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After much anticipation, CJC-F held its first in-person Welcome Event on 19th September 2022. It was a very exciting time as both previous and new members alike were able to meet their club mates, get to know each other, and embark on this shared journey of exploring our interest in forensic science together.

 

CJC-F History, Goal and Project Hierarchy

The event began with a detailed explanation of the history and journey of CJC-F given by our student Director Alyssa Phua and Vice Director Ellione Chow.


It was truly spectacular to hear from them how CJC-F began as a single event under the umbrella of the Criminal Justice Club, and grew rapidly over the past 2 years to a well-established interest group with 39 published research articles and 4 highly publicized external events. Next, members discussed future goals of the club as well as contributions that members hope to make. The sharing provided all  members with an excellent understanding of the values, mission and goals of CJC-F.

 

Team Lead Sharing

After this, the team leads were invited to briefly introduce their teams as well as their plans in the upcoming academic year. It was an extremely engaging sharing session with all team leads doing their best to recruit members for their teams!


Ice-Breaker Bingo

Next up was a fun game of Ice-Breaker Bingo! Members were each given a bingo sheet and had to find people who had certain funny or silly experiences, items, or characteristics to sign off on the corresponding bingo boxes. These included having filmed a TikTok in public, being able to touch your tongue to your nose or having slept in Prof Stella’s class – which, for some reason, was a box that no one would sign! 😉


While the experience of 25 people frantically going around the room trying to obtain signatures was a chaotic one indeed, the ice-breaker was ultimately a resounding success, as members ended up getting to know one another better and on a deeper level.

Mass Game – Clue Finding

After the Ice-Breaker Bingo was a clue-finding mass game. A crime scenario was introduced (hypothetical, of course!). Then, members were divided into smaller teams and tasked with finding clue envelopes that were hidden on the 4th and 5th floors of the building in 20 minutes. Each of the envelopes contained either evidence, testimony, or action cards. Evidence and testimony cards could be used to reconstruct the crime, while action cards could be used to steal, exchange, or bomb other teams’ clues.


Once the rules were explained, an action-filled 20 minutes ensued, in which members put on their detective hats, ran around, and even accidentally got locked in a stairwell.


Once members gathered back in the room, they were given 10 minutes to discuss and come up with their interpretations of the crime as well as play any action cards obtained to gain more information. Every team was then given the chance to put forward their version of the crime.


The entire game was immensely entertaining and drew plenty of smiles and laughter. However, it also taught members the importance of evidence and the influence of available context on evidence. It was fascinating to watch the same pieces of evidence being interpreted differently based on the information available to the team.

 

Masterclass in Forensic Science and Legal Systems

Last up on the agenda was the long-awaited masterclasses in forensic science and the legal system. Zheng Yen Phua, who is currently a doctoral researcher working as a teaching assistant in the forensic science program at NUS, took the stage for the forensic science portion of the class. He led members through multiple topics that were integral to forensic science such as blood spatter analysis, DNA profiling through STRs (short tandem repeats), fingerprinting, and forensic medicine. The forensic science masterclass ended with the examination of the real-life Sterling Road Murder case and the demonstration of how forensic evidence was integral to the conviction of the killer.


Finally, the event was concluded with Alyssa presenting the final masterclass on a brief introduction to Singapore’s criminal legal system.


This sharing session was incredibly insightful for the non-law students in particular, who got a glimpse into the basics of the two legal traditions, the hierarchy of courts in Singapore’s legal system and the trial process. Alyssa also explained the difference in the standard of proof for the defense and prosecution in a criminal trial – a concept that the author found particularly thought-provoking – which is based on the premise of “innocent until proven guilty”.

 

Conclusion

In short, the entire event was a truly enjoyable and informative way to spend our Monday afternoon before the struggles of recess week!


Authors’ Biography

  • Avanti Balaji (Year 2 Psychology Major)

Avanti Balaji is a second-year NUS undergraduate current majoring in psychology. Given her deep interest in the roles and real-life applications of psychology, Avanti joined the CJC-F to gain more exposure and learn about the fields of law, forensics, and their relation to psychology. In pursuit of this interest, she also intends to minor in forensic science. She is currently part of the Forensic Science Conference planning committee as well as a member of the team focusing on forensic psychology.

  •  
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Olympian. World record holder. First male swimmer to earn Olympic and World Championship gold medals for every freestyle distance from 200 to 1500 metres and dubbed the “greatest freestyle swimmer of all time” by NBC Sports. These facts clearly point to an athlete of exemplary talent and tenacity; a true “shark” in the pool.

But who is he? He is none other than Sun Yang, the same Chinese athlete who was issued a reprimand in 2020 and sanctioned by the world swimming body, FINA, for (a) refusing to sign paperwork required in the doping control process and (b) refusing to submit samples of his blood as required by an Anti-Doping Organisation (ADO). But which anti-doping rules did Sun Yang violate? Isn’t doping about the consumption of prohibited substances to boost an athlete’s performance?

This article seeks to clarify:
  1. What anti-doping rules are;
  2. Who sets them;
  3. What constitutes doping in sports; and
  4. How urine and/or blood samples are collected by an ADO.

What are anti-doping rules and who set them?
The World Anti-Doping Agency (WADA) is a foundation initiated by the International Olympic Committee (IOC) in 1999 to promote, coordinate and monitor the fight against the use of drugs in sports. In line with the purpose of an anti-doping programme – which is “to protect the athlete’s fundamental right to participate in doping-free sport and thus promote health, fairness and equality for athletes worldwide” – the WADA created the World Anti-Doping Code (WADC), which is akin to a global rule-book for administering the anti-doping movement.

The WADC prescribes a set of punishments which applies to every athlete who flouts any of the 11 anti-doping rules or Anti-Doping Rule Violations (ADRVs), as they are known in the doping circles. Since WADA’s primary role is to develop, harmonise and coordinate anti-doping rules and policies across all sports and countries, this means that the same set of punishments apply to all atheletes worldwide. All recognised National Olympic Committees and International Federations under the IOC’s ambit are signatories to the WADC.
 
What constitutes doping?
ADRVs occur when an athlete or athlete support personnel (e.g. coach/trainer/team doctor) commits a doping offence when his/her urine or blood sample returns from the laboratory with an Adverse Analytical Finding. Should he/she be found guilty, there will be consequences or sanctions to that person.
 
There are 11 ADRVs in total.


It is important to note that the principle of strict liability applies to all anti-doping violations. This means that it is not necessary for the athlete to have intended to use the substance for him/her to be found guilty. Regardless of whether there was truly an intention to cheat or not, the athlete will be held responsible for any prohibited substance which is found in their body.

However, the degree of fault will be taken into account when determining the punishment the athlete will receive. An athlete may typically receive a period of ineligibility from competing as the punishment and the period of ineligibility could vary depending on the degree of fault. For instance, if the athlete is found to bear no fault or negligence, there could very well be no period of ineligibility for the athlete. If found to bear no significant fault or negligence, they could be rendered ineligible to compete for up to 2 years.
 
How are urine and/or blood samples collected by an ADO?
Every in-competition or out-of-competition testing begins with the provision of a urine and/or blood sample by the athlete. This is done under the strict supervision of a Doping Control Officer (DCO), who is of the same gender as the athlete.

During the process of testing, the athlete will urinate into the sample collection vessel right in front of the DCO so that the DCO has a clear view that the urine comes from the body of the athlete and not from any other source. The athlete will take the necessary steps to remove any clothing which may impede the line of sight of the DCO.

Similarly, for blood samples, the athlete typically rolls up his/her sleeves so that the instruments used will not be impeded. For this reason, DCOs work in pairs so that the other DCO (known as the Lead DCO or supervising officer) can act as witness to the entire process and record any anomalies in the process.

There is only 1 standard testing regime used to collect/analyse an athlete’s urine sample and the steps are as follows:
  1. Athlete selection – An athlete may be selected for testing at any time and place (e.g. whilst at home/ at the office/at his training venue or at the competition venue)
  2. Notification – A Doping Control Officer (DCO) will notify the athlete of his/her selection and reads them their rights and responsibilities. The DCO will then follow the athlete closely, to wherever he/she goes (warm down / medal ceremony / press conference / medical treatment etc).
  3. Reporting to Doping Control Room (DCR) – The athlete should report to the DCR as soon as he discharges his other responsibilities, as above.
  4. Sample collection equipment – The athlete will be given a minimum of 3 sealed sample collection vessels and kits to choose from. If he/she is unhappy with the chosen vessel or kit, he/she may request another to his/her satisfaction.
  5. Provision of sample – The athlete will then provide a urine sample under direct observation of a DCO of the same gender.
  6. Sample requirements – A minimum of 90ml of urine is required for urine samples. If the sample that is provided is not 90ml, the athlete may be asked to wait 1 hour before providing an additional sample. This additional sample will then be mixed with the earlier sample.
  7. The athlete will split the urine sample into Bottle A (minimum 60ml) and Bottle B (minimum 30ml).
  8. The athlete will then seal the bottles according to DCO’s instructions.
  9. The DCO will then measure the specific gravity of the sample to ensure that it is not too diluted to be analysed by the WADA accredited laboratory. The minimum is 1.005.
  10. The athlete will be asked to check and confirm that the information listed on the Doping Control Form is correct. This includes but not limited to his/her contact details, the medications / supplements / blood transfusion that he has had in the last 7 days.
  11. The urine samples will then be sent to WADA accredited laboratories for analysis.

If the athlete is found to have a prohibited substance in his sample, he/she will be invited to the testing laboratory where his/her sample from Bottle B will be opened in his/her presence and analysed. If the analysis from his/her Bottle B sample confirms the initial Adverse Analytical Finding (usually it does since it is from the same sample provided by the athlete on that particular day/time), the case will then be referred to the next stage, which is referred to as Results Management.

The athlete in question will then likely appear before a Disciplinary Hearing convened by the ADO and his/her National Sports Association (NSA). With possible assistance from his/her counsel, the athlete will now need to prove on a balance of probabilities that it is possible and plausible (i.e not a mere speculation) that there could have been an act of sabotage, manipulation, contamination, pollution or accidental use and that he/she did not knowingly commit the ADRV. The athlete has the option of choosing whether he/she would like to be legally represented.

Where possible, the athlete could list the possible source of the prohibited substance (e.g. adulterated meat) or even highlight any departure from the international standards that could possibly have contributed to the AAF.

Following which, the athlete may reach an agreement to conclude the case IF he proves his case successfully. There are 2 types of agreements – the results management agreement and the case resolution agreement:


If the athlete in question wishes to contest the charges, the case will proceed to the Court of Arbitration for Sports (CAS), as wase the case for Sun Yang.

What is CAS?  
CAS is an institution independent of any sports organisation which provides for services in order to facilitate the settlement of sports-related disputes through arbitration or mediation by means of procedural rules adapted to the specific needs of the sports world.

Created in 1984 and located in Lausanne, Switzerland, CAS has 300 arbitrators from 87 countries, chosen for their specialist knowledge in arbitration and sports law.

It should be noted that the award pronounced by CAS is final and binding on parties. It is enforced in accordance with the New York Convention which has more than 125 signatories.
 

What actually happened in Sun Yang’s case?
It started out like any other routine Out-Of-Competition Test (OOCT). Somewhere during the sample collection, Sun Yang noticed that one of the members of the Anti-Doping team was taking pictures of him. He immediately asked for the DCO’s Accreditation Card, to ascertain his identity but was rebuffed. This led Sun Yang to suspect that the testing personnel did not possess proper credentials and thus, his refusal to cooperate further. In anger, Sun Yang also smashed the vials containing samples of his blood which had been taken earlier.

As the test was authorised by the International Swimming body, FINA, a tribunal was convened to discuss the manner in which the sample collection had taken place. It concluded with the finding that “any blood sample collected without proper authorisation cannot be considered a sample and therefore, there was no anti-doping rule violated.”

However, WADA did not agree with FINA’s decision and appealed to CAS. A panel of three arbitrators then unanimously found Sun Yang guilty of refusing to cooperate with the DCO and of refusing to provide a sample. Following this, Sun Yang was issued an 8 year ban from swimming.

However, following accusations that Sun Yang’s testimony was lost in translation during the 2019 trial, CAS convened a new panel of arbitrators who then handed a 4 year 3 month ban to Sun Yang thereby ruling him out of the Tokyo 2020 Olympics and possibly ending his swimming career.

But… what happened to Joseph Schooling in August 2022?
On 30th August 2022, news broke that 2016 Olympic Gold medallist and national swimmer, Joseph Isaac Schooling confessed to smoking cannabis during an overseas training stint in preparation for the 31st South-East Asian Games.

Whilst there was a huge public uproar about Schooling’s smoking of cannabis in anti-drug Singapore, the question remains: did Joseph commit an ADRV?

The simple answer is no as there was no mention of any AAF from the SEA Games swimming competition. This means that Joseph was either not tested during the Games (the Games organisers have neither confirmed nor denied this) or he was tested and his test(s) came back negative.

Either way, this means that he was never caught with a prohibited substance (cannabis) in his urine during any in-competition testing conducted recently and thus, does not face any ban or sanction from competition. In fact, the news of his smoking of cannabis only broke because he made a confession to the Central Narcotics Bureau just before submitting to a random urine test under CNB’s watchful eyes. The test came back negative for all known prohibited drugs, including cannabis.                

Whilst this confession may be evidence of a breach of Article 2.2 of the WADA Code i.e. the “use” of a prohibited substance, it is only applicable if and only if there was evidence that the “use” occurred in-competition during the SEA Games.

One must bear in mind that cannabis is indeed a prohibited substance as per WADA’s prohibited list but only in-competition. This means that if Schooling had smoked cannabis a couple of days prior to any anti-doping test during the Games, his sample would have definitely been flagged as AAF as the single usage of cannabis can be detected up to 3 days after one’s last use. Therefore, it is this author’s firm belief that Schooling only smoked cannabis during the R & R period before his return to Singapore, after competing in the SEA Games.

His NSA, the Singapore Swimming Association and the Singapore National Olympic Council are expected to reprimand him for conduct unbecoming of an elite athlete and sports icon. But, to reiterate, it is highly unlikely that he will be facing a ban from competition since none of his urine samples from in-competition testing contained prohibited substances.

However, as Schooling is currently a conscript with the Singapore Armed Forces (“SAF”), he will be dealt with in accordance with Military Law. From recent news reports, we learn that Schooling will be subjected to 6 months of supervised urine tests and will no longer be allowed to take leave from his military duties to compete in overseas competitions.

Hence, whilst Schooling faces no immediate anti-doping bans from swimming competitions, it seems unlikely that Schooling will feature in 2023’s Asian Games in Hangzhou, China and the 32nd SEA Games in Phnom Penh, Cambodia since the SAF ban will prevent him from taking leave from military duties to compete in future overseas competitions thereby pushing the pause button on his swimming career.

Conclusion
The anti-doping movement exists to keep sports on a level playing field for all athletes. Hence, the strict enforcement and the constant and regular testing of athletes in and out of competition keeps elite sports competitive but fair. Nevertheless, athletes should always be aware of their rights and responsibilities as elite athletes and be guided by the strict liability rule that governs the anti-doping movement for a small mis-step can spell the end of their sporting careers.
 
Authors’ Biographies
Zaher Bin Wahab (“Zee”) is a Sophomore at the SUSS School of Law and also serves as a Doping Control Officer with Anti-Doping Singapore. He looks forward to practising Community Law (Criminal, Family and Sports Law) when called to the Bar. Concurrently, serves as President of the Asian Law Students Association S’pore (ALSA SG) and strives for greater interaction and collaboration between students from the 3 Law Schools in Singapore. This is his first published article.
 



Alyssa Phua is a fourth year NUS undergraduate pursuing her double degree in Law and Business. As a strong believer in the need to promote greater appreciation of forensic evidence, she founded CJC Forensics (CJC-F) in 2020. As the director of CJC-F, she directs, coordinates and oversees all activities, events and projects.
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Contingency Fee Arrangements are payment arrangements, whereby the legal fees payable to a lawyer by a client is determined by the outcome of the case’s proceedings. Under these arrangements, it is possible for a lawyer to arrange to be paid an agreed percentage of the client’s recovery and is paid nothing if the action is unsuccessful. The high cost of legal proceedings often results in many people being unable to bring their cases to court, simply because they cannot afford to do so. Article 7 of the UN Declaration of Human Rights states that “All are equal before the law and are entitled without any discrimination to equal protection of the law.” These arrangements offer a practical avenue for lower income individuals to stand on an equal platform as the state, of proper legal representation, and have the same access to justice when faced with a criminal charge. Unfortunately, this is illegal.

The history of contingency fee arrangements can be traced to the case of Re Trepca Mines (No 2) [1962] 3 WLR 955. Then, Lord Denning held that “The reason why the common law condemns champerty is because of the abuses to which it may give rise. The common law fears that the champertous maintainer might be tempted, for his own personal gain, to inflame the damages, to suppress evidence, or even to suborn witnesses. These fears may be exaggerated; but, be that so or not, the law for centuries has declared champerty to be unlawful, and we cannot do otherwise than enforce the law, and I may observe that it has received statutory support, in the case of solicitors, in section 65 of the Solicitors Act, 1957.”

The concern here is that lawyers, having arranged to have their legal fees determined by the , will be tempted to cross legal and ethical lines for their own profit. This stance was written into Singapore’s statute, in the Legal Professions Act, where Section 18 of the Legal Profession Rules states that

  1. A legal practitioner or law practice must not enter into any negotiations with a client of the legal practitioner or law practice —

(a) for an interest in the subject matter of litigation or of any other contentious proceedings; or

(b) except to the extent permitted by any applicable scale of costs, for remuneration proportionate to the amount which may be recovered by the client in the proceedings.

Under this statute, lawyers can be charged if they arrange for any sort of payment structure with a client that allows them a financial stake in the outcome of the proceedings. This has remained a consistent stance in the Singapore Courts, where just this February the Law Society filed an action against one of its members for entering a contingency fee arrangement with his client.

Faced with the illegality of contingency fee arrangements, accused persons facing criminal charges who cannot afford legal representation can only turn to the Criminal Legal Aid Scheme.

To qualify for legal aid under the Criminal Legal Aid Scheme in Singapore, one must first pass the Means Test, a test which determines if an individual is in sufficient financial need to deserve legal aid. In order to pass this test, one must have a disposable income of not more than $10,000 per annum and a disposable capital of not more than $10,000. In 2013, only 17% of the population met this criterion, leaving 1 in 6 Singaporeans and PRs outside the coverage of the Scheme. Under the initial scheme, Only 431 people were given help in 2014 and 427 in 2013.

There have been efforts by Singapore’s Parliament to address this, and with the passing of the Legal Aid and Advice Act in 2013, the financial threshold that needed to be met was lowered under the enhanced Legal Aid scheme. The latest statistics from the Ministry of Law show that 2,433 people were helped under the enhanced scheme last year – more than five times the people who received help in 2014. While this shows good progress, the new scheme only covers 25% of the country’s population.

Steps toward the legalisation of contingency fee arrangements have already been taken in other countries. With the passing of the Access to Justice Act 1999 in the UK, the courts from which we took the basis of the statute in the first place have already moved to allow for such arrangements, albeit not in the context of criminal proceedings.  It has also been already partially legalised in Singapore under the Civil Law (Amendment) Act 2016, where third party funders of case proceedings are allowed, provided the solicitor does not directly gain any financial benefit.

The main issue that concerns the legalisation of such fees is that of legal ethics, where lawyers might abuse the system, crossing moral lines for the sake of economic gain. However, is there not a line already drawn with the current system of billable hours, where lawyers are “rewarded” for slow, inefficient work. Making the ethical decision for professional conduct might extend in a similar manner to lawyers, should the contingency fee payment be legalised in Singapore. If Singapore’s Courts and Parliaments find a way to reconcile the ethical and legal considerations of this issue, Singapore could take a big step toward having complete access to justice for its citizens.

Written in 2018 by Darryl Lau

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A money mule is a person who receives and transfers money, often of criminal source1. They could be either stolen or fraudulently obtained. He or she will then be asked to deliver money to another person, either in cash or by electronic means. Most offenders are very much a victim of their own crime as National Crime Prevention Council (“NCPC”) noted in a press release that most of these offenders were conned into doing so. For instance, some individuals may have innocently trusted conmen they have befriended online while some may be in for a “quick cash”. After trust has been established, these scammers would proceed to transfer the money to these victims’ personal accounts before asking the victims to transfer the money to another account. This is often done by much larger syndicates to facilitate money-laundering. The same NCPC press release also reported that this is a growing trend with 93 such cases2 in 2012 and an increase to 133 cases in the first nine months of 2013 alone. Although there is no information concerning the number of individuals prosecuted, there is no dearth of cases either. This article seeks to clarify the relevant legislation and the potential offences a money mule is liable for, as well as the rationale behind the harsh sentencing guidelines.

We first take a look at a recent case of Public Prosecutor v Razali Bin Mohamed Idris3 (“Razali”). It aptly demonstrates how a common individual can be jailed for handling money for an online acquaintance. The accused, Razali Bin Mohamed Idris was a 56-year-old Singaporean. He befriended with “Rose” through the internet. Razali gave Rose his bank account number, and agreed to help Rose by receiving a sum of money into his bank account. On 11 September 2013, a sum of S$171,091.25 was transferred into his account. It is not disputed that this money had been obtained fraudulently. On the instructions of Rose, he made transfers of varying amounts to company and individual he did not know. It was added that he had never received such a large sum before. He was charged for one count of dishonestly receiving stolen property under s 411(1) of the Penal Code (“PC”) and four count removing from jurisdiction the benefits from criminal conduct, under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (“CDSA”). He was guilty of all charges. We now examine the legislation for each charges.

As per Razali, a money mule can be liable for dishonestly receiving stolen goods under section 411  of the Penal Code (“PC”). This provision can be divided into the physical and mental element. In the physical one, there is a requirement to “receive or retain stolen property”. The general inquiry is whether the accused was in possession of the stolen property. It is noted that the word “retain” ensures that the accused had a sufficient level of conviction to hold on to the stolen property. It is also easier in practice to prove retention than mere receipt4. Section 410 also defines “stolen property”. The property must have been a subject of one of the nominated offences such as theft, extortion and criminal breach of trust. It is also not necessary for it to be a physical property which is why money mules can be guilty of this section 411. Subsection (2) of section 411 denotes that the expression “stolen property” includes any property that has been exchanged for or converted into. This includes proceeds from sales of the stolen property5.

In most cases, the element of dispute for section 411 is the mental element. The prosecution must prove two requirements of the mental element — (i) dishonesty and (ii) knowing or having reason to believe that the property was stolen. In Razali, the issue before the court was whether the defendant had “reason to believe” if the property was indeed stolen. The district judge applied the legal test of “reason to believe” set out in Ow Yew Beng v PP6 (“Ow Yew Beng”). The test is an objective one: whether a reasonable person, in the position of the defendant (including his knowledge and experience), would have thought it probable that the property he retained was stolen property. The court ruled that the defendant in Razali had reason to believe to believe that the money he received was stolen on several basis. The court found “the the defendant was not naïve and gullible, but reasonably intelligent and street-smart” to discern if the property was stolen. It was also found that the circumstances under which the large amount of funds that had been transferred into the defendant’s account should be suspicious for the defendant, insomuch that there is a reason to believe that the money was stolen. Unlike the “reason to believe” limb, the knowledge limb under element (ii) is a subjective enquiry which could be harder to prove in practice.  Knowledge denotes awareness of certain facts with absolute conviction or certainty as to their existence. It can be said that a high degree of conviction is necessary to establish knowledge7

Where the penal code punishes money mule for receiving money, the CDSA is the primary legislation for targeting subsequent transfers of funds. In the CDSA, section 46 deals with benefits from drug dealing while section 47 deals with benefits stemming from criminal conduct. For example, under section 47(2) any person who:

  • knowing or having reasonable grounds to believe that:
  • any property (in whole or in part, directly or indirectly) represents, another person’s benefits from criminal conduct;
  • conceals or disguises that property; or
  • converts or transfers that property or removes it from Singapore.


This subsection specifically targets a person handling the benefit from a criminal conduct (rather than from a drug dealing) on behalf of another person (rather than his personal benefit). The first two element makes up the mental aspect of the offence while the last two elements constitute the physical element of money mule. As with section 411 of PC, the prosecution must prove that the defendant had knowledge or reason to believe that the property in question stems from another person’s criminal conduct. Although the definition of “reason to believe” cannot be found in CDSA, it is defined in the PC. A person is said to have “reason to believe” something, if he has sufficient cause to believe that thing, but not otherwise”. Indeed, the second part of element (a) of having “reason to believe” expands the scope of mere knowledge and provides for a more workable approach as it may be unrealistic to prove actual knowledge.

The second element requires the property in question to be a benefit from another person’s criminal activity. Further, this property can be in full or in part. It must be noted that this has been widely defined to capture a large array of possibilities. This can be confirmed by the bill passed in 2014, seven years after the original CDSA was passed. The said bill added section 47A to the statute8. It states as follows:—

47A.—(1)  For the purpose of proving under this Part whether the whole or any part of any property constitutes, or directly or indirectly represents, the benefits of drug dealing or the benefits from criminal conduct, it is not necessary for the prosecution to prove the particulars of any offence constituted by the drug dealing or criminal conduct.

 

(2)  For the purpose of proving under this Part whether a person knows or has reasonable grounds to believe that the whole or any part of any property constitutes, or directly or indirectly represents, the benefits of drug dealing or the benefits from criminal conduct —

(a)   it is sufficient for the prosecution to prove that the person knows or has reasonable grounds to believe that the whole or part of the property constitutes, or directly or indirectly represents, the benefits of an offence generally; and

(b)   it is not necessary for the prosecution to prove that the person knows or has reasonable grounds to believe that the whole or part of the property constitutes, or directly or indirectly represents, the benefits of a particular offence.

 

Under subsection (1), it is not necessary for the prosecution to prove the specific details or make out a specific offence from the criminal conduct. It is sufficient that the conduct has occurred. More interestingly, a similarly low threshold is set out in subsection (2). The prosecution only has to prove that the defendant knows or has reasonable grounds to believe that the property represents the benefit of an offence in general. The said offence need not be a particular offence of criminal nature or whatsoever. The requirement of proof is deliberately widen to allow offenders to be prosecuted more easily. This wide requirement is also observed in the physical element of the offence. No method of transfer is specified. In this regard, an offence for removing the the benefits of criminal conduct from the jurisdiction can easily be made out.

A person guilty of section 411 of the PC can be punished with imprisonment up till 5 years and be liable for a fine. The primary consideration for sentencing appear to be the total quantum for instance, a 10 months sentence was imposed for an amount of $97,177.869 while a higher quantum of $197,044.73 attracted a 17 months jail term10. The sentencing for section 46 and 47 of CDSA is also quantum dependent. Some of the suggested aggravating factors include the offence being pre-meditated; the offences were committed over a period of time and if a large amount was involved. Deterrence also appears to be a prime consideration when sentencing  as such offences can damage the country’s reputation as a financial hub[11]. Indeed with increasing ease of making transfer, there is a need to impose harsh sentence to deter similar offences from being committed. As technology evolves, legislation must also keep up and remain future-proof. One such development is the rise of cryptocurrency. These developments allow monies to be transferred and converted anonymously. It becomes more urgent than ever before to ensure that monetary transactions are regulated.

Written by Chee Kai Hao

 

[1] Public Prosecutor v Darryl Ignatius Tan Yung Sheng [2014] SGDC 81

[2] http://www.ncpc.org.sg/downloads/mediarelease/22-Nov-2013_Media_Release_on_Money_Mules.pdf

[3] [2017] SGDC 22

[4] YMC [15.6]

[5] Cheah Yew Fatt v PP [1960] MLJ xlvi

[6] [2003] 1 SLR(R) 536

[7] YMC [4.18]

[8] Act 21 of 2014

[9] PP v Rohinton Rustom Kakaria

[10] PP v Gee Lee Cheng [2013] SGDC 401

[11] supra 3 at [45]

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With reference to the Children and Young Person’s Act (CYPA), a juvenile is someone aged 7 or above and below 16 years old.

Over the years, the number of juveniles arrested have decreased, according to statistics provided by Ministry of Home Affairs, updated as of 4 April 2017.[1] However, a Straits Times article has also reported that the police have found a soar in juvenile arrests for shop theft and possession of offensive weapons. [2]

In fact, numerous cases of youth riots and their involvements in gang fights have surfaced as more teenagers turn to violence. In Oct 2014, 4 teenage boys aged 15-19 met up at a void deck at 3am to look for foreign workers to beat up and attacked a Chinese national by punching him several times before fleeing. These boys had also previously attacked an Indian foreign worker, two weeks prior to this. The 19 year old assailant pleaded guilty and was thus sentenced to 10 days in detention. In that same month, five youths aged 16 to 22 were arrested for rioting with a deadly weapon and attacking a 21-year-old man in Woodlands. In 2010, an infamous gang fight at Downtown East broke out between rival gangs that led to the slashing and subsequent death of a 19 year old Darren Ng.[3] More recently, 9 youths aged 14-16 were arrested for rioting in Woodlands on 27 April 2017.

Experts suggest that for youths, the tendency to partake in senseless violence and brutality could be due to an amalgamation of multiple triggering factors such as stress, angst, inebriation as well as their upbringing during the formative years. Violence at home would also expectedly perpetuate violent tendencies of a child in the future. “These youths seem to be people who have anger issues and choose to take it out on people who are less likely to retaliate,” suggests Dr Brian Yeo, a consultant psychiatrist at Mount Elizabeth Medical Centre, according to a report made by The New Paper. [4]

While adolescents committing minor offences may not be prosecuted but sent for rehabilitation instead, the government has taken a firmer stance against youth offenders that have committed serious crimes. “While rehabilitative options are available for young offenders who are suitable, the courts have also meted out more severe punishments if the offence was a serious one, including deterrent sentences to send a strong signal that such criminal behaviour will not be condoned nor taken lightly,” says Second Minister for Home Affairs Mr Masagos Zulkifli.[5] The high certainty of arrest and firm punitive measures are crucial in deterring youth crime, so prompt and effective enforcement by agencies in tandem with strict laws will be necessary. This is reflected in the punishments meted out for the death in the 2010 Downtown East gang fights, where the youth offenders were sentenced 3 to 12 years jail and 3 to 12 strokes of caning, depending on the severity of their involvement.

For minor offences, a second chance is offered through pre-court diversionary programmes such as the Guidance Programme introduced in 1997, which targets youth aged 10 to 19 that have committed minor crimes. This rehabilitative programme lasts for about 6 months and offers a community-based support network and successful completion of the 6 months means a police warning, which prevents youth offenders from having to face the stigma of court prosecution. In fact, Channel News Asia reports that approximately 9 in 10 youths stay crime-free 3 years after completing the programme, demonstrating the effectiveness of this policy.[6]

Aside from these pre-court diversionary programmes, the Children and Young Persons Act involves multiple clauses that protect youth offenders from that the blemishes that court prosecution has on their portfolio, which is vital in the reintegration back to community. CYPA s.35 restricts the publication of information relating to proceedings involving children and young persons to maintain a modicum of privacy and keep the identity of the youth secret.[7] CYPA s.41 stipulates that “words “conviction” and “sentence” shall cease to be used in relation to children and young persons dealt with by a Youth Court”. These clauses depict the sensitivity accorded to cases involving youth offenders and considerations for the child, to ensure that they are not tattooed with an almost-permanent stigmatisation associated to a court prosecution.

Written by Ng Cai Jia Felicia

[1] Ministry of Social and Family Development (https://www.msf.gov.sg/research-and-data/Research-and-Statistics/Pages/Juvenile-Delinquents-Juveniles-Arrested.aspx)

[2] (The Straits Times, 2017) 14.2% drop in youth arrests in 1st half of 2017, but more nabbed for shop theft and carrying weapons.

[3] (The Straits Times, 2013) Couple lost son in Downtown East gang fight in 2010, but now save his friends

[4] (Hariz Baharudin, The New Paper, 2016) More young people in Singapore turning to violence

[5] (The Straits Times, 2015) Parliament: Young offenders who commit serious crimes ‘should be severely punished’

[6] (Channel News Asia, 2016) A second chance for young offenders

[7] CYPA s.35—(1) Subject to subsection (2), no person shall —

  • (a)  publish or broadcast any information relating to any proceedings in any court or on appeal from any court that reveals the name, address or school or that includes any particulars that are calculated to lead to the identification of any child or young person concerned in the proceedings, either as being the person against or in respect of whom the proceedings are taken or as being a witness therein; or
  • (b)  publish or broadcast any picture as being or including a picture of any child or young person so concerned in any such proceedings.
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We can be certain of one thing (and perhaps only this one in an increasingly uncertain world): there will, from now, always be business in cyber security – in fool-proofing the cloud, in blockchain technology, in coding, and everything else therein.

Data theft is a problem of our time. Truthfully a misnomer, data theft indeed does not only refer to depriving owners of their data, but also refers to making unauthorized copies of private, copyrighted data. Data theft most commonly happens when employees mishandle or purposefully leak information, the latter as most famously committed by whistle-blower Edward Snowden.

This new nature of crime is an extreme threat to corporations all around the world. They debilitate business operations and/or may distract businesses from “real” cyber-attacks such as hacking. However, when we are forced to acknowledge the nature of the internet in a world where most are digitally literate, we realize that “any threat to a computer … can affect the national security, essential services, defence or foreign relations of Singapore”[1]. In 2017, the Singapore Ministry of Defence (MINDEF) was hacked, and “the personal data of 850 national servicemen and employees [were] stolen”[2]. This was an enormous surprise, seeing as the Ministry had “on a daily level, experience[d] hundreds of thousands of cyber intrusion attempts ranging from simple probes to sophisticated cyberespionage efforts”.[3] This successful hack underscores the growing skill of hackers, our failure to keep up with too quickly evolving criminal techniques, and most of all, our own growing vulnerability.

In September of the same year, AXA, one of the most forefront insurance firms, also experienced a far-reaching cyberattack. “[P]ersonal data belonging to about 5,400 of [their] customers, past and present … was compromised”[4]; among that data: email addresses, mobile numbers, insurance policy numbers and dates of birth[5].

Once a rarity, data thefts and breaches are now part of our everyday conversation. “The SPF noted an increase in the proportion of cybercrimes to overall crime cases from 7.9 per cent in 2014 to 13.7 per cent in 2016”.[6] Criminals are realizing that there is new tenure given to them by countries such as ours, who premise most of our development on cyber infrastructure. The growing of ourselves into a “Smart Nation” is truly a double-edged sword.

In an attempt to ward ourselves against even more crushing attacks, the Computer Misuse and Cybersecurity Act (CMCA) was founded in 2013. A progeny of the Computer Misuse Act (CMA) of 1993, the CMCA is:

“An Act to make provision for securing computer material against unauthorised access or modification, to require or authorise the taking of measures to ensure cybersecurity, and for matters related thereto.”[7]


The CMCA is the main backbone of Singapore’s defence against cybercrimes. Its predecessor, the CMA, was enacted to criminalise unauthorized access or modification of data and other computer crimes, and was amended twice between 1994 and 2012 to introduce new offences that helps us keep pace with newer criminal behaviour. In 2013, the CMA was amended to include cybersecurity measures and transnational offences, both lurking dangers for Singapore. This amended CMA was simultaneously renamed the CMCA. This article aims to dissect its usefulness and role in our future.

First, there are still numerous cases that are not caught by the CMCA. The purview of the CMCA only includes nascent, non-traditional cases such as unauthorized access to data or hacking from an overseas computer. “[T]raditional crimes performed online such as online cheating, and cyber extortion” exist in the purview of the Singapore Penal Code[8], the Defamation Act[9], or the Undesirable Publications Act[10]. It is curious that Parliament did not expand the CMCA beyond its current 27 pages to include traditional cybercrimes. This may especially pose a problem when cases involve a large accumulation of offences across different pieces of legislation.

Not only this, ambiguity is littered throughout the CMCA. With this article’s subject matter in mind, we shall first direct our attention to the lack of a definition for “theft” in the CMCA. Despite data theft being omnipresent when discussing cybercrime, it is not mentioned explicitly in the legislation. Only the description of data theft is described in S.2(b) in the CMCA as the:

cop[ying] or mov[ing] it (data) to any storage medium other than that in which it is held or to a different location in the storage medium in which it is held.


This definition’s narrow ambit is problematic. The CMCA’s definition of data theft only allows direct perpetrators to be punished, and does not advise on journalists, reporters, netizens, and other such parties using second-hand stolen data in the course of their work. For example, a news reporter who uses stolen private, encrypted data will not be held liable, even if they have clearly promulgated the principle of data theft. This does not mete out justice, nor serve to rectify the mischief the CMCA purportedly aims to rectify, which is that of “ensuring cybersecurity[11]. Had ‘theft’ been defined similarly to that in the Singapore Penal Code[12], We would think that journalists, reporters, netizens, etc. would be held liable for using information obtained by illegal means, regardless of whether they had committed that illegal act by their own resources. As the law currently stands, such parties cannot be charged – S.8A of the CMCA states clearly that the usage of stolen data is only an offence if the usage facilitates or leads to the commission of any offence under any written law. Unless stolen data used is for the purposes of blameworthy acts (for example, to achieve the ends of defamation or the breaching of the Internal Security Act), parties can use stolen data indiscriminately.

We find this ludicrous. First, this freedom should not be allowed to exist for second-hand data abusers, even if they are legitimate journalists or reporters. Secondly, this allows the public at large to leverage on breached cybersecurity for profitability sake. It is thus not only a question of ethics, but also a question of drafting. Ambiguities like this would render legislation such as the CMCA useless, or ineffective, to eradicate cybercrime. This was exactly the main concern of Mr Murai Pillai in Parliamentary Debates Singapore: Official Report, vol 94 (3 April 2017). Mr Desmond Lee then later tried to assuage Mr Pillai’s worries in the same Debates, stating:

There is nothing wrong with the journalist reporting on the hacking incident, or the researcher who works with the hacked personal information for research purposes. But it is doubtful if they would ever need to disclose the hacked personal information itself, as part of the report or research findings. For example, there is no need for them to publish details such as hacked credit card numbers, as part of the report on the hacking incident, or the research findings. Depending on the circumstances, indiscriminately making available hacked personal information may amount to an offence.


However, we are unconvinced. Legislation should be able to stand on its own legs, and not crumble under any ambiguity. The failure to codify what the “circumstances” that constitute an offence are, courts will be forced to enforce arbitrary, uncertain standards. This does not bode well for the future of the CMCA.

Next, the usage of “Minister” in 12A(2), 15A(1), and 15A(4) of the CMCA also gives rise to much uncertainty. The CMCA accords an individual Minister supreme authority to oversee investigative bodies, much more than the courts or any another government body, such as the Singapore Police Force. This is much unlike the United States, where the Attorney-General governs investigators such as the Federal Bureau of Investigation and Court Judges may review such powers as they wish[13]. There exists an airtight check-and-balance in the United States system of investigation into such crimes. However, there seems to be a lack of safeguards to ensure utmost fairness and certainty in protecting cyber privacy in Singapore. We argue that an advisory or supervisory committee should be set up to review the decisions of the Minister, given the “sensitive, private or corporate”[14] nature of information breached through data theft.

Next, the CMCA defines cybercrimes that cause “serious harm in Singapore” worthy of criminality in 11(4) as that which causes:

  1. illness, injury or death of individuals in Singapore;
  2. a disruption of, or a serious diminution of public confidence in, the provision of any essential service within the meaning of section 15A(12) in Singapore;
  3. a disruption of, or a serious diminution of public confidence in, the performance of any duty or function of, or the exercise of any power by, the Government, an Organ of State, a statutory board, or a part of the Government, an Organ of State or a statutory board; or
  4. damage to the national security, defence or foreign relations of Singapore.


This does not assuage worries for companies that are: not only as equally vulnerable as any other Singapore government service, but also equally important to either the cyber health of Singapore or public confidence in the barriers Singapore has erected for cyber attacks. This limits the effectiveness of the CMCA, and goes against Parliament intention to eradicate cybercrimes. We are of the view that the CMCA should expand its reach to protect corporations, especially large ones such as AXA, from debilitating data thefts. A criminal who hacks into a Singapore government service should be held to the same standards of liability as one who hacks for the sake of injuring vulnerable Singaporeans.

Last but not least, there is no mention of intent in the CMCA.  No allowances are made for uninformed offenders. On one hand, this will prove to be a difficult obstacle for potential defendants who operate under a bona fide mistake. On the other, this might be in line with parliamentary interest to effectively eradicate cybercrime in Singapore, regardless of whether it was done with malignance. It might also serve as a powerful incentive for employees and companies to educate themselves on these codified offences.

All in all, however, the CMCA is definitely a step in the right direction for Singapore, who will only become more reliant on cyber infrastructures in the next 50 years of our nationhood. Together with the Cyber Security Agency at the frontline, we believe that the CMCA will definitely deter cybercrime and bring us closer to the envisioned future of a country immune to crippling cyberattacks despite all its current flaws.

Written by Chow Ee Ning, class of 2021

[1] Assoc. Prof. Ho Peng Kee in Parliamentary Debates Singapore: Official Report, Vol 76 at Col 3321 (10 November 2003)

[2] Loke Kok Fai, Channel NewsAsia (28 February 2017). “MINDEF Internet system breached; data stolen from national servicemen, employees”, accessed: http://www.channelnewsasia.com/news/singapore/mindef-internet-system-breached-data-stolen-from-national-servic-7617146.

[3] Mr Ong Ye Kung (for the Minister of Defence) in Parliamentary Debates Singapore: Official Report, Vol 94 (3 April 2017)

[4] Claire Huang, The Business Times (7 September 2017). “AXA policyholders’ data breached after cyber attack”, accessed: http://www.businesstimes.com.sg/companies-markets/axa-policyholders-data-breached-after-cyber-attack.

[5] Ibid.

[6] Security Agency of Singapore (2017). “Singapore Cyber Landscape 2016”, accessed: https://www.csa.gov.sg/~/media/csa/documents/publications/singaporecyberlandscape.ashx?la=en.

[7] Computer Misuse and Cybersecurity Act (Cap. 50A, 2007 Rev. Ed. Sing.)

[8] Penal Code (Cap 224, 2008 Rev. Ed. Sing.) at sections 415

[9] Defamation Act (Cap.75, 2014 Rev. Ed. Sing.) at sections 5 and 6

[10] Undesirable Publications Act (Cap. 338, 1998 Rev. Ed. Sing.) at sections 11 and 12

[11] Computer Misuse and Cybersecurity Act (Cap. 50A, 2007 Rev. Ed. Sing.)

[13] United State Code. “The Attorney General’s Guidelines for Domestic FBI Operations”, accessed: https://www.justice.gov/archive/opa/docs/guidelines.pdf.

[14] Mr Ravindran in Parliamentary Debates Singapore: Official Report, Vol 76 at Col 3321 (10 November 2003)

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How did you first become interested in criminal practice?

I mostly became interested in the criminal practice during the course of my work. However, I did very much enjoy studying criminal law during my first year in law school, even more so than some of my other subjects. I suppose the other thing is that when I was growing up, I watched some TV shows featuring lawyers, such as Matlock, a fictional lawyer who defended clients. These shows totally coloured my view as to what law entailed: I entered law school without any real understanding that a lawyer did anything else besides litigation. It was only when I got in that I realised that there are people who do things such as conveyancing, IPOs, trademark registration and so on.

Of course, my aforementioned first job was in the AGC, simply because I was on a PSC scholarship. There was nothing else I could do short of breaking my scholarship bond. Not that I was interested in breaking it at the time: I saw it as a good opportunity to see what working as a lawyer in the government’s service would be like. I very much enjoyed the work that I did – I would say the camaraderie in AGC is second to none, and perhaps even more so when I was there simply because of how small my unit used to be. I don’t think there were more than 50 to 60 prosecutors in the Criminal Justice Division back then, from the junior ones all the way up to the head of the division (excluding the AG, of course). Today, as far as I know, the division has more or less doubled in size.

One can really get a real sense of purpose in working as a DPP. However, not all of the attitudes that I had there were absolutely spot on. Most of us were probably underexposed to what things were like on the other side, and by that, I really mean the accused person’s point of view. While we would take into consideration mitigating factors when we made our prosecutorial decisions on what type of charges to prefer, the severity of the charges to prefer, the type of sentence and the severity of the sentence to push forward in court, it was not always easy to put yourself in the shoes of an accused person. Perhaps I was, in retrospect, more sceptical about things than would’ve been ideal. I say that now only with hindsight, having done criminal defence work since I left the AGC, and having had a lot of interaction with various clients for criminal cases.

When you say you were sceptical as a DPP, you mean to say that you were sceptical of the “other side”?

Yes. I would be sceptical about the extent to which an accused person could be said to be a certain way, perhaps less malicious than I believed at that point in time. Now I have seen clients go to jail for many years: in one case, just because they had helped to guarantee a friend’s illegal loans from a loan shark, had gotten harassed when a friend didn’t pay up, and misappropriated money from their employer just to make good on that guarantee, for a loan that they did not even get one cent’s worth of benefit from. And now, they are in jail for a very long time. Of course, the jail sentence is a lot less than if they had misappropriated the money to buy luxury goods. Still, you can see that oftentimes the motivations of accused persons are not always as terrible as one might think.

Besides this shift in perspective that you just described, were there any technical challenges that you faced during the switch from a DPP to a defence lawyer?

Absolutely. As a prosecutor, you do not have to do any “running” wherever investigations are concerned, other than thinking and asking for it. You can ask the police to perform various tasks for you: this is all part of their role in the criminal justice system. If you, as a prosecutor looking at the files, feel as though certain witnesses need to be interviewed, or that some other documents need to be reviewed (telephone records etc.), the police will get it done for you. There is no such comfort for a criminal defence lawyer. Either you do it on your own, or you get your client to get it done (of course within the limits of your client’s ability). For example, if you want telephone records between A and B, whom you suspect have conspired to frame your client, you have no legal right to get that as a lawyer for the accused person. However, the police do have the statutory power to get any document that they want. You will never get the document that proves that although A and B profess not to know each other, telephone records show that they have been speaking to each other once a day for a week before they made a police report against your client. I think that is one major change.

I don’t think I have ever had to face a huge moral dilemma in that sense as it’s pretty straightforward for me. If the client is guilty, we do what we have to do to help the client get an appropriate sentence. In cases where I have claimed trial for the client, the instructions to me have been that from the start they deny what they did, and I had no reason to disbelieve them. I think you’ll learn when it comes to professional ethics later on for your bar exam that by and large you take your client’s instructions at face value, unless it is apparent on other evidence that your client is not telling the truth. I don’t think I’ve got a lot of other things to say about differences between working or one side or the other. The other aspects of the job are pretty much the same: you still cross examine the witnesses, and you still give closing submissions in a trial, no matter which side you’re on.

Perhaps, however, there is one more difference in relation to trial, where the prosecution has the police statements of clients and various witnesses, and you have no such statement of the prosecution or witnesses. Through the new criminal discovery process that came about with the last major revision of the CPC in 2010, you now have access to your client’s previous statements to the police. However, you don’t have the previous statements of witnesses, and while the prosecution will probably give you (or your client) hell during cross examination when they point out how every little aspect of their testimony in court is different from their testimony or their story in their police statements, you don’t have that privilege of doing the same to the prosecution’s witnesses because you don’t have their witness statements, even if their witness statements might be different from the evidence that they give in court.

The Court of Appeal has ruled that the prosecution has a duty outside of statute to give materials to the defence that would materially contradict or undermine their case. But it’s all a “good-faith” kind of duty. There’s no real way to enforce it because you don’t even know what they’ve got in the first place. If they’ve got the complainant’s statement saying that when she was sexually assaulted her left breast was squeezed, but in court she says it was her right breast that was squeezed (a very fundamental difference), you would not be able to exploit that. Whilst a very strong case could be made that that kind of material should be disclosed to the defence, so it could be used in the interest of justice to highlight to the court that the complainant’s version of defence is not entirely sound, you are in no real position to tell whether or not that kind of information has been suppressed by any individual prosecutor.

This is not a satisfactory state of affairs, and I have, during trials over the last few years, clashed with the prosecution on this, taking issue with the way the charge was framed, initially, to how it was amended later on. So, using this analogy, it would be you (the accused), did molest this complainant by touching her left breast on this day at this place and at this time. Halfway through the trial, because the complainant changes from left breast to right breast, the prosecution would ask the court for permission to amend the charge, and I might have in a situation like that said that this suggests that she did once say that it was her left breast, so I think we should have a look at her statements to the police. The prosecution declined to give those documents to me, and we had to argue it out in court until the judge finally ruled that she would look at it herself, without showing it to me, to determine whether or not there was an inconsistency such that the prosecution would be compelled to give it to me. Eventually, the judge looked at it and decided it wasn’t that material, so that was that: I left it as it was without having seen what the document contained.

So you’re saying: trials are often skewed too far in favour of the prosecution, and that this is not a satisfactory state of affairs?

I feel you’ve got to understand that they (the prosecution) have a heavier burden of proof anyway, where they have to prove a case beyond reasonable doubt, as opposed to on a balance of probabilities where the court only needs to say, in a civil case: on a balance of probabilities, I think A is just a little bit more credible to me than B, so I think A is telling the truth. This does not work in a criminal case. If the complainant is just a little bit more credible than the accused person, the right thing to do would be to acquit and say that the charge has not been proven beyond a reasonable doubt.

So, it does make sense that they have more things stacked in their favour, so to speak. But I think a little bit more could be done, especially with regard to this problem of disclosure of potentially damaging materials by the prosecution, which is one aspect I think we could do better in. If you speak to enough criminal practitioners, you will realise that they will all tell you that clients aren’t always telling the truth. Not that it only applies to criminal cases, it also applies to civil cases. The move toward video recording of police statements is currently in progress, and I think the plan to enact this change may have been announced some time back last year or even the year before. I think it’s not that easy to implement, and we all understand the government’s perspective on this. I have to qualify that I do know more than others because I am part of the Criminal Practice Committee of the Law Society’s delegation that interacts a lot with the Ministry of Law on all these matters. We understand their problems, and we’re here to help by giving our input on how things can be tweaked for the better.

That’s not to say this will eliminate all possible allegations of impropriety when it comes to statement recording. All it does is that it rules out what happens when a statement is being recorded. You can’t prevent a threat, inducement, or promise being made at night when the suspect has been brought back to the cell. At the end of the day, you have to ask yourself: do you want to end up in a situation where because the odds are stacked against the prosecution, you have so many instances of sexual assault not being proven, or do you want to give the police and prosecution a little bit more authority and power such that you have more convictions for the guilty? I don’t know if in your study of criminal law so far, you have gone into concepts such as the due process model and the crime control model. That is a simple way of stating the two extremes: one is entirely authoritarian where you make sure you suppress crime as much as possible, while the other is where you give suspects their full rights, and the system is entirely fair for them, but inevitably you get more convictions in the crime control model and more acquittals in the due process model. Every society has to decide for itself where it wants to sit. It’s clear in Singapore that we are closer to the crime control model. It drives legislation and the attitude of the prosecution. But in terms of process, most of the time I would say that accused persons are given every right, with some exceptions where for example they are deprived of access to a lawyer.

You will probably learn more about this in your second year when you learn more about constitutional law. But yes, there is really no right or wrong answer on this. I would say that I am reasonably satisfied with the present state of affairs, although there is definitely some room for improving the system. All the stakeholders are trying their best to work to improve the system.

Have you ever had a client placed on death row?

Yes, but not for long. The charges were dropped to non-capital charges. It was a murder case, and after I sent in representation, after a few months the charges were dropped to a lesser charge of culpable homicide. So from that point onward, the client was off death row, so to speak. He wasn’t out of the woods, by any means, and we went for trial after that, and we got an acquittal even on the culpable homicide charge, and a conviction on a lesser charge. I won’t say more about this now, because this case is still under appeal right now by both sides: the prosecution, who believes that he should still have gotten culpable homicide, and us, because we think that the client shouldn’t even be found guilty of that lesser charge.

The closest I have ever come to a death row situation has been as a prosecutor. There was one drug trafficking case I did where the accused person was facing a capital drug charge. That was my one and only brush with the death penalty, I would say. I have actually consciously tried not to take on such cases, remembering how I had felt, perhaps, when my colleague and I got a successful conviction, and the judge stood up to pronounce that he could only sentence him to the only sentence that he could pass under law, which is the death penalty. So I think it took me a good ten years out of AGC before I took on this case. But to be fair, when I decided to take on this case, based on what I knew of it, I didn’t think that a murder charge would stick anyway. I was confident then that we would soon be able to convince them to move away to something less severe. Unfortunately, it seems things didn’t move away far enough, and therefore we had a big fight about it. Going forward, we’ll have to see where things end up.

How do clients typically react when you break good news of an acquittal or bad news of a conviction to them?

Some of them are overjoyed are relieved (for the good news). For the bad news, we’ve already prepared them and given them proper advice on what the possible outcomes and worst-case scenarios will be. We paint what we think is the likely outcome and tell them what the reasonable worst-case scenario is and what is the reasonable best-case scenario, what are not likely but absolute worst case, and what are not likely absolute best-case scenarios.

One thing I learned though, is that it’s not good to be too successful in a particular case sometimes. I had a case where a young guy who was in full time National Service was driving his vehicle over the weekend and he had an accident with another car and someone died. The passenger in the other car, who was not wearing his seatbelt, passed away. I managed to get a fine for him, instead of a jail term, which these days, with recent judgements in the last few years, might not be the case because sentences have increased for such traffic negligence cases. But when it came to the disqualification period, I manged to convince the court to disqualify him for one year only, when you would think a three to four-year disqualification period would be more appropriate for him. It was better than I had hoped for, but at the same time I had a sinking feeling that this was not going to be the end of the matter. True enough, the prosecution appealed, and this time, the High Court judge hearing the appeal was a lot more circumspect and increased the disqualification period to five years. So it was really a huge waste of time and money. The judge should just have passed the more appropriate sentence the first time round instead of just, ironically, being too persuaded by me, such that he gave too lenient of a sentence, a sentence that I would describe as unreasonably good.

In the same vein, one of the approaches that I take toward sentencing of a client is not to ask for a bare minimum slap on the wrist. I know that if I succeed, it’s going to be appealed against anyway, because I know that almost every judge, unless the judge is for some reason taken in by what is said, more so than one would expect, would just give short shrift to you. This doesn’t just apply to the defence, it applies to the prosecution as well. When the prosecution asks for a sentence that is too harsh, way more than what is reasonable, the judge is not going to be inclined toward your proposition and is just going to be listening to the side that is more reasonable. You want to always be perceived as more reasonable in order to be persuasive. But there’s a range of what might be considered reasonable, the low end to the high end. I would tend to peg my sentencing submissions at the low end of what is reasonable because I feel that that is justifiable, and I feel like that works a lot more than asking for something that the client says they want. When they ask for something unrealistic, you need to tell the client: ‘No, you’re not going to get off that easily because the last ten people in your situation did not get that, and you are not in a special situation. So there’s no reason why you should be treated any differently under the law.’ That’s about it.

Do you think there is a shortage of students who aspire to enter the criminal practice these days?

I don’t know about that because I don’t have that much interaction with the students in the local universities, but I can say that almost every intern that I have had has expressed interest in criminal matters that they’ve been tasked to help out on, sometimes even more so than on commercial matters. I don’t know if that is an indication of there being a substantial amount of interest, it could also be that they were interested in that already, hence if they knew that they got an internship with me they would be getting some exposure to that, and that’s why they sought me out in the first place. I don’t think I could say that I am aware of any lack of interest in criminal practice among undergraduates.

Do you think the public tends to overromanticize criminal practice?

Yes, I think maybe the public is heavily influenced by what they read. After all, you need to understand that the job of a journalist is to capture the attention of the readers, so they also are not interested in reporting about the really dry aspects of a trial. They only deal with the sensational and exciting aspects. You read about these, but there is probably a huge 80 or 90 percent that is a lot more routine.

Also, they tend to go for sensational crimes, as opposed to boring ones. However, some of the hardest battles can be fought in very non-descript cases, where the public wouldn’t otherwise have interest in it, but a lot is really going on in court itself. It’s difficult to write too much about commercial cases, except maybe in The Business Times, where from time to time you talk about really big fights and commercial disputes. The mainstream newspapers tend to focus on criminal cases. They are easier to understand. Not everyone can appreciate a dispute over a bill of lading, or a breach of warranties under a shareholder agreement. Some people do not even understand the concept of a shareholder of a company. But everyone understands what it means to steal, to rape, to murder, take drugs, and so on. So it’s very easy for them to think that things are a lot more exciting than they are. There are also a lot more criminal cases in Singapore: we’re talking thousands of charges every year. You can’t possibly write about them all. You may be reporting on trials that are sensational, but there actually only about ten percent of them go to trial. As for the rest, the accused pleads guilty, because they actually are guilty, and they have admitted to it from the start. In these cases, perhaps the police did a good job in arresting the right people, and the prosecution made the right call in charging them based on the evidence that the police found.

You were a student at NUS Law and part of the graduating class of 2000. What was life as a law student like back in the day?

It was a lot easier. I can say that anyone who went for an internship during the school holidays was probably viewed as a pariah. Like, “siao-on” or whatever. The prevailing mentality was along the lines of: come on, it’s the holidays, just relax! However, today, if you don’t seek out an internship, you might be viewed as a slacker, someone who is probably not serious about a career in the law. I must say that I am shocked by how much things have changed.

I don’t remember being too laden with assignments. Sure, there was preparation for classes, but it wasn’t too difficult if you split up the work with a few friends. You prepare this class, I’ll prepare for that other class, and we’ll share the notes after that. Certainly there wasn’t that mental pressure that all of you have these days. Maybe if you’re in NUS you feel that you are in a better position than someone studying overseas. Truth be told, you probably are, as a lot of employers in the industry are still having a very good impression of NUS graduates.

Exams were mostly closed book back then. Maybe you might have been able to get by with a good memory as compared to today when you might need to be a bit more analytical, possibly, but I think you can learn to be analytical, especially during the course of your work. I have to say that my time in the AGC has taught me to be very analytical of scenarios and analysing whether on the facts this falls within the prohibited conduct of the law. Sometimes it’s straightforward, like shoplifting, but other times you may have to consider some other obscure act, like whether or not something violates the Customs Act, for instance. Well, the Customs Act isn’t that obscure, but I’m just saying that perhaps it is less common relative to the Penal Code.

What about your extra-curricular activities in law school?

I spent some time doing those, but it was all recreational. I did ACTUS!, which was the drama group of law school. I was also involved in Law Camp for four years. I was one of the super seniors who was always helping out. I enjoyed myself so much during Law Camp when I was a freshman that I wanted to be involved in Law Camp every year after that. So that took up a lot of my midyear vacation time. That’s pretty much it, I think. I wasn’t involved in ELSA. There certainly wasn’t any Criminal Justice Club back then. I think one of the big things was the elections for Law Club. I wasn’t involved, but some of my friends were. I think it is a heavy commitment, in the same vein that being on the council of Law Society today is a heavy commitment. I spent a year as an honorary council member of the Law Society a few years back. Normally, elections are for two-year terms, but someone got elected and left after a year because she was going to an in-house job. If you weren’t going to continue practicing, you would have to step down from the council. I was recommended to take the place of that departing council member by some people on the council who knew me. I was brought on, I did a year, and I would say it was a huge eye opener, although it demanded a lot of commitment.

For students who are aspiring to become criminal defence lawyers, what attributes do you think they should begin to develop?

I think with the type of clients that you will meet in criminal practice, it would be good for you to brush up on your second language skills. In fact, if there is one thing that I could advise any law student, it would be: brush up on your second language skills. I have to speak Mandarin now at a level that I did not think I was capable of. I consider myself to be a barely competent Mandarin speaker, but in the course of my practice I have had to deal more and more with clients who are either exclusive Mandarin speakers or who are much more comfortable in Mandarin. In any case, you have to do what you can to ensure the client feels comfortable. So I guess I have had to bone up on my oral Mandarin skills. I suppose there’s no hope for my written Mandarin, but luckily, I can just leave that part to a colleague who is way more competent than me. But at least in your interactions with the clients, you have to speak well.

You should also be inquisitive, and it would be good if you could show some empathy to your clients rather than just looking at their conduct through very privileged lenses. I know not every law student comes from a privileged background, but the majority do, and even those that are less privileged are in all likelihood more privileged than most clients for criminal cases. I have encountered a client who has had to steal milk powder for his infant son, and that’s not something that you even have to contemplate if you are going to university. I think those are useful skills to have.

Nothing beats doing it for building up ability, so it would be good. Even if you want to do defence work, you can consider doing a stint in AGC because the training there is really good: you are immersed in criminal work over there. A lot of criminal practitioners do not do 100% criminal work anyway, myself included. Sure, there are some that do, but these lawyers are by no means the norm.

Try to get yourself a good boss as well. I’ve found that a lot of generalisations about what this and that firm is like is, as I have said, just a generalisation. What is far more likely to have an effect on your growth and development as a lawyer and your experience in practice is the person or persons that you are working for. It’s not always comfortable to choose, but you should always try to move yourself into that situation.

You will probably find that so many things in life probably just happen because of fate. It sounds scary to say that things are beyond your control, but I could not have anticipated that when I agreed to my father’s suggestion to apply for a PSC scholarship, that I would be in the situation that I am today. Even when I went to the AGC, I didn’t even see myself leaving the AGC, especially after my second year there, when I found myself starting to like the work and all that. Of course, the circumstances I was in then with the structure of the legal service was such that JLCs were very heavily favoured for promotions. This made the situation unacceptable to me and made me want to try my luck in the far more egalitarian environment of private practice. That situation exists to a much lesser extent today. If you’re good, they don’t care too much about grades when you enter the legal service as they believe you’ll do well anyway. Just being put on a particular file allows you to learn so much. Being introduced to a particular person who turns out to be such an important mentor or client for you next time, so many things happen that are just not within your control. You just have to adapt and best make use of the circumstances that you are in, and I would say that your attitude is critical. You’ve got to be willing to put in the hours to be interested in learning more, doing more, because you know that only by doing so will you become better and better. When I came out to private practice at Rodyk the last time, stuff came, and I would volunteer for this and that. It meant more work for me, but I wanted to do it as I knew that doing so would make me a better lawyer overall.

So yes, I believe these are the key things I can think about that would be important attributes for a law student who wants to be a successful lawyer. This actually applies across the board for all areas of law, not just for a law student aspiring to enter criminal practice.

What about one’s advocacy skills?

I’m a prime example of someone whose advocacy skills could improve. I was never a shrinking violet, but I was also never in any debating club and had never represented any school in any competitions. In fact, I had a very terrible experience in my second trial as a DPP. I was told off very severely by the judge for repeatedly doing the wrong things. During my first trial, I had a senior colleague to sort of chaperone me and provide advice, but on my second trial, I was entirely on my own. The case was not an easy one to handle, and I was up against two very experienced defence lawyers on the other side.

It was no joke: I wanted to quit. I was telling myself that I was not cut out for it, I had made a mistake taking the scholarship, and I wanted to leave the AGC, go into private practice and do corporate work. But then I realised that it wasn’t just a matter of paying off the bond. I would also have to resign and serve one month’s notice, meaning that even if I tendered my resignation, I would have to go to trial the next day and receive the same grilling that I was getting from the judge for making mistake after mistake, all because I did not know how to question the witness properly, and my advocacy skills were not good enough. That was the situation that I was in. I just had to soldier on when I realised I couldn’t get out of it and tried my best to do my job till the end.

About a year later, I was doing another trial, where I found myself internally criticising the defence lawyer for the same mistakes that I had made one year earlier in my second trial. It then struck me: I had actually improved as an advocate. It was a surprise to be sure, but a welcome one. Of course, I feel that I am even better today than when I was one year into my job. There is always clear room for improvement as long as you work hard and correct your mistakes. The only question is whether you will actually have the opportunity to practice that.

But one thing you must know, especially in private practice, is that written advocacy is probably much more important than oral advocacy. You may not be fluent when you speak, but if you can write a good mitigation plea to the judge, the judge can read it, and if the points you make inside are of good substance, I would say that would be quite ideal, and that is far more important than whether or not you are verbally fluent in conveying those points in court. After all, they are in writing, and the judge has to refer to them in considering what the proper sentence should be.

Interviewed by Eugene Tai
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The Criminal Procedure Code (CPC) of Singapore is a part of Singapore’s legislation that details the procedure for the administration of criminal law in Singapore. Through a study of the CPC, one can better understand arrest procedures, as well as the rights possessed by arrested individuals.


Types of Offences

There are two types of offences in Singapore: arrestable and non-arrestable offences.

An arrestable offence is one in which the police can legally arrest the offender without a warrant. However, for non-arrestable offences, the police are required to be in possession of a warrant before they can make an arrest.

The First Schedule of the CPC contains a comprehensive list of offences, along with additional information stating whether or not the offence is an arrestable one.

Some examples of arrestable offences include:

  • Criminal Conspiracy
  • Offences against the state
  • Genocide
  • Piracy
  • Unlawful assembly
  • Impersonation of a public servant
  • Counterfeiting currency
  • Affray
  • Fouling the water of a public spring or reservoir
  • Rash or negligent driving
  • Murder
  • Kidnapping


In the case of a non-arrestable offence, such as mischief or voluntarily causing hurt, a police report must first be made. The police conduct preliminary investigations before bringing the case before the courts. The court will then decide whether or not to issue an arrest warrant.

How an arrest is conducted

Part IV of the CPC details the rules surrounding the actual arrest process.

According to section 75 and 76 of the CPC, the police officer making the arrest is required to physically “touch or confine” the body of the arrestee unless he or she consents to a verbal arrest. If the arrestee resists, the police officer is entitled to the use of reasonable force to complete the arrest, but must not restrain the arrestee more than necessary to prevent escape.

Section 78 of the CPC permits a police officer to search the person upon arrest as well as any place belonging to the arrested person or any other individual with a connection to the offence. Under section 83 of the CPC, a woman may only be searched by another woman. This is done to protect the modesty of the woman being searched.

Rights of the arrested person in custody

When an arrestee has been brought to a police station or detention site, he or she is allowed to contact his family or a lawyer after a reasonable period of time after the arrest. The arrestee’s right to a lawyer is enshrined within Article 9(3) of the Constitution of Singapore, which reads “Where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice.”

According to Article 9(4) of the Constitution of Singapore, as well as section 68 of the CPC, the police can detain a person for only up to 48 hours from the time of arrest, after which, the person will be released unconditionally if the police are unable to determine that he or she has indeed committed an offence. Otherwise, the person will be brought to court or released on bail.

Taking of statements

During investigations, the CPC authorizes the taking of two types of statements by the police: witness statements and cautioned statements.

Witness statements are provided for under section 22 of the Criminal Procedure Code. Section 22 allows the police to orally examine any person believed to have knowledge of the facts and circumstances of the case being investigated. The person being examined is bound to state the truth about the facts of the case, but need not mention things that might expose him to a criminal charge. Such a statement made by the person is known as the witness statement. The statement made by the person must: be in writing, be read to him, and be signed by him.

Section 23 of the CPC deals with cautioned statements. After investigations, the police may decide to press charges against the arrested person. In this case, as per section 23 of the CPC, the arrested person must be served with and have read to him a notice in writing as follows:

“You have been charged with [or informed that you may be prosecuted for] —

(set out the charge).

Do you want to say anything about the charge that was just read to you? If you keep quiet now about any fact or matter in your defence and you reveal this fact or matter in your defence only at your trial, the judge may be less likely to believe you. This may have a bad effect on your case in court. Therefore it may be better for you to mention such fact or matter now. If you wish to do so, what you say will be written down, read back to you for any mistakes to be corrected and then signed by you.”

The arrested person has the right to remain silent. However, his silence or refusal to give a cautioned statement will be recorded.

According to section 258 of the CPC, which deals with the admissibility of the accused’s statements, there are certain circumstances in which a statement obtained from an accused person may be deemed inadmissible in court. For instance, a statement cannot be used as evidence in court if it is made to a police officer below the rank of sergeant. The court will also refuse to admit the statement of an accused if the making of the statement appears to the court to have been caused by any inducement or threat.


Written by Eugene Tai

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Justice is empowering.

And for many a law student, coming to law school is as much about benefitting from its pronounced practical edge as it is about a commitment to high ideals. Many come to law school because they want in some capacity to help the elderly, children, victims of injustice – of our community and the world.

Yet, “justice” is elusive in our legal profession today. When we talk about access to justice, we acknowledge that the playing field is unequal. The turf is titled to favour the rich.

This brings us to the important question: Is our legal system designed only for those who can afford it?

 

Sobering statistics in Singapore

The numbers do not lie. Vast percentages of litigants who enter our courts go unrepresented.

At the Family Court in 2012, more than 96% of applicants and 99% of respondents for maintenance and personal protection orders went unrepresented. Similarly, 80% of defendants for divorce cases appeared without legal representation (The Straits Times, 21 June 2012). These statistics hail from the Subordinate Courts, where approximately 350,000 cases are heard annually – more than 95% of the total caseload in Singapore.

This is worrying, especially since research confirms that litigants-in-person are much more likely to commit serious mistakes in court. Where nuanced claims like alleged employment discrimination are concerned, manuals on self-representation do not go far enough to help. Legal expertise can make or break a case.

We think George Hausen, executive director of the Legal Aid of North Carolina, put it best when he said, “[The] assistance [litigants] receive with filing and procedure doesn’t guarantee them access to justice, just access to the courthouse door.”

In a survey conducted by the Subordinate Courts revealed that more than half (55%) of Singaporean litigants-in-person said that they could not afford a lawyer while a smaller proportion (29%) felt they did not require professional legal services. These numbers speak to the reality that many litigants fall within the proverbial “sandwich class” – they do not qualify for government legal aid but cannot finance litigation on their own. It is important to mention that this statistic only represents the opinion of those who actually step into our courts. We do not know how many civil or criminal legal needs of low-income Singaporeans go unmet altogether.

 

What’s being done now?

One of the most promising initiatives that have burst onto the scene is the Community Justice Centre (CJC).

The CJC is an independent charity. It came into being in 2012, and is a product of the cooperation between the State Courts, Ministry of Law, Ministry of Social and Family Development, Tan Chin Tuan Foundation, and the Law Society. It operates to ensure that self-represented litigants understand the jargon and complexity of legal rules, present their case or cross-examine witnesses effectively, and understand judicial rulings in their cases.

On-site lawyers at the Centre render assistance from simple claims, like for breach of contract, to more complex issues, like child custory or cross-border maintenance claims.

Mr Amolat Singh describes the CJC as “a temple of justice to which many a weary and bewildered traveler on the highway of life beats a path seeking some answers, some clarification or just making some sense of the legal morass they find themselves in.”

In 2013, the HELP (Helping to Empower Litigants in Person) Centres under CJC served a total of 3,981 litigants-in-person seeking assistance in various court-related issues.

Another initiative the Civil Justice Division has delivered is eLitigation for civil and family cases. It is a big step towards realising technology’s promise in the legal pro bono sector. eLitigation provides court users with a single accesspoint for all the active case management of court matters. It also serves as a one-stop portal for all case-related interactions with the Courts. With this, advice and information is provided to a far wider community.

 

What more can be done?

The abovementioned schemes are not exhaustive. The Courts have invested heavily in ramping up legal assistance, and we as a society have become better for it.

But while these schemes are making waves, they continue to face manpower crunches and infrastructure constraints. Consequently, each litigant-in-person has a very limited amount of consultation time. Sometimes, these pockets of consultation are insufficient to help move their cases forward. Thus the obvious path forward, to expand the CJC, would be involving more lawyers in on-site volunteering.

There are also other ways to increase the capacity of our justice system.

For one, Singapore can consider having a list of pro bono lawyers for representation, not merely advice, at the convenient access of litigants-in-person. Similar initiatives have been introduced in other common law jurisdictions to augment access to justice for the poor. In Australia for example, the federal courts provide a Referral for Legal Assistance Scheme. Each of the Australian courts has a list of pro bono attorneys who have agreed to provide pro bono work.

Yet, we should be thinking beyond traditional pro bono strategies. The unsatisfactory state of our pro bono climate is proof itself of the unsustainability of a purely pro bono model.

In order to bridge the chasm between the legal needs of the lower-income and the great resource that is our lawyers, we need to be more tactical about approaching legal aid. We need programmes or new types of firms that conduct “low bono”, which provides legal aid at a lowered or even nominal cost.

“Low bono” is already gaining traction. A great example of this might be the D.C. Affordable Law Firm created in 2015 by the Georgetown University Law Centre. Its goal, loyal to its name, is to provide affordable legal services to DC residents whose incomes fall between 200-400% of the Federal Poverty Level (annual income of approximately USD$23-46k). It helps big firms commit to low-bono work. Since its inception, it has already been described as a “replicable economic model that rewards doing what’s right”.

Of course, this model still involves lawyers who are willing to sacrifice and take lower salaries for challenging work. But such lawyers are, and have always been, the biggest funders of a nation’s access to justice.

In order for the justice system to be effective, we will always need lawyers who have “altruism combined with realism, knowledge of fundamental principles and capacity to apply them, and … enthusiasm for that which is fine and inspiring” (Justin Miller, dean of Duke Law School 1930-34).

All in all, we live in an economically advanced country, with an acute awareness of one’s personal and property rights as well as a greater strain on marriage, meaning that legal assistance will only become more in need in the years to come. The dream is to enable access to justice at every strata of society.

Written in 2016 by Limin Chuan

 

References

  1. Chan, Gary. Access to justice for the poor: The Singapore judiciary at work (2008). Pacific Rim Law & Policy Journal Association. Retrieved from <https://digital.lib.washington.edu/dspace-law/bitstream/handle/1773.1/543/17PacRimLPolyJ595.pdf?sequence=1>
  2. Yeo, Adrian. Access to justice: A case for contingency fees in Singapore (2004). Singapore Academy of Law Journal volume 16. < http://www.sal.org.sg/digitallibrary/Lists/SAL%20Journal/Attachments/334/2004-16-SAcLJ-76-Yeo.pdf>
  3. Margaret Hagam. Open Law Lab, Access to Justice Innovations. <http://www.openlawlab.com/project-topics/access-to-justice-innovations/>
  4. Ashley Chia. “Justice center to aid the self-represented”, The Straits Times. 21 June <http://tanfoundation.com.sg/wp-content/uploads/2014/09/TODAY-21.6.12-Justice-centre-to-aid-the-self-represented.pdf
  5. State Courts Annual Report 2013. <https://statecourts.gov.sg/Resources/Documents/AnnualReport2013.pdf>
  6. “Access to justice for litigants in person through community partnership” Community Justice Centre. Annual Report for Financial Year 2013. <https://www.sggives.org/CheckAccess.aspx?url=/attachments/charity/1231b03e-6e00-4ba1-a2fa-5c96fe61905d.pdf>
  7. “Access to justice for litigants in person through community partnership” Community Justice Centre. Annual Report for Financial Year 2014. <http://cjc.org.sg/images/CJC-AR%202015%20(A4)-R5.pdf>
  8. “Can we close the justice gap? Taking Stock and Taking action.” Duke Law Magazine, Spring 2015 Volume 34 No 1. <https://law.duke.edu/news/pdf/lawmagspring15.pdf>
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Should suicide be criminalised? Should we repeal s 377A of the Penal Code? Should adultery be criminalised? Should we permit euthanasia?

When there is debate over these controversial, or not-so-controversial, issues in Parliament or among the public, the bottom line is—What is the basis for criminalisation? There are two main approaches to justify criminalisation—a liberal approach and a communitarian approach.

Liberals are often described as viewing individuals as atomistic and autonomous[1]. From this perspective, individuals stand apart from one another, and each has supreme rule over his or her own life through the use of ‘rights’ to pursue their personal notions of what is ‘good’. As such, the onus is placed on the government to provide a justification if it seeks to restrict an individual’s freedom, or rights.

Because of the emphasis liberals place on individual’s ability to pursue their personal notion of what is good, they do not think that “morality” should determine societal standards. Instead, most liberals endorse the harm principle as the basis for criminalization[2]. The harm principle says that an action should only be criminalised if it harms another person. However, it is unclear how “harm” is defined, as there can be direct and indirect, physical and non-physical (e.g. emotional) forms of harm.

The communitarian approach, on the other hand, regards persons as social beings that form part of a community. This may be contrasted with liberalism’s assumption of human nature as atomistic or individualistic. As social beings, we affect one another and one’s pursuit of his perceived “the good life,” affects another’s pursuit. Hence, communitarianism balances individual rights with considerations such as economic, social, and shared values. These shared values are communally articulated as values to uphold and promote.

Besides promoting the common good and shared values, a communitarian may assert that laws educate[3]. This is especially true because, as people who live in a community, even our “private” acts may pollute the moral ecology[4] and cause harm. An often used example is how pornography invokes sensual desires with self-focused instant gratification and, in doing so, undermines fidelity in a marriage, weakening the nuclear family.

The Singapore government has subscribed to the communitarian approach and has chosen the following shared values to be published in the 1991 Shared Values White Paper:

  • Nation before community and society above self;
  • Family as the basic unit of society;
  • Community support and respect for the individual;
  • Consensus, not conflict; and
  • Racial and religious harmony.


A case study: s 377A

In 2007, the Parliament put forth a bill to amend the Penal Code, which included the proposed repealing of s 377A, the section criminalising sexual intercourse between males.

The communitarian side of the argument was well-articulated by the then Nominated Member of Parliament, Associate Professor Thio Li-Ann, a constitutional law professor. She contended that keeping s 377A upholds national interest in protecting what is precious and what sustains a “dynamic, free and good society.”

On the other side of the debate, Michael Hor, another law professor, articulated that the action criminalised under s 377A does not harm anyone. The lack of harm is further supported by the government’s pronounced non-enforcement. Because there is no harm, the only reason why s 377A is retained is because people are offended by its being repealed. He points out that this is inconsistent because the non-enforcement will not ensure that people will not be offended (the action can still continue unchecked). Furthermore, “It demeans the individual to have his behaviour, which is presumably important to him and which the government does not think is harmful to society, to be labelled a crime, and him a criminal.”

This shows how the liberal approach and the communitarian approach may stand at odds with one another. They are not just different from their starting positions as discussed earlier, but their approaches may reach completely different conclusions.

Euthanasia

A subtler case in which this clash can be seen is euthanasia.

An argument for decriminalising euthanasia rests on autonomy to make choices on life and death[5].  This is consistent with the liberal approach that values choice and rights above other competing values, as this notion of the “right to die” has been traced to the belief that “man is the master of his own destiny.”[6]

On the other hand, the Court of Appeal in UK, when confronted with this issue,  said, “[T]he mere fact that there may be rights to autonomy and to be treated with dignity does no more than raise the question whether they should be given priority in circumstances like this”[7]. In other words, the Court of Appeal was highlighting that the mere existence of dignity and autonomy does not mean that it should be given top priority; rather, the existence of these competing values raise the question whether more weight should be given to them than to the sanctity of life.

The contrast between “man is the master of his own destiny” and the view taken by the Court of reveals the value judgement involved in many of the decisions that governments face. It is by this open acknowledgement of a value judgement that allows the public to engage on a discussion that truly reflects the value-laden reality of a decision.

Adam Lambert’s Performance in Countdown 2016

Before Countdown 2016 in Singapore, there were two opposing petitions: one in opposition to Adam Lambert performing at that event and the other in support of his performance. Interestingly, both sides of the controversy purported to protect family values.

The petition opposing his performance:

Allowing Adam Lambert to perform as the star of Countdown 2016 shows disregard for the values of a majority of family-centric Singaporeans who have consistently resisted the promotion of western liberal ideas about family values and societal models. (emphasis added)

The petition supporting his performance:

The opposing petition are anti family and anti Singaporean values because their discrimination harms family members. We support real family values and real Singaporean values by being modern and inclusive. (emphasis added)

It is interesting to observe that while both sides claimed to promote “family values,” it may represent vastly different ideals.

Conclusion

Although competing views exist, this author views the communitarian approach to articulating and balancing competing considerations as preferable in the arena of public debate.

In this author’s view, although liberalism sets itself out as being “neutral,” letting people make their own choice, the action of being “neutral” is not actually value-neutral since the liberal values of freedom, choice, and fairness are themselves values too.[8] In a public discussion, the liberal values of tolerance and choice should come to the forefront, just as transparently as any other value that society may value, e.g. sanctity of life and family values. How much weight society should place on the different values should be articulated. In this regard, it is the communitarian approach in the public arena that allows for the needful and welcome conversation which liberalism may try to circumvent.

Written in 2016 by Chua En Ning Janna

Bibliography

  1. AP Simester, JR Spencer, GR Sullivan and GJ Virgo, Simester and Sullivan’s Criminal Law: Theory and Doctrine (Hart, 2010)
  2. Chua, Lynette J. Kher Shing, “Saying No: Sections 377 and 377A of the Penal Code.” Singapore Journal of Legal Studies [2003] 209–261.
  3. Diana Fletcher, “Euthanasia—Law At the Edge of Life.” [1986] 7 SingLRev 22-23.
  4. George, Robert P. (2000) “The Concept of Public Morality,” American Journal of Jurisprudence: Vol. 45: Iss. 1, Article 2. <http://scholarship.law.nd.edu/ajj/vol45/iss1/2>
  5. Hor, Michael. “TOC Feature: 377A – To Prevent What Harm? – The Online Citizen.” The Online Citizen. 10 Oct. 2007. Web. 06 Feb. 2016. <http://www.theonlinecitizen.com/2007/10/377a-to-prevent-what-harm/>.
  6. Lee, Yvonne C. L. “’Don’t Ever Take a Fence Down Until You Know the Reason it was put up’”—Singapore Communitarianism and the Case for Conserving 377A” Singapore Journal of Legal Studies [2008] 347-394
  7. Nicklinson v Ministry of Justice [2013] EWCA Civ 961 <http://www.bailii.org/ew/cases/EWCA/Civ/2013/961.html>.
  8. Parliamentary Debates Singapore Official Report, vol 83, col 2242 (22 October 2007) (Prof. Thio Li-ann).
  9. Pilcher, Rachel. “Petition To Stop Adam Lambert Performing In Singapore Closes.” Petition To Stop Adam Lambert Performing In Singapore Closes. Yahoo!, 30 Nov. 2015. Web. 06 Feb. 2016. <https://sg.celebrity.yahoo.com/post/134263167419/petition-to-stop-adam-lambert-performing-in>.
  10. Sandel, M. J. (1984). Liberalism and its critics. New York: New York University Press.
  11. Toh, Puay Sun, and Yeo, Stanley. “Decriminalising Physician-Assisted Suicide in Singapore”. (2010) 22 Singapore Academy of Law Journal 379-412.

[1] Yvonne Lee p. 350

[2] Lynnette Chua p. 213 and Simester p. 638

[3] Yvonne Lee, using R.A. Duff’s Trials and Punishment as support

[4] The concept of moral ecology is mentioned in Yvonne Lee’s article at p.379 and elaborated by R.P. George. It was also used by Prof Thio Li-Ann in her speech.

[5] Toh, Puay Sun, and Yeo, Stanley. “Decriminalising Physician-Assisted Suicide in Singapore”. (2010) 22 Singapore Academy of Law Journal 379-412.

[6] Diana Fletcher, “Euthanasia—Law At the Edge of Life.” [1986] 7 SingLRev 22-23.

[7] Nicklinson v Ministry of Justice [2013] EWCA Civ 961 at [54], emphasis added

[8]Sandel, M. J. (1984). Liberalism and its critics. New York: New York University Press.

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