Delivered at the WP Public Forum: Amendments To The Penal Code – Why We Should Be Concerned
Last Sunday we were out selling Hammer at Ang Mo Kio GRC and a middle-aged man advised me not to focus too much on issues relating to the law. He said that people may not appreciate the arguments.
WP decided to hold this forum precisely because we see a need to raise awareness of crime and law and order issues. The Penal Code is the main criminal legislation here, but how many Singaporeans have even heard of it?
The official view usually is a right wing one – protect the public, safety, increase imprisonment. But what about the presumption of innocence? The Constitution provides the right of an arrested person to consult a lawyer, but in practice the police decide when it is convenient to do so.
WP has always had great concerns over the CJS. I’m happy to have this chance to share some of my thoughts on the draft Penal Code amendment bill.
The amendments proposed generally increase punishments and create new offences. Some of new offences catch up with technology but I am also a bit bewildered by the preoccupation with sexual crime in all shapes and forms! I leave a fellow panelist to deal with the sexual crime.
The areas I will cover are:
- a) Increase in punishments for many offences
- b) Sentencing options
- c) Message for young people
- d) Some aspects missing from the Bill
Increasing punishments
Fines have gone up, by either 3 times or 5 times. The rationale for this is that the fines were mostly fixed in 1952 when the value of money was very different from today e.g. $500 in 1952 was a huge sum, compared to what $500 is today.
Generally, I have no quarrel with the increase in the fines.
What makes me worried is the increase in the imprisonment terms. According to the Ministry of Home Affairs, the government has “avoided increasing imprisonment terms unnecessarily”.
When you look at the details, we will find huge jumps in the maximum terms for many offences. To take some examples:
- (a) If someone assaults a Member of Parliament intending to scare him from doing his job as an MP, the current maximum term is 7 years. This will go up to 20 years – nearly 3 times 7 yrs.
- (b) If you are a member of an unlawful assembly, the current maximum jail term is 6 months. This will go up to 2 years, which is 4 times the current maximum. This is very significant as unlawful assemblies now clearly cover situations when there is no intention to breach of public peace.
Since the government says it has not increased imprisonment terms unnecessarily, we must ask the government why it is necessary to increase the maximum jail terms by 3 times or 4 times.
By doing this, the government must be saying that all this while, the offences have been treated too lightly. But we have lived peacefully with this law since the 1800s – has our society been rocked by many such cases? Are we over-reacting to particular incidents, out of proportion with the offence?
Is our society moving towards being a very punitive society, and is this good for an inclusive society? According to the 7th World Prison Population List compiled by King’s College International Centre for Prison Studies (www.prisonstudies.org), Singapore has one of the highest imprisonment rates in Asia (350 per 100,000 population), excluding DRC population.
Thomas Koshy mentioned to me that one danger of having much higher jail terms is that people who are charged may be pressured into pleading guilty. I agree with his assessment. You may want to fight the case in court, but as we know, people who claim trial get higher sentences than those who plead guilty. Faced with a high maximum jail term, some people will not be willing to take that risk. Is it good if people plead guilty all the time? It may save the government time and money, but the risk is that prosecution and police will become shoddier in their work.
As MHA is proposing some very drastic sentence increases, they must justify the significant increases to convince us that the imprisonment terms are not increased unnecessarily.
Sentencing options
One good thing about the changes is that some of the mandatory minimum sentences have been removed. E.g. if you steal a motor vehicle, the current law says you will get a minimum jail term of 1 year. With the changes, there is no minimum and it would be up to the judge to decide what is a suitable sentence. This is good.
One bad development, however, is that the changes will allow judges to combine all the 3 types of punishment of jail, fine and caning in one case. This will apply to several offences including outraging of modesty and causing hurt to a public servant.
This is a change from the current situation when the judge can choose to combine only 2 out of the 3. In fact, under the Criminal Procedure Code, it is stated that the High Court can pass any sentence except that “in no case shall the 3 punishments of imprisonment, fine and caning be inflicted on any person for the same offence.” The rationale behind this is to protect the offender from excessive punishment.
MHA has not described the situations when all 3 forms of punishment might be appropriate. The general understanding of sentencing principles is that jail and caning is generally suitable for crimes of violence, while non-violent offenders should get jail and fine. It is hard to think of what kind of offender should get the triple sentence, which is a big change from the current law.
Message To Young People
There are many provisions where the age of the victim matters. And of course there are good reasons for this as we want to protect our young people. My fellow panelist will touch on some of the provisions on sexual crime against young victims.
What I find is quite interesting is that our law generally seems to deal with young people in an inconsistent way.
For instance, the current Penal Code makes it an offence to sell / distribute obscene objects to anyone including young persons. If the young person is below 20 years old, the offence has higher punishment. Now, the government wants to move this from 20 to 21 years, to align it to R(A) ratings of films.
The cut-off age of 20 years has been there for a very long time. Is there a justification to raise it to 21?
This seems even more ridiculous when you look at things that people below 20 can do.
For instance, anyone above 18 can drink alcohol and smoke. A girl above 16 can freely consent to sexual intercourse, whereas she would not be able to watch R(A) films!
Boys are drafted into National Service at 18 years, can theoretically die for Singapore, and yet cannot watch certain films. Does this make sense?
Perhaps it is timely for us to consider using 18 years as a general cut-off point so that our young adults can exercise choices at their age.
It is useful to look at international benchmarks. By and large, the age of majority in most countries is 18, a recognition that children are maturing faster than before. Is there any reason to think that our young people are less mature than their peers elsewhere? I think it may be time for us to consider lowering the age of majority to 18 as well.
Aspects missing from the Bill
Some of the new offences include extra-territorial crimes i.e. crimes committed by Singaporeans and PRs while overseas. For instance, under the new laws, Singaporeans and PRS who patronize child prostitutes in other countries can be charged in Singapore as if they committed the offence in Singapore.
I think we can see the rationale and why Singaporeans might think twice if they knew that Singapore law could get them when they come back. Although it might be harder to investigate and get evidence in another country, the government has shown some resolve by writing this into our law and working towards prosecuting people.
Similarly then, I’m wondering why the government is not creating a similar offence for Singaporean Citizens, Permanent Residents and Companies who are creating haze pollution in Indonesia. The government seems to be aware that our fellow citizens running businesses in Indonesia may be employing slash and burn tactics – previous Environment Ministers had reminded Singaporeans not to do so. The haze has been with us for about 15 years and we all know the damage it has caused to the health and quality of life of the whole population. This is not to mention the losses to our businesses.
The haze is a regional issue which requires co-operation of several countries to solve. Nevertheless, these processes are obviously slow. I think this is an excellent opportunity to show our commitment to solving the problem by showing we will act against our own people.
On the whole, the amendments seem to be taken mainly from a prosecution point of view. As such, nothing has been mentioned about reviewing the section on Defences. Some of the defences need a closer look e.g. the defence of duress i.e. that a person was forced by a threat of death to commit a crime. This defence is too limited as it only covers a person who commited an offence while threatened with being killed, but not if he committed the offence because his daughter would be killed. Unfortunately, the govt has not looked at the defence angle at all.
Thank you.
