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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]

0

Introduction

On 6 September 2018, the Supreme Court of India ruled in the case of Navtej Singh Johar & Ors. v Union of India thr. Secretary Ministry of Law and Justice[1] (“Navtej Singh Johar”) that the criminalisation of consensual sex among adults in private, including homosexual sex under Section 377 of the Indian Penal Code[2] (“IPC”) is unconstitutional. The reading down of S377 effectively decriminalises consensual homosexual sex in India.

This historic repeal has sparked much discussion in Singapore over the fate of s 377A of the Penal Code,[3] particularly in the context of the ongoing 2018 Penal Code Review. In light of the close legislative history of the Penal Codes in both countries, many wonder about the implications the repeal in India will have on its Singapore counterpart. Therefore, this article aims to give a brief outline of the legislative history of both jurisdictions and to shed light on how the landscape surrounding the issue has changed in recent years.

Section 377 in India[4]

  1. Unnatural offences. —Whoever voluntarily has carnal intercourse against the order of nature with any man, woman or animal shall be punished with imprisonment for life, or with imprisonment of either description for a term which may extend to ten years, and shall also be liable to fine.

Explanation. —Penetration is sufficient to constitute the carnal intercourse necessary to the offence described in this section.

S377 outlawed sexual activities that were “against the order of nature” and was interpreted by courts as, among other acts such as bestiality, referring to homosexuality.[5] For the purposes of this article, all further mentions of S377 of the IPC refer only to its criminalisation of consensual homosexual sex in private.

In 2009, the Delhi High Court found S377 to be unconstitutional. However, the Supreme Court subsequently reversed the decision in 2013, arguing that the repeal of S377 was an issue for the legislative.[6] This year, the Indian government placed the responsibility back onto the Supreme Court, saying that it would not contest its decision.[7]

Key elements of the ruling

  • The court had to determine if S377 of the IPC was constitutional with respect to its criminalisation of consensual sexual intercourse between adult persons belonging to the same sex in private

  • S377 of the IPC, insofar as it criminalises consensual homosexual conduct is unconstitutional[8]

  • S377 will continue to govern “non-consensual sexual acts against adults, all acts of carnal intercourse against minors, and acts of bestiality”[9]

  • Concluded prosecutions shall not be reopened but the reading down of S377 in Navtej Singh Johar can however be relied upon in pending cases[10]

  • LGBT people are entitled to the protection of equal laws and to be treated without stigma[11]


Impact of S377 in India

S377 is rarely enforced in India. However, LGBT groups have highlighted that it has often been used to blackmail and harass homosexual Indians.[12]

For instance, Humsafar Trust, a LGBT group, said that its crisis response team had handled 18 of such cases in the past two years, involving blackmailing by the police or people threatening to report their activities to authorities. They have also received at least 52 reports of LGBT people experiencing workplace harassment but could not report them due to S377.[13]

One account shared that he had heard of friends who had been beaten up by gangs or taken to prison where police officers demanded bribes to let them off.[14]

Section 377A in Singapore

Singapore was once a part of the British empire, administered by the British from Calcutta, India. As such, many of our laws, including our Penal Code, were imported from India. S377 of the IPC was imported as s 377 of our Penal Code. In 2007, s 377 was repealed by the Penal Code (Amendment) Act 2017 and substituted with a new s 377 which criminalises sex with corpses.

Section 377A of the Penal Code operates to criminalise consensual sex between adult men. It was introduced into the Penal Code in 1938 and can be traced to the Labouchere Amendment.

Outrages on decency[15]

377A.  Any male person who, in public or private, commits, or abets the commission of, or procures or attempts to procure the commission by any male person of, any act of gross indecency with another male person, shall be punished with imprisonment for a term which may extend to 2 years.

With the repeal of S377 of the IPC in India, discussion has brewed locally as to whether Singapore ought to follow suit. The discussion below aims to cover the following:

  • Comparison between S377 of the IPC and s 377A of the Penal Code

  • History of the debate/fight to repeal s 377A in Singapore and how the landscape surrounding the issue has changed in recent years

  • Various opinions for and against the repeal of s 377A


Comparison between laws against unnatural sex in India and Singapore

As the aforementioned has shown, s 377 of the Penal Code in Singapore was adopted from the Indian Penal Code of 1860. However, since its initial adoption, s 377 has been modified in Singapore and now differs in form, and arguably substance, from its original adaptation of the Indian Penal Code of 1860.

Most notable is the addition of s 377A into the Singapore Penal Code, which criminalizes penetrative sexual acts between men. Arguably, the introduction of s 377A serves as a mere extension of its predecessor, s 377, in that it serves the function of prohibiting unnatural sex. However, populist culture has sketched the enactment of s 377A as a statute oppressing LGBTQ rights. Therefore, the debate surrounding the repeal of s 377A extends beyond the legalisation of homosexual acts – it is symbolic of the fight for LGBTQ rights in Singapore.

History of the debate/fight to repeal s 377A in Singapore and how the landscape surrounding the issue has changed in recent years

The 2007 Penal Code (Amendment) Bill

In 2007, Parliament introduced the Penal Code (Amendment) Bill. The amendment proposed for the repeal of s 377, which had been read by courts in both Public Prosecutor v. Kwan Kwong Weng[16] and Annis bin Abdullah v. Public Prosecutor[17] to criminalise oral and anal sex between consenting adults. While the 2007 amendment bill was successful in repealing s 377, the proposal to repeal s 377A did not receive the same support.

During the announcement of the 2007 Penal Code (Amendment) Bill, Member of Parliament, Siew Kum Hong, had submitted a public petition requesting Parliament to repeal s 377A of the Penal Code. Within three days of its submission, the petition had garnered over two thousand five hundred signatories in support of the repeal. However, over 15,000 Singaporeans had signed the petition calling for the retention of the section.[18] This was a precursor for the heated debate that followed in Parliament.

The proposal to retain s 377A in the Singapore Penal Code was hotly debated during the parliamentary debate. During the debate, Prime Minister Lee Hsien Loong spoke to explain the Government’s position on the decision to retain s 377A.[19]

  • Homosexuals should not set the tone for society but the Government will not proactively enforce s 377A either

  • Abolishing s 377A was not going to end the debate on homosexuality

    • Conservative Singaporeans will still be deeply concerned over the “moral values of society”

    • Abolition of s 377A alone was not going to satisfy gay rights activists

  • Society has not come to a consensus on homosexuality. Instead, both sides had strong views which would only be divisive


Given that the a repeal of s 377A was not going to be definitive on the matter and that Singaporeans were still strongly divided over the issue, PM Lee felt that maintaining the status quo was the best compromise to make. PM Lee acknowledged the legally untidiness and ambiguity of the solution but felt it was nonetheless a practical solution to an inherited piece of law.

Challenges to the constitutionality of s 377A

Section 377A has been challenged time and again for being unconstitutional. Arguments have been put forth that the statute goes against Arts 9 and 12 of the Constitution,[20] which deals with rights to personal liberty and equality before the law respectively. In particular, there have been two landmark cases,[21] which were heard together in a consolidated judgment handed down by the Supreme Court of Singapore dealing with the constitutionality of s 377A.

The two groups of plaintiffs had been unsuccessful in their separate applications to the High Court. Both groups appealed against the High Court decisions and a consolidated appeal was heard by the Court of Appeal. In a seventy-page judgment, the Court of Appeal dismissed both appeals, holding that s 377A was not unconstitutional under Arts 9 and 12 of the Constitution.

Outcome of the consolidated appeal in 2014

The two landmark cases wherein s 377A was challenged as being unconstitutional were Tan Eng Hong v. Attorney General [2012] SGCA 45 and Lim Meng Suang and another v. Attorney General [2013] SGHC 73. In a joint judgment which was delivered on 28 October 2014,[22] the court held that s 377A satisfied the legal requirements under Art 12 and that the provision was not unconstitutional. In the judgment, the court opined that the categorisation of homosexuals as a class served the purpose of s 377A. Additionally, the court found that s 377A did not infringe on the guarantee for equal protection under Art 12 as there was an acceptable basis for the purpose of s 377A when formulated by Parliament. Homosexuality also did not fall under Art 12(1) which did not touch on issues of “gender”, “sex” and “sexual orientation”. Therefore, s 377A did not contravene Art 12 and is not void for unconstitutionality.

The court also took extra care to avoid contemplating extra-legal issues and step into legislative territory.[23] Despite acknowledging the validity of many of the arguments heard, the court felt that the issue “involved extra-legal considerations and matters of social policy which were outside the remit of the court, and should…have been canvassed in the legislative sphere”.[24]

Reactions in Singapore towards the historic repeal in India

While our jurisdiction may have a shared judicial history with India with regards to the Penal Code, it is evident that the repeal of s 377 in India has no direct impact on its Singapore counterpart. That being said, the news sparked a mix of reactions in Singapore.

Reactions were strident. While LGBT activists were encouraged by the landmark decision in India, other more conservative groups in Singapore were strongly opposed to it.

An online survey conducted from end-July to early-August 2018 found that 55 per cent of Singaporeans supported s 377A while 12 per cent opposed it. 750 Singaporean citizens and permanent residents aged 15 to 65 took part in the survey.[25]

Law Minister K Shanmugam emphasised that Singapore remained “deeply split” on this issue and that “the laws will have to keep pace with changes in society and how society sees these issues”.[26]

Various opinions for and against the repeal of s 377A

Section 377A should be repealed

  • Homosexuality is not a disease/mental disorder. WHO has, since 1990s, deleted it from its list of recognised mental disorders. Science pegs a person’s sexual orientation to the interplay between genetic, hormonal and environmental influences.

  • The majority of countries in the United Nations do not criminalise homosexual intercourse (124 of 196 states). Among these countries includes traditionally conservative Eastern countries including China, South Korea and Japan.

  • The concepts of sin and crimes should not be conflated. While homosexuality may be dubbed a sin, transcending various religions and personal beliefs, it should not be made a crime. Singapore, being a secular state, should not have to play a role in enforcing the dogmas of said religions and beliefs.


Section 377A should not be repealed

  • The argument that male-on-male sex ought not to be criminalized when the activity is consensual is flawed because the consent, while an important value, is not absolute. Should this argument be merited, the logical extension to such an argument would include the repeal of other statues, including s 376G of the Penal Code which currently prohibits incest.

  • The matter of whether homosexuality is biological is a highly politicized matter.


Conclusion

In conclusion, while the historical decision by the Indian Supreme Court has renewed the debate over our very own s 377A, it would seem that Singaporeans remain deeply divided over the issue. Despite our shared judicial history with respect to the Penal Code, and the fact that the repeal occured in a similarly conservative society like India, the situation in Singapore is very much different.

While the Indian government had deferred the issue of the constitutionality of S377 in India to its Supreme Court, the power to repeal s 377A remains entirely in the hands of the legislative branch of Singapore.[27] For now, it would seem that the House remains divided on the matter.[28] That being said, the issue will continue to remain open for future generations to decide. As Law Minister K Shanmugam noted, “the laws will have to keep pace with changes in society and how society sees these issues”.

This article was written in 2019 by Glenn Ang Yu Jie and Elizabeth Chin Jia Qi, NUS Law Batch 2022.

Bibliography

[1] Navtej Singh Johar & Ors. v Union of India thr. Secretary Ministry of Law and Justice, W.P. (Crl.) No. 76 of 2016 (Supreme Court of India, 06/09/2018).

[2] S. 377, The Indian Penal Code, 1860.

[3] Penal Code (Cap 224, 2008 Rev Ed Sing), s 377A.

[4] Supra note 2.

[5] Withnall, A., “India’s Supreme Court rules gay sex is no longer crime in historic Section 377 judgment”, The Independent (6 September 2018), online: <https://www.independent.co.uk/news/world/asia/india-gay-sex-crime-supreme-court-section-377-decision-lgbt-rights-illegal-a8524971.html>

[6] Sommerlad, J., “Section 377: How India brought an end to criminalisation of its LGBT+ community”, The Independent (6 September 2018), online: <https://www.independent.co.uk/news/world/asia/section-377-india-gay-sex-crime-lgbt-supreme-court-dipak-misra-a8525116.html>

[7] ET Online, “Section 377: Government leaves decision to the wisdom of the Supreme Court”, The Economic Times (11 July 2018), online: <https://economictimes.indiatimes.com/news/politics-and-nation/section-377-government-leaves-decision-on-the-wisdom-of-the-supreme-court/articleshow/64942825.cms>

[8] Supra note 1 at [156], Dr Dhananjaya Y Chandrachud, J.

[9] Supra note 1 at [21], Indu Malhotra, J.

[10] Ibid.

[11] Supra note 1 at [97], R.F. Norman, J.

[12] Supra note 5.

[13] Safi, M., “Campaigners celebrate as India decriminalises homosexuality”, The Guardian (6 September 2018), online: <https://www.theguardian.com/world/2018/sep/06/indian-supreme-court-decriminalises-homosexuality>

[14] Dasgupta, R., “This is what it was like growing up queer in India when homosexuality was illegal”, The Independent (30 July 2018), online: <https://www.independent.co.uk/voices/india-gay-childhood-lgbt-illegal-homosexual-laws-section-377-a8469781.html>

[15] Supra note 3.

[16] Public Prosecutor v. Kwan Kwong Weng [1997] SGCA 8

[17] Annis bin Abdullah v. Public Prosecutor [2004] SGHC 52

[18] Radics, G.B. (2005), Section 377A in Singapore and the (De)Criminalisation of Homosexuality

[19] Parliamentary Debates Singapore: Official Report, vol 83 at col 2397 (23 October 2007) (Mr. Lee Hsien Loong).

[20] Constitution of the Republic of Singapore (1985 Rev Ed), arts 9(1), 12(1), 12(2).

[21] Tan Eng Hong v. Attorney-General [2013] SGHC 199; Lim Meng Suang v. Attorney General [2013] SGHC 73.

[22] Lim Meng Suang and another v. Attorney-General and another appeal and another matter [2015] 1 SLR 26; [2014] SGCA 53.

[23] Ibid at [8] and [10].

[24] Ibid at [189].

[25] Gilaine Ng, “55 per cent of Singapore residents support Section 377A: Ipsos survey” The Straits Times (10 September 2018), online: <https://www.straitstimes.com/singapore/55-per-cent-of-singapore-residents-support-section-377a-ipsos-survey>

[26] Faris Mokhtar, “The Big Read: With a house still divided over 377A, time to seek common ground” TODAY (15 September 2018), online: <https://www.todayonline.com/big-read/big-read-house-still-divided-over-377a-time-seek-common-ground>

[27] Gilaine Ng, “55 per cent of Singapore residents support Section 377A: Ipsos survey”, The Straits Times (10 September 2018), online: <https://www.straitstimes.com/singapore/55-per-cent-of-singapore-residents-support-section-377a-ipsos-survey>

[28] Supra note 26.

0

Introduction

The 2018 case of Public Prosecutor v ASR¹ (ASR) centred on an accused person who was primarily charged for 3 offences of aggravated rape and sexual assault by penetration². The accused person and the victim were both afflicted with mental disabilities and were 14³ and 16⁴ years old at the time of the offence respectively. There were two broad concerns raised in the High Court when Justice Woo Bih Li came to his decision. First, there were serious impediments in sentencing the accused due to the lack of sentencing options available to the Court⁵. Second, the Court found that there was an ambiguity in the Criminal Procedure Code (CPC) provisions pertaining to their applicability⁶. The question at hand was whether the provision should be applicable at the time of the commission of the offence or on a later date such as conviction or sentencing.

This article will first discuss the competing principles of rehabilitation and retribution before underlining the specific concerns that arose in the judgment pertaining to the limitations on sentencing options and suggest possible amendments accordingly. This will be followed by a discussion on the ambiguity of the CPC provisions and recommended improvements.

Brief summary

In ASR, the accused had spotted the victim waiting at a traffic light whilst he was taking a break at a 7-Eleven outlet nearby the Bukit Panjang flats where he had been distributing flyers⁷. The accused then followed the victim to her flat and when she got off the elevator he followed her and committed the sexual offences that he was subsequently charged for⁸. This article will not discuss the precise nature of the sexual offence in question, but there was no doubt in the court’s mind that the conduct was repulsive⁹.

Rehabilitation and Retribution

The Prosecution in ASR submitted that the sentencing principles of prevention and retribution should outweigh that of rehabilitation¹⁰, whilst the Defence argued otherwise¹¹.

Rehabilitation is the central goal of a correctional system, which functions on the assumption that offenders can be treated and can be returned to a crime free lifestyle. Rehabilitation includes a wide variety of programs for mental health, substance abuse, and educational services¹². Retribution, on the other hand, functions on the principle that the punishment should fit the crime and can be considered a susceptible principle to the extent that it ranges in doctrines from “an eye for an eye” to “the Golden Rule”¹³.

It is clear that rehabilitative principles tend to be more focused on the offender and the indoctrination of relevant social values, whilst retributive principles tend to be focused on the victim in ensuring that the punishment meted out to the offender can be deemed to be just.

In the present dispute, the Court held that the principle of rehabilitation should guide the eventual sentence since it provided for a “practical longer-term solution to the issues that would inevitably confront the Accused and implicate the broader society”¹⁴. The position of the Court was best encapsulated by the following rhetorical questions asked by the judge: “[W]hat would become of the Accused and of those around him when he is subsequently released in his early thirties? Would society be better protected when the Accused is released from incarceration, stronger and bigger, but lacking insight into the consequences that his choices and conduct carry?”¹⁵.

Therefore, it was clear, that in ASR, the Court had adopted a stance in favour of rehabilitative principles that guided its decision in sentencing the accused to RT instead of imposing the much harsher sentence submitted by the Prosecution.

Criticism of judgment

It is interesting to note the stance adopted by the Court in its judgment. In explaining why it had ruled in favour of a RT and not imprisonment and caning, the Court had adopted a rather dismissive stance towards the Prosecution’s submissions, bringing them up and merely dismissing them as not precluding rehabilitation as a predominant sentencing consideration¹⁶. This is likely due to the polar opposite sentences that the parties were seeking, which the Court understood was a product of the lack of sentencing options provided to the courts by legislation. As such, it is clear that there is a crucial need to augment the statute so as to provide for a greater spectrum of sentencing options that can be applied in unique cases such ASR.

Sentencing options

In arriving at his decision, the Court found that there were severe limitations in the legislation in respect of the sentencing options available in the specific case¹⁷. The Court found following problems with regard to the sentencing options made available to it:

    • There were limited sentencing options available to deal with the accused person’s intellectual disability in the long term¹⁸;

    • There were no relevant provisions in the Mental Health (Care and Treatment) Act¹⁹;

    • There were extremely limited circumstances when a Mandatory Treatment Order (MTO) could be issued pursuant to s 339(3) of the CPC and could not be applied given the facts of the present case²⁰; and

    • There were no provisions with regard to person who suffer from some intellectual disability but are not of unsound mind²¹.

Furthermore, the Court found that there where there is a statutorily mandated minimum period of incarceration , the Court has no discretion to reduce the period on account of the offender’s intellectual disability²². Moreover, in the context of caning, there was neither an exception made for offenders with intellectual disability nor any discretion given to the courts to account for such a disability²³. There was also no other option to add anything substantive over and above Rehabilitative Training (RT), or as an addendum to enhance the efficacy of a RT sentence²⁴.

It was thus clear that there were strict limitations to the sentencing options that the Court had access to and this led the Court to have to decide between the strict sentence proposed by the Prosecution of 15-18 year’s imprisonment in aggregate and at least 15 strokes of the cane, and the Defence’s proposed sentence of a RT²⁵. In coming to its decision the Court had to weight and evaluate the competing sentencing principles of rehabilitation and retribution, which guided its verdict.

Recommended improvements

It is evident that the courts will never be able to cater to the wide spectrum of cases and parties should there be a limitation on the sentencing options that they have access to. This is particularly true in cases involving accused persons who suffer from mental disabilities such that their culpability is lower and a proper rehabilitative programme can potentially yield positive results pertaining to their reintegration back into society as a responsible citizen. It is clear that carefully tailored rehabilitation programmes are effective²⁶. Furthermore, it has been established that for such accused persons with mental disabilities, their behaviours can often be modified by education or training²⁷.

Therefore, it is submitted that the legislation should be amended to include general provisions allowing courts to order treatment specific to accused persons on their own discretion unless the accused is certified to be of such unruly a character that he cannot be detained in a place of detention or a rehabilitation centre²⁸. Such provisions should be applicable even for offences where there are statutory mandatory sentences. Moreover, there should be a requirement for a professional and credible medical certification of the accused person’s mental disability.

This will allow for the courts to have greater discretionary powers in unique cases such as the one in ASR, where the accused was mentally disabled but did not suffer from an unsoundness of mind²⁹. As a consequence, the courts will be able to deal with cases of mentally disabled offenders more effectively instead of having to decide between overly harsh retributive punishments and reformative training with questionable effectiveness.

Ambiguity within the CPC provisions

The Court in ASR had also raised concerns regarding the time at which the CPC provisions pertaining to the assessment of the offender’s age³⁰ are applicable and stated that this should be clarified by way of legislation³¹. The Court found that indeed if the application date of the legislation is not the date of commission of the offence but a later date, such as the date of conviction or sentencing, there may arguably be a heavier punishment with retrospective effect which appears contrary to the basic notion of criminal law.

While the judge appreciated the arguments in support of the view that the applicable date should be later than the date of the commission of the offence, it is submitted that this concern was especially pressing in ASR where pre-trial formalities had delayed the hearings by nearly two years³², over which time the accused had gone past 16 years old and was no longer classified as a juvenile as provided for in the CPC.

Thus, it is clear that in cases with a similar factual matrix as the one in ASR, where delay in proceedings and hearings may cause the accused to go past the threshold age of a juvenile, it is important to seek clarity as to when the CPC provisions apply as this will affect the gravity of the sentence that will eventually be meted out.

Recommended improvements

In light of the concerns raised by the Court, it is submitted that two amendments should be made by way of legislation. First, the CPC provisions should be clarified to be applicable at the date of the commission of the offence. The primary reason behind this is, as the Court highlighted in ASR, which is that there is a risk of applying a heavier punishment with retrospective effect. Furthermore, in instances such as the one in ASR, where pre-trial formalities had caused the significant delay, it would be unfair the accused person to be faced with harsher punishments when he eventually gets trialled as an adult.

Similarly, the second proposed amendment is that s 33(6) of the Children and Young Persons Act³³ (CYPA) should be amended to state that the assessment of the offender’s age should occur at the time of the commission of the offence instead of the date of the commencement of the hearing.

The fundamental principle at play here would be that of ensuring that the eventual punishment matches the culpability of the offender at the time of the offence. If the offender was a juvenile at the time of the commission of the offence, it is clear that his culpability would be lesser than that of an adult who is deemed to be fully aware of the gravity of his actions³⁴. It would be gravely unfair to the accused person to be trialled as an adult simply due to the delays in the hearings and proceedings causing him to become ex post facto older. Hence, the application of the date of the abovementioned provisions should be at the time of the commission of the offence.

Conclusion

The case of ASR raised significant and pressing concerns pertaining to sentencing options and the ambiguity in the time of application of the CPC provisions. It is a unique case where the accused fell through the cracks of the Singapore legal system due to his special circumstances and it showed that the courts are not adequately equipped to deal with such cases.

In the pursuit of justice, it is necessary to ensure that the courts are given greater discretionary powers in sentencing such offenders to rehabilitative programmes specifically tailored to their needs and that the CPC provisions, together the CYPA, are amended to provide that the date of assessment of the age of an accused person should be the date of the commission of the offence instead of any later date.

Although the legal system has remained rather effective in ensuring that offenders are justly dealt with, this will not be the case all the time across a plethora of factual matrices. It is important for the legislature to recognise the shortcomings in legislations and to supplement them in an attempt to clarify any ambiguities and to address any gaps in them.

Written in 2019 by Arjit Pandey and Ashleigh Gan, Class of 2022

Bibliography

[1] Public Prosecutor v ASR [2018] SGHC 94.

[2] Ibid, at [1].

[3] Ibid.

[4] Supra, n 1. At [5].

[5] Supra, n 1. At [138].

[6] Supra, n 1. At [168].

[7] Supra, n 1. At [22].

[8] Supra, n 1. At [22]-[27].

[9] Supra, n 1. At [80].

[10] Supra, n 1. At [39].

[11] Supra, n 1. At [44].

[12] Huebner, B. M. (2009, December 14). Rehabilitation. Retrieved December 27, 2018, from http://www.oxfordbibliographies.com/view/document/obo-9780195396607/obo-9780195396607-0046.xml#firstMatch

[13] Hirby, J. Definition of Retribution in Criminal Justice. Retrieved December 27, 2018, from https://thelawdictionary.org/article/definition-of-retribution-in-criminal-justice/.

[14] Supra, n 1. At [102].

[15] Supra, n 1. At [101].

[16] Supra, n 1. At [108].

[17] Supra, n 5.

[18] Supra, n 1. At [139].

[19] Supra, n 1. At [140].

[20] Supra, n 1. At [141]-[142].

[21] Supra, n 1. At [143].

[22] Supra, n 1. At [144].

[23] Supra, n 1. At [146].

[24] Supra, n 1. At [147].

[25] Supra, n 1. At [34].

[26] Miceli, Victoria (2009), Analyzing the Effectiveness of Rehabilitation Programs. Senior Honors Projects. Paper 158. Retrieved December 2017, from http://digitalcommons.uri.edu/srhonorsprog/158.

[27] Joe P. Tupin & Harold A. Goolishian, Mental Retardation and Legal Responsibility, 18 DePaul L. Rev. 673 (1969), at 681.

[28] See s 37(2) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed).

[29] Supra, n 21.

[30] See s 2(1) of the Criminal Procedure Code (Cap 68, 2012 Rev Ed).

[31] Supra, n 6.

[32] Supra, n 1. At [32].

[33] See s 33(6) of the Children and Young Persons Act (Cap 38, 2001 Rev Ed).

[34] Public Prosecutor v Mok Yuen Ping Maurice [1998] 3 SLR(R) 439 at [21].

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1. Introduction

As keenly recognised by the Singapore Court of Appeal (“SGCA”) in Kho Jabing v Public Prosecutor [2016] 3 SLR 135[1] (“Kho Jabing”), “Truth and finality are both vital, and their competing demands must be held in balance”. Indeed, where intuition should have it that criminal appeals heard by the highest court of the land are to be final, it is now a matter of fact that these concluded appeals may be reviewed, or informally termed “reopened”, if it serves the pursuit of truth. In this article, we will review the law on   the review of concluded criminal appeals in Singapore, the systems adopted by other jurisdictions in dealing with similar matters and examine the success of Singapore’s system.

2. The Law of Reopening in Singapore

Historically, the SGCA has consistently held that it lacked jurisdiction to reopen and reconsider the merits of a concluded criminal matter,[2] as the court’s jurisdiction ceases after the conclusion of an appeal. However, in Yong Vui Kong v Public Prosecutor [2010] 2 SLR 192 (“Yong Vui Kong”), Chan Sek Keong CJ rejected the argument and suggested that the SGCA has inherent jurisdiction to reopen a concluded criminal matter[3]. Chan CJ suggested that since the Supreme Court Judicature Act (Cap 322, 2007 Rev Ed) (“SCJA”) did not provide that the court’s jurisdiction ends after hearing an appeal, there is no reason why it should not exercise the judicial power vested in it by Article 93 of the Singapore Constitution to correct a miscarriage of justice. This was later affirmed by the SGCA in Kho Jabing, clarifying that when the court exercises this power of review, it is acting within the scope of its statutorily-conferred appellate jurisdiction, which is not completely exhausted merely by the rendering of a decision on the merits of the appeal.[4]


The SGCA has consistently emphasised finality as being an integral aspect of justice. Thus, to protect the integrity of the judicial process as well as to prevent any damage to public confidence, the SGCA has notably set a high standard for  reviewing concluded criminal appeals. Pursuant to the SGCA’s recommendation[5], Parliament codified the requirements set out in Kho Jabing into Sections 394F-394K of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), through the enactment of the Criminal Justice Reform Act 2018 (No. 19 of 2018).


As a preliminary threshold requirement, prior to the appellate court hearing the review application, leave must be sought from it. This can be granted or refused summarily[6]. Furthermore, only one review application may be filed for any decision[7], and a rejected leave application would be considered a failed review application for the purposes of this limit[8] For a review application to be successful, the appellate court must be satisfied that there is sufficient material (either evidence or legal arguments) on which it may be concluded that there has been a miscarriage of justice with respect to the decision sought to be reviewed[9].


For the material to be deemed sufficient, the material must satisfy all the following requirements – (1) the material must not have been canvassed at any stage of the criminal matter, (2) even with reasonable diligence, the material could not have been adduced earlier and (3) the material is compelling, in terms of being reliable, substantial, powerfully probative and capable of showing miscarriage of justice almost conclusively[10]. If the material consists of new legal arguments, it must arise from a change in the law that arose after the proceedings for the criminal matter has concluded[11]. Notably, raising new legal arguments involving constitutional points does not automatically entitle an applicant to a review of his concluded appeal. It would have to depend on the merits of the constitutional argument and whether the argument would affect the outcome of the case.[12]


For the court to conclude that there has been a miscarriage of justice, the earlier decision must be demonstrably wrong – which means that it must be apparent, based only on the evidence tendered in support of the review application and without further inquiry, that there is a powerful possibility that the earlier decision is wrong[13]. Alternatively, it must be shown that the earlier decision was tainted by fraud or a breach of the rules of natural justice, compromising the integrity of the judicial process[14]. If the review is with regard sentencing, for a decision on sentencing to be “demonstrably wrong”, it must be shown that the decision was based on a fundamental misapprehension of the law or of the facts, such that the decision is blatantly wrong on the face of the record[15].


However, these requirements do not impinge on the inherent jurisdiction of the appellate court to review its earlier decision on its own motion if the appellate court finds that justice demands it.[16] Regardless, it is likely that the requirements under s394J will have to be met for most review applications to be successful given that the invocation of the court’s inherent jurisdiction relates back to the principles for reviewing concluded appeals enunciated Kho Jabing.[17] These principles are essentially the same as the requirements for review set out in s 394J. The inherent jurisdiction of the appellate court, therefore, simply provides flexibility to grant review in the rare situation where the requirements under the CPC are not met. This ensures that there will be no risk of injustice as in clearly deserving cases, a clear miscarriage of justice may be corrected at the court’s discretion regardless of statutory requirements.[18]


3. Other Jurisdictions

In the United Kingdom, a Criminal Cases Review Commission (“CCRC”) was established to refer cases that merit review to an appellate court after exhausting all avenues of appeal. The CCRC is an independent, non-departmental statutory body empowered with investigative capabilities. Previously, cases seeking review had to be referred through the Home Secretary, and the Home Secretary had the discretion to exercise his powers to refer investigations and choose whether to refer cases to an appeals court or recommend a Royal pardon[19]. However, as the executive was reluctant to be seen as usurping the power of the judiciary, too much caution was exercised in the referrals[20]. The CCRC was set up after several high-profile cases – the Birmingham Six and Guildford Four – drew criticism over the lack of avenues for victims of miscarriage of justice to make their case[21].


For the CCRC to exercise its power, there must be a real possibility that the court will overturn the criminal conviction or reduce a sentence, and new evidence not reasonably available to be adduced at trial.[22] The new evidence must have been admissible at appeal. For instance, entirely new evidence such as a psychiatric report made after the trial itself would not be accepted as it would be inadmissible at appeal[23]. The CCRC also has a special legal power to order and obtain documents from public bodies[24]. The CCRC can apply to the Crown Court to order private bodies to produce documents[25] and can appoint investigating officers to undertake inquiries[26].

This approach in establishing an independent review body has gained traction in other common law jurisdictions, with New Zealand also implementing a Commission on 1 July 2020[27]. There have been talks in Australia about establishing a similar Commission[28]. In Canada, a public consultation is currently underway on the potential establishment of a similar Commission[29].

4. Commentary

Should Singapore adopt a similar CCRC system? There are advantages and disadvantages between establishing a separate CCRC versus relying on the appellate  court itself to consider the merits.


The CCRC provides a more structured approach and stronger government support in the processing of potentially meritorious cases. Case managers are empowered with legal powers to further probe and investigate cases. In comparison, in Singapore, there is no structured system provided by the Government for the processing of review cases. The applicant would have to conduct his own further investigations to exonerate himself. Furthermore, while the applicant may apply to court for the production of relevant documents, this would entail further legal proceedings and associated costs. .


However, this structured system means that the CCRC, which is technically not a part of the judiciary, has the discretion on the reference of cases, and there is no independent avenue for criminal review. While it is possible to seek judicial review over the CCRC’s decision, the courts will be slow to intervene, as long as the view is not irrational.[30] This is problematic as, Article 93 of the Constitution vests judicial power in Singapore in the Courts. Having an independent body vested with similar if not the same power may be contrary to the tenets of Constitutional Supremacy and the Rule of Law in Singapore.


Ultimately, if the underlying reason for why the CCRC system was set up was due to a lack of avenues for victims of miscarriage of justice to make their case,[31] the question that needs to be answered is whether Singapore’s law of reopening provides an adequate avenue for said victims. A survey of case law suggests that there is no reason why a CCRC-like system should be adopted locally. In the recent case of Gobi a/l Avedian v Public Prosecutor [2020] SGCA 102, the SGCA was satisfied that the requirements for reopening were met and eventually the SGCA allowed the appeal primarily due to a change in the legal position in respect of the doctrine of wilful blindness that was effected by the Court in Adili Chibuike Ejike v Public Prosecutor [2019] SGCA 38. Similarly, in Ilechukwu Uchechukwu Chukwudi v Public Prosecutor [2020] SGCA 90, the SGCA found that the requirements for reopening were met and subsequently set aside the previous conviction of the applicant on a drug trafficking charge in the light of the fresh evidence, which arose out of exceptional circumstances, i.e., an opinion proffered by the Prosecution’s psychiatrist instead of the Applicant’s own appointed psychiatrist.[32]  These cases illustrate that while the bar has been set high for reopening concluded criminal appeals[33], it is not impossible to plead a successful case, and the system remains adequate for an applicant seeking to make a meritorious case following a concluded appeal. The present law of reopening in Singapore is one that delicately balances the need to protect the integrity of the judiciary and to prevent an abuse of process while ensuring that recourse is given to such applicants.

5. Conclusion

It has been said that “the test of a country’s justice is not the blunders which are sometimes made, but the zeal with which they are put right”.[34] While this article does not seek to allege that the court has made a “blunder”, it is suggested that the latter part of the quote is of relevance. This article is concerned with whether the present avenues made available to applicants who seek to reopen a concluded criminal matter is adequate – In reviewing the law as it stands and surveying the law in other jurisdictions, it is opined that it is indeed adequate.


Written by:
Annabel Kwek* (Research Director for The Recourse Initiative)
Kayleigh Lim* (Assistant Research Director for The Recourse Initiative)
Chua Kang Le (Assistant Research Director for The Recourse Initiative)

*All opinions or views expressed in this article are those of the authors and do not represent those of The Recourse Initiative or the National University of Singapore


References

[1] Kho Jabing at [48]

[2] See for e.g. Vignes s/o Mourthi v Public Prosecutor (No. 3) [2003] 4 SLR 518 at 521.

[3] Yong Vui Kong at [12]-[16]

[4] Kho Jabing at [77]

[5] Kho Jabing at [134]

[6] S394H of the CPC

[7] S394K of the CPC

[8] Mohammad Yusof bin Jantan [2021] SGHC 148 at [12]-[13]

[9] CPC s 394J(2)

[10] CPC s 394J(3)

[11] CPC s 394J(4)

[12] Kho Jabing at [

[13] CPC s 394(6)

[14] CPC s 394(5)

[15] CPC s 394J(7)

[16] CPC s394J(1)(b)

[17] Mohammad Yusof bin Jantan v Public Prosecutor [2021] SGHC 148 at [14].

[18] See for e.g., ibid.

[19] Richard Noble and David Schiff, “The Criminal Cases Review Commission: Reporting Success?”, Mar 2001, Vol 64, No. 2 280 at 282

[20] Ibid at 283

[21] Ibid at 281

[22] The Criminal Appeal Act 1995 (c 35) (UK) s 13

[23] R v Criminal Cases Review Commission, ex parte Pearson [1999] 3 All ER 498 at 518

[24] Supra note 16 s 17

[25] Ibid s 18A

[26] Ibid s 20

[27] Ministry of Justice, New Zealand, “Criminal Cases Review Commission”, <https://www.justice.govt.nz/justice-sector-policy/key-initiatives/criminal-cases-review-commission/>, accessed 31 Jul 2021

[28] Nino Bucci, “Forensic Examination: the case for a criminal review commission in Australia” 17 Jul 2021, <https://www.theguardian.com/law/2021/jul/18/forensic-examination-the-case-for-a-criminal-review-commission-in-australia>, accessed 31 Jul 2021

[29] Department of Justice, Canada, 31 Mar 2021 <https://www.canada.ca/en/department-justice/news/2021/03/minister-of-justice-and-attorney-general-of-canada-takes-important-step-toward-creation-of-an-independent-criminal-case-review-commission.html>, accessed 31 Jul 2021

[30] R (Charles) v Criminal Cases Review Commission [2017] EWHC 1219 (Admin) at [65]

[31] Supra note 17

[32] [2020] SGCA 90 at [182]-[184]

[33] Kho Jabing

[34] Quoted in “The Criminal Appellate System in Singapore” (1995) 16 Sing L. Rev 319.

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In light of the recent Penal Code reforms, s 300 on murder still remains virtually the same. However, over the years legal academics have raised riveting points as to how certain provisions of s 300, in particular s 300(c) and s 300(d), are in need of reform due to questions of unfairness and redundancy. This article will aim to shed some light on these arguments and hopefully give its readers a better understanding of potential inconsistencies in the Code.

S 300(c): Is it fair?

As per s 300(c), any voluntary act causing death is murder “if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.”

The mens reas requirement can be split up into two distinct elements:

  1. The accused intended to cause bodily injury. 
  2. The bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.


The court in Virsa Singh v State of Punjab [1958] SCR 1495 (“Virsa Singh”) added an additional requirement of nexus between the intended injury and the injury actually inflicted which was sufficient in the ordinary course of nature to cause death, which has been subsequently endorsed by Singapore’s courts. The court held at [1500] that there must be “an intention to inflict th[e] particular bodily injury” which caused death and that the “the injury of the type just described [must be] sufficient to cause death in the ordinary course of nature”. The court further added at [1501] that the second party of the enquiry “is purely objective and has nothing to do with the intention of the offender”.

According to the principles outlined in
Virsa Singh, as long as the bodily injury inflicted which caused the victim’s death is of the same type as the intended bodily injury and the bodily injury inflicted is sufficient to cause death in the ordinary course of nature, then the accused would be guilty of murder under s 300(c) even if he only intended lesser harm and did not contemplate the possibility of death. 

Such an objective approach to s 300(c) raises several issues, the first being that “punishment is thus imposed out of proportion to the degree of culpability of the offender”.
As Ramraj explains, given that s 300(c) “expressly directs” the courts to consider “only whether the actual injury was sufficient in the ordinary course of nature to cause death, it is difficult to imagine a situation in which the court would ever conclude that it was not, except on the most unusual facts”. This can lead to an outcome where “a person can be convicted of murder even if he or she intended to inflict only the most trivial of injuries if somehow the injury results in death”. In such a case, the punishment of life imprisonment or discretionary death sentence for s 300(c) seems unfairly excessive and disproportionate when compared to the accused’s established culpability. 

The second issue arising from s 300(c) is that criminal liability would now depend on “moral luck”, in the sense that “it depends on luck or chance and, in any event, on circumstances that are beyond that person’s control as a moral agent”.
In explaining his point on “moral luck”, Ramraj referred to the following two hypothetical scenarios:

  1. “X cuts the victim on his foot with the specific idea of avoiding the causing of a fatal injury. But an artery is severed and the medical evidence is that in the ordinary course of nature the injury would prove to be fatal.”
  2.  “Y cuts the victim on his foot with the specific idea of avoiding the causing of a fatal injury. The knife misses an artery by two millimetres and the victim suffers but a minor injury.” 

Assuming that neither X nor Y “has any special knowledge of human anatomy, it is purely a matter of chance that X happens to hit an artery but Y does not”. However, X and Y face “profoundly different penal consequences”, whereas “Y faces a charge of voluntarily causing hurt” and a maximum of imprisonment for three years, X faces the punishment of life imprisonment or discretionary death sentence.  As Rajah put it, the fact that this difference in legal outcomes is a result of something as fickle and unpredictable as moral luck, “is manifestly unfair and inconsistent with a criminal justice system that has any concern for the moral culpability of the offender”.

S 300(d): Is it redundant?

As per s 300(d), any voluntary act causing death is murder “if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.”

The illustration of s 300(d) provided in the Penal Code is as follows; “A, without any excuse, fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.” A closer examination of this classic illustration suggests that cases intended by the Penal Code to fall under s 300(d) can actually be subsumed under s 300(a) instead, making s 300(d) somewhat redundant. 

As per s 300(a),  any voluntary act causing death is murder “if the act by which the death is caused is done with the intention of causing death”. Intention can be divided into direct intent and oblique intent. When first introduced in academic literature, oblique intent was defined as “a side effect that you accept as an inevitable or certain accompaniment of your direct intent”. This idea of virtual certainty of death has been accepted as a subset of intention in Woollin [1999] 1 AC 82 at [96], and a similar test was approved in Ong Beng Leong v PP [2005] 1 SLR(R) 766 at [24], in the context of the Prevention of Corruption Act. Oblique intent is now officially recognised as a definition of intention under the Penal Code in s 26C(2)(b), as of the recent Penal Code reform in 10 February 2020.

Turning back to illustration (d), when A fired a cannon into a crowd his direct intent may not have been to kill anyone. However as long as it can be proven on the facts that he was virtually certain that death would be a side-effect of firing the cannon, he is guilty of a crime under s 300(a). Thus, s 300(d) becomes redundant as cases of foreseen but not intended risks of death intended by the Code’s drafters to fall under s 300(d) can now be dealt with under s 300(a).


Conclusion

As it has been argued, the Code is not without its flaws. There is always room for improvement and we have our legal academics to thank for helping to give their input. It is our hope that future amendments to the Code will continue to strive for consistency and fairness.

Ashna Khatri


 


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An ongoing spate of sexual or violent offences committed by university students have put Singapore’s judicial system under the spotlight. Uncharacteristically vocal in their displeasure with the criminal sentencing and judicial reasoning for these cases, the frequent invocation of the “bright” or “promising future” mitigation plea has left the community angered. 

Singapore’s criminal justice system has undergone an evolution of sorts. From our mandatory death penalty laws taking on a discretionary nature to amendments to the Misuse of Drugs Act emphasising the rehabilitation of recalcitrant offenders, we are seeing long-standing criminal justice principles such as retribution and deterrence being increasingly counterpoised by rehabilitation. It is against this backdrop that we must assess the defensibility of the “promising future” mitigation plea.


Criminal justice, mitigation pleas and sentencing in Singapore


Singapore’s criminal law is largely statutory in nature, where most offences are codified in the Penal Code and other statutes such as the Misuse of Drugs Act and Vandalism Act. Following an offender’s conviction, the penalties imposed could range from a fine, imprisonment, caning, reformative/corrective training or community service, or a combination thereof. 

Though judges are statutorily bound by the upper and lower limits stipulated in the relevant Acts and Codes along with guidance by the reasoning and sentencing benchmarks laid out by past judges, they do possess some latitude and discretion whilst passing sentences. Sentences may be lengthened or lightened by aggravating and mitigating factors respectively, with the latter being enclosed within defendants’ mitigation pleas. Mitigation pleas are regularly heard in most jurisdictions and aid the law in striking an equilibrium between rehabilitating the perpetrator with the eventual goal of re-integrating him back into society and punishing him as a deterrence from committing crime.


An analysis of the “promising future” mitigation plea

Despite only recently making headlines, our research has revealed that the “promising future” plea has in fact been heard since 1995. This strategy attempts to highlight a defendant’s favourable future prospects to persuade the court to exercise leniency in its sentencing. Contrary to popular belief, cases seeing the invocation of “promising future” are not limited to sexual offences; they run the gamut, from extortion and forgery to negligence and drug consumption. 

The table below showcases some instances where the “promising future” plea was invoked:



At this juncture, it is apposite to note that promising future pleas are sometimes advanced alongside other mitigating factors and may work in tandem to produce the observed effect (viz. more lenient sentences). Therefore, this analysis does not purport to be an empirical inquiry into how such pleas quantitatively affects courts’ sentencing decisions; it is instead merely illustrative of what a “promising future” broadly entails in the eyes of the law, as evinced by case law. It is also important to note that promising future pleas seem to fail more often than they succeed, though their efficacy is invariably linked to the severity and nature of the offence committed. 

Across all cases, it appears that courts perceive a defendant’s academic performance to be indicative of his or her “promising future” (or lack thereof). Such accused are often in the course of furthering their tertiary studies and have attained sufficiently good results. For example, particular attention was accorded to the defendant’s “excellent academic and extra-curricular record” in Tok Kok How, the “good grades” that the defendant was projected to achieve upon graduation in Chong Pui San, and the scholar status of the defendant in Nickson Guay Seng Tiong.

Most recently and controversially, the Magistrates’ Court in Terence Siow Kai Yuan seemingly accepted the defendant’s submission that, inter alia, his “[g]ood academic performance in school highlights his potential to excel in life” (though the High Court subsequently rejected this contention). This may suggest a conflation of past and projected academic performance with the degree of promise in one’s future; which is further buttressed by the holding in Anas bin Abdul Hamid and Teng Zhi Xiang, the only two cases where promising future was not found. In Anas bin Abdul Hamid, the promising future plea was rejected as the accused was “not a student with an excellent academic record”. He had only studied up until Secondary 2 and was working as a “cleaner” at the time of the offence. In Teng Zhi Xiang, the accused had only enrolled as a student in the Orchard School of Arts & Commerce recently, and did not possess “an exceptionally good academic record that warranted the court to exercise its discretion to call for a pre-sentence report”.

Courts have also placed some emphasis on the defendant’s chosen course of studies and desired career. They noted that the defendants in Lim Pei Ni Charissa and Lai Jenn Wuu were respectively pursuing courses in “Law and the Arts” and “Medicine”, and that the defendant in Nickson Guay Seng Tiong was an “entrepreneur” and “scholarship holder”. Contrasted to their remarks about the defendant in Anas bin Abdul Hamid, this may be suggestive of an elitist or technocratic approach towards the finding of a “promising future”.

However, this assertion should retrospectively be repudiated, as the promising future plea was recognised for most defendants (though it was still pleaded with varying degrees of success) who were enrolled in a rather diverse range of courses and institutions. Amongst these were the National University of Singapore, LASALLE College of the Arts, the Singapore Institute of Commerce, the University of Western Australia and “a university in the People’s Republic of China”. Therefore, it would be erroneous to accuse courts of only finding “promising futures” for certain defendants pursuing certain academic courses at certain tertiary institutions – as netizens have been wont to do as of late – as the case law simply does not support such a claim. 

 

Worryingly, there may be an even more fundamental and insidious assumption at play here. Though the court in Tok Kok How did allude to defendant’s non-academic record by way of his extracurriculars and distinction in National Service, it is indisputable that, at least up until the High Court’s judgement in Terence Siow Kai Yuan, it is generally academic performance that occupies the forefront of the court’s mind when they are tasked with ascertaining if a “promising future” exists. This dangerously conflates one’s academic potential with the potential in their character, with the latter forming the “true” and more appropriate justification for a lightened sentence. While intelligence, education level and academic performance may serve as rough proxies for gauging “promise” and potential, it is fallacious to regard these factors as indicative of an offender’s remorse, propensity for reform, and/or deservingness of a lighter sentence. The correlation between one’s academic ability and “promising future” (or lack thereof) is tenuous at best.


Recent controversy

As previously alluded to, there has been a great deal of controversy and frustration with regard to the pleading of “promising future”. The recent cases of Yin Zi Qin and Terence Siow Kai Yuan Siow speak volumes about the general public sentiment that guilty parties invoking this defense have allegedly escaped with a slap of the wrist. For example, at least 133000 people endorsed a petition denying favourable sentences for “educated” sex offenders while 21000 people endorsed a petition requesting for Yin Zi Qin to receive a harsher punishment. For Terence Siow Kai Yuan, the Law Minister himself expressed his surprise at the light sentence imposed by the District Court judge. Even the PAP Women’s Wing, part of the ruling party that has been known not to comment on rulings in court cases, disseminated a statement stating that they were “dismayed” by the light sentence given to Yin Zi Qin.

In a time where perpetrators of sexual crimes are increasingly and rightfully being held accountable, spurred by the #MeToo movement that brought sexual harassment and assault crimes to the fore, it is unsurprising that there is growing discontent that the “promising future” mitigation plea seemingly allows offenders to evade liability. However, our analysis seeks to dispel some of these misconceptions. 

Firstly, it is undeniable that the first-instance sentences of both cases (probation and community service for Siow who had outraged a victim’s modesty, and detention and community service for Yin who had voluntarily caused hurt by strangling a victim) were manifestly inadequate. Upon appeal, the High Court judges had conceded as much, prompting a revision in sentencing. The true issue is whether having a “promising future” or good academic performance (as courts ostensibly treat the two as interchangeable) had caused or influenced the respective Magistrates’ Court and District Court judges to pass excessively lenient sentences – this would be problematic as it suggest that victims would receive different forms/amounts of justice depending on how academically-inclined their perpetrators are. However, there is no conclusive evidence to suggest this has happened.

When heard before the Magistrates’ Court, the judge did equate Siow’s strong academic record with his “potential to excel” and propensity to reform. However, she also outlined the following factors that warranted rehabilitative sentencing for Siow: 

  1. The positive reports from his school and NS supervisors demonstrated that he could behave with proper guidance
  2. The offence was ad-hoc in nature
  3. He was impaired when he committed the offence
  4. He pled guilty at earliest time and was cooperative during investigations
  5. He showed remorsefulness
  6. He was aware that he had a problem, and demonstrated a desire and willingness to change


This suggests that even though judges do assess the degree of promise or potential in one’s future by their academic performance, they also consider many other mitigating factors (albeit not under the term “promising future”). It is unlikely that any single factor is determinative of the eventual sentence. Therefore, it would not be entirely accurate to attribute Siow’s relatively lenient first-instance sentence solely to his academic record or “promising future” mitigating factor – it is more probably that the judge took all the relevant factors into account and exercised her discretion to arrive at the final sentence.

Upon appeal, Terence Siow Kai Yuan Siow was heard before the High Court, where Menon CJ directly addressed the controversy regarding the “promising future” plea. He highlighted Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300 where Steven Chong JA opined:

[T]he quest for academic qualifications is merely one indicator of rehabilitative capacity. Although it usually helps that young offenders are good students as it stands them in better stead and fortifies their chances of reform… the issue is not ultimately whether the offender is academically promising. Rather, the relevant question is whether he has demonstrated a positive desire to change and whether there were conditions in his life that were conducive to helping him turn over a new leaf. In this regard…, scholastic mediocrity or the fact that the offender is no longer in school should not be reasons by themselves to conclude that the offender is incapable of rehabilitation. Other avenues, such as vocational training or employment, would also be pertinent in assessing the offender’s prospect for reform.  

 

Here, Menon CJ is ostensibly cautioning judges against placing excessive emphasis on the mitigating nature of good academics. To reconcile the different approaches that he acknowledged that different judges were utilizing, Menon CJ outlined a new multifactorial approach to determine the rehabilitative prospects of an individual that encompasses the previously used approaches. Under his three-limbed framework, courts should sequentially determine whether (1) the offender has demonstrated a positive desire to change, (2) there are conditions aiding the offender to turn over a new leaf and (3) there are risk factors that warrant the court to not find a high propensity for reform. Therefore, an offender’s scholastic evidence would be “irrelevant, unless a link can be drawn between the offender’s scholastic excellence and the offender’s rehabilitative capacity”. 

Applying this framework to Terence Siow Kai Yuan Siow, Menon CJ considered, inter alia, whether Siow was truly remorseful, whether he had undertaken measures to curb his pornography consumption, and whether he would receive adequate familial support. He did not consider or mention Siow’s academic record.  

On re-examination, while public perception often elevates “promising future” to be the dispositive and make-or-break factor in lenient sentencing, the first instance judge’s consideration of other mitigating factors and Menon CJ’s proposed multifactorial approach in Terence Siow Kai Yuan Siow both tacitly acknowledge that academic results are not the sole consideration in assessing whether rehabilitation is an appropriate sentence for an offender. The public outrage that sexual offenders escape with a slap on the wrist as a result of having good grades and a “promising future” may have been overblown. 


Issues


As suggested previously, the High Court’s holding in Terence Siow Kai Yuan Siow may redirect and reorientate lower courts to more holistically assess whether a defendant truly possesses a “promising future” as opposed to a mere “promising academic future”. Nevertheless, the method adopted by Menon CJ also raises further questions: 

  1. Should “promising future”/good academics be a risk factor and not a mitigating factor?

Menon CJ viewed strong academics as an irrelevant consideration unless they evince an offender’s rehabilitative capacity. However, could there be instances where strong academics point against one’s propensity to reform, or constitute aggravating or risk factors instead? In foreign jurisdictions such as several US states, offenders’ high intelligence levels are often looked upon neutrally or even unfavourably as they arguably increase an offender’s moral blameworthiness. For example, the Supreme Court of Arizona in State v. Henry, 944 P.2d 57 (Ariz. 1997) saw “no reason to reward an individual who uses his education and intelligence in duplicitous ways.”

  1. Should sexual offences fall under the ambit of offences where rehabilitation should be considered as a sentencing principle?

There have been calls to completely disallow rehabilitative sentences for offences of a sexual nature. However, this is extremely unlikely as courts have long abstained from imposing blanket rules on any kind of offence. This is because the facts surrounding each offence differs from another with regards to their nature, surrounding circumstances or antecedent events. When determining whether rehabilitation is suitable for a particular offender, courts assess offender-specific factors as well as offence-specific factors, including the mens rea, actus reus and general egregiousness of the offence; some offenders may have simply been less culpable and blameworthy so as to warrant a rehabilitative sentence. Therefore, courts will definitively retain rehabilitation as a possible sentence for sexual offenders as judges’ powers of discretion enable them to match the severity of the sentence to that of the offence.


The way forward

In conclusion, it is likely that an offender’s “promising future” or strong academics will play a far less significant role in future sentencing decisions, which may, in turn, reduce the chances of sentences passed being inadequate. However, in the learned words of the former CJ Chan, “sentencing is not an exact science, and is essentially a matter of discretion and judgment call”. There will inevitably be sentences perceived to be overly lenient, and sentences perceived to be overly punitive. 

As civilians, how should we best respond to perceived injustice when it arises? In light of recent events, there is a need to stress that internet vigilantism such as doxxing and harassment often lead to counterproductive outcomes. Instead, more effective methods of response may include personally reading the judgements of allegedly unjust cases to glean a better understanding of the judicial reasoning behind the sentence passed, engaging in reasonable and responsible modes of civic participation such as writing in to MPs and the Straits Times forum, as well as holding constructive discussions with those around us. 


Benjamin Goh and Tan Ying Qian
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