if one must justify why we cane offenders, it is a just desert for pain which the offender has caused to the victim e.g. hurt, injury or threat of violence. Caning is a severe punishment, and is always combined with jail as the offences tend to be serious, and to make it easier administratively to arrange for the caning to take place. On the other hand, a fine is usually meted out for less serious offences, or can be combined with jail, usually for non-violent offences.
The offences which Ministry has identified for all 3 forms of punishment include abduction, VCH with weapon, culpable homicide and outraging of modesty. But what kind of scenarios would justify combining caning with fine and jail? Would there be an overkill? Clarity is needed on this point.
Defences concerning security operations
Section 79 of the Code deals with a defence of justification. It provides that a person has a valid defence if he commits an offence thinking, rightly or wrongly, that he was justified to do the act. A typical scenario is where a police officer arrests someone, having information that he is a suspect, which information later turns out to be wrong. The police officer has a defence in that he acted in good faith at the time of arrest.
Clause 17 introduces 3 new illustrations to explain this defence in the context of counter-terrorism operations. While MHA has explained that these are not intended to expand the defence, illustration (c) seems to suggest the police are given large latitude to shoot to kill. In that scenario, information is received that someone is attempting to plant a bomb at an MRT station and a profile of the suspect is given. A person who fits the profile is spotted carrying a backpack and behaving suspiciously. When the police officer approaches and orders him to stop, the person runs towards a crowd. The police officer, exercising judgment in the circumstances, decides that the suspect has the bomb and shoots the suspect.
This scenario seems similar to a fatal shooting which occurred in London at Stockwell tube station in July 2005. There, the police mistook a Jamaican student for a suicide bomber and shot him at least 5 times in the head. According to some versions, he was seen running away. Despite intelligence, the police still found an incorrect match between the profile and the subject.
Transplanting that to the scenario here, the police can tell you that many people run from them, not just suspected terrorists. People who have committed minor offences, overstayers, foreign workers afraid of the law, or even the mentally unstable may do so. Reading the illustration, I would worry if this indicates a shoot to kill policy, especially since we do not know how specific the profile given to the police is. Will certain demographic stereotypes be more vulnerable to being mistakenly killed? MHA has said that in any court case, the judge will still need to decide if the shooting was justified. But this illustration is supposed to give our security forces “greater operational confidence” to take necessary actions, which read another way may be a signal that if one has not much information, when in doubt, one should shoot.
May I ask the Minister whether the intention is to entrench a shoot to kill policy, and what safeguards there are to prevent mistaken shootings?
The amendments to S 383 completely change the nature of the crime of extortion.
For many decades, extortion referred to someone threatening to do something illegal, and demanding money in order not to carry out the threat e.g. Pay me $10,000 or I’ll burn your house. Burning the house is illegal.
By clause 73 of the Bill, S 383 is to be amended to cover situations when the threatened action is legal. A new illustration (c) is a scenario where a police officer threatens to report someone who has actually committed an offence. The police officer in the scenario demands money not to report the matter.
Sir, the amendment clearly confuses extortion with corruption. There have in fact been court cases such as PP v Chua Boon Teck  3 SLR 551 where it was ruled that police officers demanding money so as not to exercise their lawful powers of arrest are not guilty of extortion but are guilty of corruption.
I do not know the rationale for merging the 2 concepts, which should be distinct.
S 377A Petition
The Workers’ Party leadership discussed at length whether S 377A should be retained or repealed.
After much deliberation, we are unable to arrive at a consensus that it should be repealed. Hence, we will not be calling for its abolition.
Nevertheless Sir, a Bill of this nature which introduces significant amendments to our main criminal legislation should be sent to Select Committee.
A Select Committee comprising MPs familiar with administration of criminal justice and/or social affairs should do a comprehensive review of the criminal law. They should scrutinise, clause by clause, each and every change to see if it is justifiable; and what else should be changed. MPs should receive expert opinions from legally trained persons on whether the drafting or wording of the provisions require fine-tuning. The Committee should also revisit the court decisions interpreting certain important provisions, in order to clarify the intent of those provisions and make the necessary amendments to state the law correctly.
Although there has been a round of public consultation before the 1st reading, the weakness of that process is that the feedback given by the public is not a matter of public record and will not accessible. Also, views submitted in such public consultations are filtered by civil servants. Parliament, as the law-making body, should allow MPs or a select group among them to have direct access to representations by people on a very important legislation such as this. There may be groups of the public who would like their concerns recorded in an official Parliamentary report of the Select Committee, e.g. those concerned about spousal violence or sexual orientation. Recording such input in an official document is a testament to the vibrancy of our public discourse and public participation.
The Penal Code is our main criminal law, an expression of society’s barometer of what is criminal and what is not, the relative seriousness of offences, and how citizens are to be punished.
I strongly urge the government to put this Bill to Select Committee.