1. Mr Speaker, on behalf of the Minister for Home Affairs, I beg to move, “That the Bill be now read a second time.”
INTRODUCTION
2. We inherited the Penal Code from the British. It is nearly 150 years old. It is an important part of the Singapore’s criminal law.
3. The last time the Penal Code was reviewed end-to-end was in 2007. Our world and society have changed. The nature and complexity of crime have also changed. And, it is timely that we update the Penal Code to ensure continued relevance and effectiveness.
Penal Code Review Committee (“PCRC”)
4. The Penal Code Review Committee or PCRC comprised lawyers, academics, judges, and ministry officials.
5. The committee took two years to complete this extensive review. It submitted a report of nearly 500 pages, 169 recommendations on 31 Aug 2018.
6. We considered the proposals by the PCRC and sought feedback from a wide range of stakeholders and also the general public.
7. More than 700 stakeholders, social, religious, financial, legal and education sectors, were engaged in dialogue sessions. We received written feedback from various individuals and organisations.
8. We have also made the Bill available to Members of this House and to the public for the last three months.
9. We are heartened by the general support for the proposals.
10. My speech today will cover four areas:
i. Updating current sexual offences;
ii. Updating the Penal Code’s definitions and removing outmoded offences;
iii. Dealing with emerging crime trends; and
iv. Updating the sentencing framework.
11. Minister Shanmugam will cover the Government’s views on two key areas:
i. Enhancement of protection for vulnerable victims; and
ii. Reviewing sexual offences, specifically:
a. Offences against minors and
b. New sexual offences.
REVIEW OF SEXUAL OFFENCES
Amendments to current sexual offences
12. On updating current sexual offences.
Updating rape offence to include oral and anal penetration
13. First, let me talk about the offence of rape.
14. The Bill will expand the definition of rape to include penile penetration of the anus and mouth.
15. Currently, the offence of rape covers only penile penetration of the vagina.
16. We take the view that the label of “rape” is appropriate for non-consensual acts involving penile penetration of the anus and mouth. This reflects the high degree of violation, and the physical and health risks involved.
17. With this Bill, both men and women can be victims of rape.
18. Clause 110 gives effect to this.
Clarify types of misconception that may vitiate consent for sexual offences
19. Second, the Bill further clarifies the law on “consent” in the context of sexual offences.
20. Clause 121 sets out three misconceptions of fact that would vitiate consent.
i. Sexual nature of the act
ii. Sexual purpose of the act
iii. Identity of the perpetrator doing the act.
21. We decided not to have a positive statutory definition of consent. Section 90 of the Penal Code currently sets out the situations where consent is negated.
22. There is a good body of case law on this matter.
UPDATING THE PENAL CODE
23. Turning to the second key area in the Penal Code review, the updating of the Code to reflect shifting societal values.
Repeal of marital immunity for rape
24. The Bill will criminalise marital rape without exception.
25. Currently, marital immunity for rape is only removed in certain circumstances where there has been a breakdown in the marriage.
26. Sexual relations in a marriage, and indeed in any relationship should be based on mutual consent.
27. Sexual assault is violence, and violence in any context is wrong. This is the basis on which we have repealed marital immunity.
28. Clauses 110 and 112 of the Bill deal with this.
29. There have been concerns raised that the complete repeal of marital immunity for rape could lead to an abuse of the legal process due to an increase in unmeritorious allegations of rape by vindictive spouses.
30. I want to assure the House that all allegations of rape will be held to the same high standard of evidential rigor.
31. There is a separate proposal which goes some way to deal with this concern.
32. We have doubled the maximum punishment for section 182 of the Penal Code. Situations where persons give false information to a public servant, from 1 to 2 years’ imprisonment.
33. Persons who knowingly make false reports will be dealt with firmly by the law.
34. Clause 54 gives effect to this.
Decriminalisation of attempted suicide
35. The Bill will decriminalise attempted suicide.
36. This proposal received wide public support, including from organisations which work directly with persons who attempt suicides, such as Samaritans of Singapore.
37. The criminal justice system is not the best way to deal with persons who are so distressed that they choose to end their own lives. In fact, the threat of prosecution, and the labelling of persons who attempt suicide as “offenders”, may worsen their emotional state, and the stigma they face.
38. This view was shared by the PCRC and many others during the public consultation process.
39. There were some concerns that the decriminalisation of attempted suicide would reduce the deterrent effect, and cause an increased number of suicides. However, bear in mind that persons who attempt suicide typically are so distressed, that the deterrent effect of criminalisation is very low. The present situation is that hardly anyone is prosecuted and punished for this offence in the first place.
40. There were also concerns that the decriminalisation of attempted suicide will send a signal that the Government has shifted its position on the sanctity of life.
41. I assure you that this is not the case. Every effort will still be made to prevent suicides. The Bill amends other laws to ensure that the Police will still be able to intervene in suicide situations. Members of the public will still be able to call for emergency assistance in cases where a person is attempting suicide. The offence of abetment of attempted suicide will be retained. This will include physician-assisted suicides. Under this Bill, the maximum imprisonment term for abetment of attempted suicide will be enhanced significantly from 1 year to 10 years. Where the abetment of attempted suicide is of a minor or person who lacks mental capacity, higher maximum punishments will apply – 15 years’ imprisonment. If hurt is caused to the minor or the person who lacks mental capacity in the course of the abetment, the maximum punishment is imprisonment for life or imprisonment for a term which may extend to 20 years.
42. Clauses 84, 85, 89, 180 and 183 give effect to this.
Codification of definitions of fault elements
43. The Bill codifies the definitions of fault elements such as intention, knowledge, and dishonesty.
44. These definitions crystallise and clarify the existing case law.
45. We wanted to make the law clearer, since most of these definitions apply to offences outside the Penal Code as well.
46. Clauses 7 and 8 deal with these.
Clarification of the defence of mistake of fact and mistake of law
47. The Bill clarifies defence.
48. First, the law on mistake. The amendments in Clauses 21 and 22 will not change the existing law. There are two types of mistake – mistake of fact, and mistake of law.
49. First, it will continue to be the case that ignorance of law and mistake of law will not be a defence.
50. Second, to be clear, we have clarified expressly, in Clauses 110 and 111, the current position at law on the defence of mistake as to consent for the offences of rape and sexual assault by penetration. Where the accused person proves that he made a mistake in good faith, such that he believed that the act of penetration was done with consent, he will not be liable for the offence of rape or sexual assault by penetration.
51. In other words, the amendments in Clauses 110 and 111 will make clear the burden of proof remains on the accused person to prove on the balance of probabilities that he was mistaken in good faith that there was consent.
52. The amendments will not affect other presumptions which exist in law today, such as those in the Misuse of Drugs Act.
Clarification of defence of intoxication (case of Juma’at)
53. We will address an anomaly in the defence of intoxication in section 86.
54. This was pointed out by the High Court in Juma’at bin Samad v. PP.
55. With the amendment, intoxication must be taken into account in determining the accused person’s “knowledge” or “belief”, in addition to “intention”.
56. I wish to make clear that all other aspects of the law on intoxication in Juma’at are preserved.
57. The Explanatory Statement is not clear in this regard, and this speech clarifies the intent.
58. This includes the requirement for the accused person to prove on the balance of probabilities that he was so intoxicated that he did not form the requisite fault element for the offence.
59. Clause 29 gives effect to this.
Review of minimum age of criminal responsibility
60. We will increase the minimum age of criminal responsibility, known as the MACR, from seven to 10 years old.
61. Children who are below the MACR, and those above the MACR but below 12 years old, who are unable to understand the nature and consequences of their conduct, cannot be held criminally responsible for any act or omission which would otherwise be an offence.
62. The current MACR is seven years old and this is a colonial inheritance, since 1872.
63. We need to strike a balance between protection of the public and fairness to young children who may not be able to understand the consequences of their action.
64. There is no international consensus on the appropriate MACR. The MACR of seven years old is on the lower end of the spectrum.
65. We studied this very carefully. In Singapore, criminal activity among children below the age of ten is very low. We see increased criminal activity from the age of 10 onwards, and most juveniles commit property offences.
66. On balance, we think an MACR of 10 years old would be more appropriate in our context.
67. Children below 10 years old, and those between 10 and 12 years old who are not mature enough to understand the nature and consequences of their conduct, will not be convicted.
68. But this does not mean that we do nothing. We are looking to develop a framework to allow us to intervene in cases of such young children. The raising of the MACR will take effect when the framework for rehabilitation of these young children has been finalised.
69. Clauses 25 and 26 give effect to this.
DEALING WITH EMERGING CRIME TRENDS
70. I will now move on to the third key area on how the Penal Code will be amended to deal with emerging crime trends, especially in the area of white-collar offences.
Clarification of territorial jurisdiction for offences
71. Offences can be committed across national borders, with the constituent elements of offences committed in different countries.
72. Indeed, many white-collar offences have multiple physical elements which can take place in different countries.
73. It is currently not clear whether Singapore courts will have jurisdiction when some elements take place in Singapore, and others outside of Singapore.
74. A new Schedule will be inserted into the Penal Code.
75. Singapore courts will have jurisdiction over offences in this Schedule, where any relevant act of the offence occurs in Singapore.
76. Clauses 2 and 168 give effect to this.
New offence of fraud
77. The Bill introduces the new offence of fraud.
78. To understand the need for fraud offences, we need to look at the current offence of Cheating. The offence relies on there being a victim that relied on the deception by the offender. The deception had to induce the victim to do something.
79. Take for instance the LIBOR-fixing scandal in the UK. It would be very difficult to show that the victims relied upon the fraudulent representations of the bank employees who manipulated LIBOR. Calculations for LIBOR are complicated, and may not be understood by these victims. Yet, the LIBOR-fixing scandal is egregious, with far-reaching consequences on financial markets and products. We must be able to take action against such dishonest behavior.
80. The new offence of Fraud is intended to deal with novel and complex schemes which the current offence of cheating may not cover.
81. It focuses on the deceitful intent of the offender, and not the effect on the alleged victim. Trivial lies will not be caught.
82. The cheating offence will continue to be used where the elements of the offence are satisfied.
83. Two variants of fraud will be introduced. The first, fraud directly in connection with written or oral contracts for goods and services. The second, other types of fraud.
84. The second category of other types of fraud will come into force first, with the rest of the Penal Code amendments.
85. For fraud in connection with contracts for goods and services, we are working on the development of a mechanism, which allows private persons to obtain recourse for more common cases involving smaller losses. This mechanism may involve private prosecutions, civil claims or some other avenues.
86. The new fraud offence has been adapted from the UK’s Fraud Act. Clauses 138 and 139 give effect to this.
87. The experience of the UK in the implementation of the fraud offence has been positive. It has enabled the UK government to respond to technologically enabled and complex forms of fraud.
88. One point on online scams. While these would fall within the definition of fraud, most of these offences are committed by perpetrators overseas. For such cases, prevention is better than cure. While Police will continue to clamp down on scam activities, and work actively with our foreign counterparts, it is a fact that it is challenging to bring these foreign perpetrators to task.
UPDATING THE SENTENCING FRAMEWORK
Presumptive Minimum Sentences
89. Finally, I will touch on the fourth area which is updating the sentencing framework.
90. We have made some amendments to the sentencing framework, to ensure that the sentences prescribed are proportionate to the seriousness of the offence.
91. Members of this House will be familiar with mandatory minimum sentences, or MMS.
92. MMS refers to a sentence where the law mandates that a judge must impose a minimum jail term or another sentence such as caning for a particular offence.
93. MMS has served us well. It enhances deterrence for serious offences by imposing certain, predictable sentences on offenders.
94. But we recognise that society has become safer, less violent, and more mature. It is timely therefore to review all the offences which attract MMS today.
95. We have decided to retain the MMS for offences in the Penal Code, Misuse of Drugs Act, and illegal moneylending offences. MMS will also be retained for offences which attract a mandatory sentence of caning. These offences are serious, and generally involve elements of physical confrontation and violence.
96. Presumptive minimum sentences will be introduced for the remaining eight offences[1] set out in the Bill.
97. Only first-time offenders will qualify for presumptive minimum sentences. For these offenders, the court may sentence them to a punishment which is less than MMS in exceptional circumstances.
98. We have provided guidance in the law on exceptional circumstances.
99. Where the accused person is a first-time offender, pleaded guilty, and where he was of previous good character – the mere presence of all or any of these factors will not be sufficient to constitute exceptional circumstances.
100. The court will determine what exceptional circumstances are.
101. Currently, courts can already exercise judicial mercy in very rare cases where humanitarian considerations arise.
102. This gives us an idea of the degree of exceptionality that is required.
103. The introduction of presumptive minimum sentences is not a softening of the government’s stance against such crimes.
104. Because exceptional circumstances must be shown, we anticipate that the majority of offenders who commit these offences will still face the prescribed minimum sentence.
CONCLUSION
105. Almost all the provisions will come into force early next year in 2020.
106. In this major review of the Penal Code, we have clarified existing concepts and amended our laws to reflect prevailing norms, and better respond to our changing environment.
107. Minister Shanmugam will provide the Government’s views on the changes to two key areas: sexual offences and enhancing protection of the most vulnerable amongst us.
108. Mr Speaker, I beg to move.
[1] Selling Singapore passports under the Passports Act; Selected offences relating to unlawful entry or return to Singapore, assisting immigration offenders, and certain other offences under the Immigration Act; Unlawful use of trawl-net in Singapore waters under the Fisheries Act; Obtaining a work pass fraudulently under the Employment of foreign Manpower Act; Driving heavy motor vehicle without police escort under the Road Traffic Act.
