Introduction

In a scenario where one is entrusted with property during his work, he may become tempted to use the property for his own gain instead. This is especially true for people working in positions of power, such as a director of a company,¹ a lawyer managing funds for his client,² or a public servant entrusted with taxpayer’s money. This is the behaviour that the offence of Criminal Breach of Trust (CBT) targets. As stated in Lam Leng Hung,³ CBT targets the accused’s betrayal of trust after he has been entrusted with property and he uses the property for his own gain.

The recent spate of individuals in positions of power being arrested for committing CBT have rocked the trust of the public. Between 2017 to 2021, around 18,700 instances of white-collar crimes (such as CBT) occurred with a total subject matter value of around $4.49 billion.⁴ These recent trends serve as a strong reminder of the need for accountability, transparency, and professionalism for those in positions of power. Where the public relies on one’s trade or title as an indicator of trustworthiness and integrity, it is critical for society that these functions are performed honestly.⁵

This article explains the offence of CBT, the policy reasons underlying CBT, and the importance of preventing CBT in the way forward.

1. What is CBT?

CBT is an offence in the Penal Code which is defined in s 405. Breaking down s 405 into its constituent elements, CBT will read as follows:

(a) The accused was entrusted with property or had dominion over the property.
(b) The accused used the entrusted property in violation of a direction of law, or an express or implied contract which prescribed the mode in which such trust was supposed to be discharged, or intentionally causes any other person to do so.
(c) The accused was dishonest in doing the actions described in (b).

s 405 also illustrates certain situations where CBT is committed. For example, the executor of a will who misappropriates the property of the deceased (illustration a), a warehouse owner who temporarily holds onto furniture for his client and sells the furniture (illustration b), or an investment agent who receives money from his client intended for investment and the money was used for the agent’s own purposes (illustration c) would all have committed CBT.

Having outlined the 3 elements of CBT, their legal meaning will be further explained in turn.

1.1. Element (a): Is complete control over the property required?

The essence of CBT targets the betrayal of trust committed by someone after he has been entrusted with property.⁶ Therefore, it is not necessary for there to be complete control over the property for the property to be “entrusted” to the individual.

This was clarified in Lam Leng Hung, where the issue was whether the group of accused making up a minority of a managerial board of the organisation could be said to possess dominion over the funds of the organisation. The group of accused in that case argued that they lacked control given their minority position, as the plans they devised for the alleged misappropriation had to be approved by other innocent directors on the board before implementation. However, the court rejected this argument, stating that the element of dominion is satisfied even where the dominion is concurrently exercised by other individuals.⁷ Where a group of persons has dominion over the property, each individual member of the group has the requisite control over the property for this element of dominion to be satisfied. The other innocent directors may have facilitated the CBT, but this does not absolve the offenders of liability. Further, allowing the accused to rely on the other directors’ innocence to absolve themselves of criminal liability also runs counter to the purpose of CBT offences which is to punish the betrayal of the trust bestowed upon the individual.

1.2. Element (b): What is the direction of the law that must be violated?

For CBT to occur, there must be an entrustment of property with a specific instruction of how that property is to be used. The accused commits CBT if he uses the property in a way different from that instruction. This instruction may be contained in a contract between the two parties. Alternatively, this instruction can be provided for by a direction of law, which is to say in accordance with a statute. Therefore, much will turn on what a statutory provision expressly or impliedly prohibits (or allows).

For instance, in Cheam Tat Pang,⁸ the 2 accused were directors of a company who used the company’s funds to purchase the shares of a Hong Kong company (LMP). The company’s board of directors approved the purchase of the shares, but the 2 accused effected the purchase through the instrument of APL, another company that the 2 accused had an interest in. This allowed them to make secret profits in their capacity as shareholders of APL. The Prosecution argued that the two violated a direction of law, specifically s 157(1) of the Companies Act, which stated directors of a company must exercise reasonable diligence and honesty in the discharge of their duties. However, this argument failed as it was held that s 157(1) of the Companies Act did not state any specific way the trust was to be discharged. There must be a degree of specificity in how the accused ought to have handled the property entrusted to him; vague directives of “honesty” and “reasonable diligence” are not specific enough. 

In contrast, the direction of law relied upon in Tong Keng Wah⁹ was sufficiently specific to have imposed a prohibition against the impugned behavior. In Tong Keng Wah, the accused was a police inspector who committed CBT by failing to return his service revolver and 12 rounds of ammunition after being dismissed from the force. The Prosecution argued that he violated s 24(1) of the Police Force Act which specifically stated every police officer who leaves the force must return his arms and his ammunition. As noted by the court in Cheam Tat Pang,¹⁰ it was not a general directive to maintain good order and discipline like s 157(1) of the Companies’ Act.

1.3. Element (c): What makes one dishonest in the eyes of the law?

The legal meaning of “dishonesty” was clarified in Lam Leng Hung¹¹ to refer to an individual doing an act with the intention to obtain something he was not legally entitled to, or to deprive someone of property the person was legally entitled to. In other words, “dishonesty” is concerned with legal entitlement to the property.

Since legal entitlement is the linchpin, a critical consideration is whether the accused knew the act he did (i.e. the alleged misappropriation) was unauthorised.¹² Thus, where it can be shown that the accused genuinely believed the act was authorised, there is no dishonest intention, and this element is not satisfied.

Intention must be separated from the motive of the accused. As noted by the court in Lam Leng Hung,¹³ the reason why the accused did the act is not relevant to what he thought or knew at the time he committed the crime. It is possible for an accused to have benign or even good motives, but still have dishonest intent to misappropriate. This position is also taken in other non-CBT criminal cases, and is justified as allowing private motive to serve as a defence would essentially “allow any man to substitute for law his own notions of right would be in effect to subvert the law.”¹⁴

1.4. Conclusion on the elements of CBT

The essence of CBT to punish the betrayal of trust by those entrusted with property. Therefore, there must first be an entrustment of property to the accused with an accompanying directive of how exactly he was to use the property. The accused must have violated the directive and acquired property he was not legally entitled to possess.

2. Why CBT is a big issue for society

CBT committed by individuals in positions of power threaten to undermine the very foundations of society by eroding the trust of the public. While CBT exists on a “sliding scale of offences”,¹⁵ the most severe offence for CBT under s 409 is committed by those performing public functions or those in esteemed occupations that command the trust of the public.

Turning to the statutory framework of CBT, it is clear that Parliament intended for CBT to have differing levels of severity depending on the class of persons that commits CBT. At the lowest level of severity, CBT committed by individuals hired on an ad-hoc basis attracts a maximum sentence of 7 years’ imprisonment, as stipulated by s 406. Next is s 407, which covers CBT done by someone entrusted with property for transportation or storage, which carries a maximum sentence of 15 years. On the same level there is s 408 which is CBT done by employees, which also has a maximum sentence of 15 years. Finally at the highest end of the spectrum, there is s 409 that targets specific classes of people such as public servants, attorneys, directors, and bankers where CBT would be punishable with a maximum of 20 years’ imprisonment. The common thread in all the classes of people in s 409 is that they are all esteemed occupations that command the trust and respect of the public, so those who choose to enrich themselves by disregarding the faith the public has in them would rightfully deserve a higher sentence.

One would not have to look further than the case of Tan Cheng Yew¹⁶ for the court’s view on CBT committed classes of people specified in s 409. In Tan Cheng Yew, the accused was a lawyer who pocketed his client’s funds to pay off debts he accrued from gambling. He was entrusted with $1.5 million by his client intended to be loaned to a church, which he then converted to his own use. During trial, the accused admitted during cross-examination that he never intended to give the $1.5 million to the church but intended to use the money to pay off his debts.¹⁷ He was also entrusted with $1.9 million from the sales proceeds of the shares owned by his client which he also used to pay off his gambling debts. The accused was found guilty and disbarred from being a lawyer, being sentenced with 13 years imprisonment for his CBT, amidst other charges.

The High Court in Tan Cheng Yew ¹⁸ explained why lawyers such as Tan Cheng Yew need to be punished with a heavier sentence.

“In my view, the mischief that s 409 targets is the commission of CBT by persons who perform certain trusted trades, when they act in the way of their business… Where it is normal for the public to rely on a person’s trade as a mark of his trustworthiness and integrity, and where such trust facilitates commercial transactions, it is important that such transactions are above board. A commission of CBT by a person in the performance of his trade would shake the confidence of the public in those trades and impede the ability of persons in such trades to serve the public. A breach of trust in such circumstances “may have severe … public repercussions” (see Butterworth’s commentary at p 621). Therefore, s 409 provides that CBT committed in the capacity of a public servant or in the way of business of a banker, a merchant, a factor, a broker, an attorney or an agent, would be punished more severely than CBT committed by persons who are trusted on an ad hoc basis under s 406.”

The court’s pronouncement serves as a grave warning to those in esteemed professions not to abuse the trust the public has in them, that the power they possess comes with an equally steep responsibility. The current trend of those in positions of power abusing their power is worrying, such as the Maybank Service Manager who misappropriated more than $1.4 million from a workplace safe,¹⁹ police officers who pocketed restitution money from suspects,²⁰ or a religious teacher who pocketed almost $61,000 from victims.²¹ There is a need to curb CBT in these professions to prevent the reputation of these occupations from being tarnished from a few bad eggs. It is hoped that those in positions of power understand the faith society has in them, and not abuse the trust they command.

3. Conclusion

It is undeniable that the legal system has been effective in arresting those who committed CBT. However, the recent string of CBT committed by those who command the trust of the public struck at the very heart of the integrity of their respective professions. What may be needed is a stern reminder towards those in positions of power that they command the trust of the public, and that the public does not take a betrayal of that trust lightly. 

Written by: Boh Cheng Kang

*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.

[1] Public Prosecutor v Lam Leng Hung and other appeals [2017] 4 SLR 474

[2] Public Prosecutor v Tan Cheng Yew and another appeal [2012] 1 SLR 1095

[3] Public Prosecutor v Lam Leng Hung and other appeals [2017] 4 SLR 474 at [71]

[4] K Shanmugam. 03 Oct 2020. Written Reply to Parliamentary Question on Number of White Collar Crime Cases Investigated by Police Land Divisions in the Past Five Years. Retrieved December 2023, from https://www.mha.gov.sg/mediaroom/parliamentary/written-reply-to-pq-on-number-of-white-collar-crime-cases-investigated-by-police-land-divisions-in-the-past-five-years/

[5] Public Prosecutor v Tan Cheng Yew and another appeal [2012] 1 SLR 1095 at [103]

[6] Supra, n 3.

[7] Supra, n 1 at [74] and [87]

[8] Cheam Tat Pang and another v Public Prosecutor [1996] 1 SLR(R) 161

[9] Tong Keng Wah v Public Prosecutor [1977-1978] SLR(R) 578; [1978-1979] SLR 404

[10] Supra, n 12 at [22]

[11] Supra, n 1 at [177]

[12] Tan Tze Chye v Public Prosecutor [1997] 1 SLR(R) 876 at [49]

[13] Supra, n 1 at [180].

[14] Mohammed Ali bin Johari v Public Prosecutor [2008] 4 SLR(R) 1058 at [102]

[15] Supra, n 2 at [102]

[17] Supra, n 2 at [129].

[18] Supra, n 2 at [103].

[19] Shaffiq Alkhatib. 28 Sept 2023. Jail for ex-Maybank employee who took more than $1.4m from workplace safe. Retrieved Dec 2023, from https://www.straitstimes.com/singapore/courts-crime/jail-for-ex-maybank-employee-who-took-more-than-14m-from-workplace-safe

[20] Shaffiq Alkhatib, Aqil Hamzah. 12 Aug 2023. 2 cops charged after they allegedly took restitution money from suspects. Retrieved Dec 2023, from https://www.straitstimes.com/singapore/two-police-officers-charged-with-al

legedly-taking-money-from-suspects-over-several-years

[21] Shaffiq Alkhatib. 26 Sept 2023. Jail for ex-religious teacher who made off with nearly $61k from victims, including pilgrims. Retrieved Dec 2023, from https://www.straitstimes.com/singapore/courts-crime/jail-for-ex-religious-teacher-who-made-off-with-nearly-61k-from-victims-including-pilgrims

Ms Monica Baey had sparked a national debate after bringing to light her experiences with sexual harassment on campus. She was a victim of voyeurism, where her harasser deliberately and wilfully intruded upon her privacy when he secretly filmed her while she was showering. Voyeurism, an act that has recently gained traction in the local discourse about sexual misconduct since the Monica Baey exposé, will now be punishable under section 377BB of the Penal Code.

Changes to statutes

To better combat offences relating to voyeurism, the new section 377BB was introduced with effect from 1 January 2020, which establishes a specific offence for voyeurism. This provision was enacted due to the recent rise in voyeurism cases, as well as the increasing use of technology to commit such offences.

s 377BB’s gender neutral language recognises the reality that any individual, regardless of their gender, can potentially be a victim of voyeurism. To this end, the word “woman” used in s 509 has been replaced with “person” in s 377BB.

1. At its most basic level, s 377 BB(1) makes it an offence for a person (A) to observe another person (B) doing a private act without B’s consent (and with the knowledge or belief that B does not consent).
2. The other subsections ss 377BB(2) and (3) gradually build on this by targeting voyeurism which is achieved either through operating equipment to observe person (B) or in situations where person (A) intentionally or knowingly records person (B).
3. ss 377BB(4) and (5) deal with the aggravated situation where person (A) operates equipment to observe or record (B)’s private parts.

Changes to sentencing

The maximum sentence that can be imposed on an individual who is found guilty under s 377BB is 2 years’ imprisonment. This is double the previous 1 year maximum jail term for the offence of insulting modesty under s 509. In addition, a fine or caning, or any such combination of all three punishments can also be imposed. Where the offence is committed against a person below 14 years old, imprisonment will be made mandatory. The prevalence of voyeurism cases imposes the need for a higher punishment to deter the proliferation of voyeuristic recordings.

Previously, voyeurism was dealt under s 509 ‘Insulting the Modesty of a Woman’ in the Penal Code. This section provided as such:

“Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both.”

While there were only 8 charges under s 509 between 2001 and 2008, the number of charges surged between 2008 to 2021, reaching a whopping total of 2826 charges. The increase in prosecutions can most likely be attributed to the advancements in technology. However, there was no specific provision to deal with this contemporary problem of voyeurism through technology, leading to s 509 being used instead. For instance, in PP v Chandran s/o Natesan [2013] SGDC 33, the Defendant was charged under s 509 for the offence of uttering words intended to insult the modesty of a woman. Similarly, in PP v Tan Huat Heng [2012] SGMC 1, the Defendant who was found guilty of the more severe offence of using his camera phone to take “up-skirt” videos of several women, was also charged under s 509.

Furthermore, since voyeurism was dealt under ‘Insulting the Modesty of a Woman’, the accused could not be charged under s 509 if the victim was male. Instead, the accused would be charged with another offence. While male victims of voyeurism are rare, they still exist. For example, Mr Koh Kah Hock had filmed men showering in a clubhouse without their knowledge and kept their obscene videos on his laptop. For his acts, since Mr Koh could not be charged under s 509, he was merely charged with making obscene films.

The key problems of s 509 can be summarised as follows:

1. As a repurposed piece of legislation, it was not adequately equipped to deal with voyeurism. Since the offence was gender-specific, voyeuristic videos taken of men without their consent could not be prosecuted under section 509 and had to be dealt with potentially under the films act, which led to different sentencing outcomes.
2. It does not contemplate the myriad of ways voyeurism could be committed. Hence, all offenders were subjected to the same range of punishments and the Courts were left to rely on aggravating factors to distinguish between varying degrees of culpability.

In formulating its recommendations on the voyeurism offence, the Penal Code Review Committee studied other countries’ approaches, namely England, Wales, Scotland, Canada, New Zealand, and Australia. This comparative approach to legislating is crucial to bring the law in line with contemporary social values and norms – for example, Ms Monica Baey revealed that she decided to speak out when a friend from an American university told her that the offender would have faced much harsher punishment in the USA.

The PCRC also considered the increasing ubiquity of image-capturing devices, which amplifies the potential harm arising from voyeurism. Technological improvements would mean that such crimes were no longer being contained between the victim and perpetrator, since the potential for mass dissemination is much higher. Technology has also caused the proliferation of sexual violence in cyberspace, and many people must deal with unwanted sexual massages and calls, non-consensual sharing of intimate images, voyeurism, harassment and objectification. Institutional processes must accordingly keep up with the times. The new offence of voyeurism reflects the gravity of the offence and has doubled the maximum imprisonment term from one to two years and provided for the possibility of caning as well.

Mitigating and aggravating factors regarding sentencing

With regards to sentencing under the new s 377BB, there are various aggravating and mitigating factors that can affect the harshness of the sentence handed out. The table below illustrates the types of factors and how they affect sentencing.

How have the changes affected sentencing

While the changes made to the Penal Code are still relatively new, there is a recent case that has applied the updated sentencing principles.

In PP v Sean Lee Yang, the accused had placed a spycam with an SD card in a gym, with the intention of recording men urinating without their consent. By installing a piece of equipment with the intention of enabling himself to commit an offence under s 377BB (3) of the Penal Code, the offender has committed an offence under s 377BB (6), punishable under section 377BB (7).

The prosecution highlighted the following aggravating factors for the offence under s 377BB(6):

1. The offender’s great degree of foresight and premeditation, since he had purchased the spycam 2 weeks prior and experimented with it prior to his offence.
2. The captured recordings could be repeatedly re-viewed by the offender, or even disseminated to third parties.
3. The offence was the last of a course of conduct that took place over one to two weeks involving multiple victims involved who were not identified as the recorded videos were not recovered.
4. The use of miniaturised, disguised, or hidden cameras to record films of unsuspecting men in public/private toilets.

The defence counsel highlighted the following mitigation factors to urge the court to place the offender on probation or under an MTO.

1. The offender’s previous sexual assault and PTSD.
2. His ongoing treatment in IMH.

Taking into consideration that acts of voyeurism are on an upward trend in Singapore, as well as legislative intent for s 377BB to impose higher penalties to deal with such offences, the court held that the principle of sentencing in this case is predominantly that of deterrence. The culpability of the offender is moderately high, as he had purchased a spy camera that was disguised as an innocuous clothing hook, designed to be inconspicuous and ordinary looking. Furthermore, the offender had bought the item from Lazada, which suggests that such devices are easily accessible to the public. A strong deterrent message needed to be sent out to turn away like-minded persons from being tempted to embark on such a course.

With regards to probation, the court did not find that the offender has demonstrated “an extremely strong propensity for reform”, and thus found that rehabilitation has clearly not displaced deterrence as the primary sentencing consideration. With regards to an MTO, the court found that the offender had clearly acted with deliberation and a composed mind. He did not panic and own up immediately to his wrongdoing but instead was able to process through a plan to try to get away scot-free. Hence, the offender was not suffering from any mental disorder of a kind that could possibly satisfy the criteria for the imposition of an MTO.

Under s 377BB (6), the offender was sentenced to 2 months’ imprisonment, giving a global sentence of 6 months’ imprisonment.

Conclusion

In closing, this article has introduced the offence of voyeurism and highlighted key changes in the law, using a recent case to illustrate the updated sentencing principles for voyeurism cases. It is hoped that these new provisions will curb the uptick in voyeuruism and deter potential offences.  


Written by: Nancy Xu

*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.

References

https://www.pdlegal.com.sg/changes-to-the-sentencing-framework-for-voyeurism-offences-in-singapore/ 

https://www.straitstimes.com/singapore/timeline-of-key-changes-to-the-law-to-protect-victims-of-sexual-and-hurt-offences

https://sprs.parl.gov.sg/search/sprs3topic?reportid=written-answer-na-4520

https://sprs.parl.gov.sg/search/sprs3topic?reportid=oral-answer-1965

https://sprs.parl.gov.sg/search/sprs3topic?reportid=motion-1738

https://sprs.parl.gov.sg/search/sprs3topic?reportid=bill-523

https://singaporelegaladvice.com/law-articles/crime-voyeurism-singapore-penalties-defences/

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

18. 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


*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.

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


*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.

[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 1^st 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.

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


*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.

[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)

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


*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.

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

*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.

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>

At the point when this article was written, less than two months into 2016, two cases of maid abuse[1] had already been reported in the local news. In one case, a 75-year-old retiree suffering from schizophrenia and depression was found by the court to have poured bleach and slapped a Foreign Domestic Worker (“FDW”). During the 10 months working for the accused, the FDW lost 10 kg and eventually suffered serious injuries from an attempt to escape her abusive employer by climbing out of the window of the condominium apartment she was working in[2]. This article aims to identify and clarify some commonly held misconceptions amongst Singaporeans on the subject of maid abuse in relation to the law. Firstly, this article will challenge the misconception that “maid abuse” contemplates only physical abuse. Secondly, it will explore the defence of mental illness and explore some cases where it was successfully or unsuccessfully raised by the accused. Finally, it will tackle the tremendously flawed idea that FDWs are unable to do anything to help themselves when faced with abuse, and show how FDWs can in fact be instrumental in the successful conviction of abusive employers.

Context

Reporter Mr Lee Han Shih, in an article for the Business Times, very aptly observed that “[m]any maids come from a background which carries with it a natural fear that the police are working for the rich, and are reluctant to seek their protection even when the opportunity presents itself”[3]. This illustration is but one of many that show how misinformation or misunderstanding of the law and those who enforce it unwittingly allows for abhorrent abuse to carry on undetected, and obstructs the law from achieving its intended purpose of protecting the vulnerable in society. In recent years, there has been an upward trend of cases of maid abuse reported, with 1,330 cases in 2012 rising to 1,404 in 2014[4]. There is an urgent need to arrest this disturbing trend, and this article humbly hopes to contribute to the solution by addressing misinformation in the hopes that employers would better understand the long arm of the law, and FDWs would also understand how they can be better equipped to be part of the solution to their own plights.

Misconception 1: Emotional abuse is not maid abuse

It is a common wrongly held belief that emotional abuse of FDWs is not against the law. In reality, emotional abuse is often central to the sentencing of abusive employers found guilty by the law. In the recent case of PP v Rosman bin Anwar and another[5] (“Rosman bin Anwar”), the High Court allowed an appeal by the public prosecutor that a sentence of 2 weeks for an abusive employer was “manifestly inadequate” given the extent of emotional suffering by the FDW. As a result, the sentence was increased threefold to 6 weeks. The Court of Appeal in the case of ADF v Public Prosecutor and another[6] similarly recognized the importance of emotional abuse to the severity of the sentence meted out. In this case, an employer used his identity as a police officer to intimidate the FDW in his employment and subjected her to dehumanizing practices such as keeping a notebook secured around her neck with a rubber band in which she had to record her every action and meal throughout the day. It is clear that the law takes emotional abuse seriously, and that it is an important consideration when courts are deciding on the severity of sentences.

Misconception 2: Mentally ill employers will always be able to escape harsh sentences even if found guilty of maid abuse

In the wake of the widely publicized case late last year – where an employer allegedly starved the FDW employed by her and attempted to justify the abuse to be a result of various mental conditions[7] – this point aims to address some skepticism that might be held by the public surrounding the defence or mitigating pleas of mental illness in maid abuse cases.  The justification for considering mental conditions in cases of maid abuse is well explained in Soh Meiyun v PP[8] (“Soh Meiyun”), where in referring to the accused who was suffering from extremely severe depression and Obsessive Compulsive Disorder, Justice Chao Hick Tin observed that “the more serious an individual’s psychiatric problems, the greater the strain and stress she is put under by events in her life.” The learned Judge further went on to note that in some instances, the effect of such a strain on the individual would allow emotions to reach breaking point more easily, and in such instances where the breaking point is reached and the employer lashes out, the degree of harm she is likely to cause is greater. In such situations, it may be justified to find that the accused had lost control of their action, and as such did not intend to cause the harm that resulted. The position of law is clear that the Courts will recognize mental illness as a defence where it is justifiable and the elements are proven.

It must be noted however, that courts are extremely discerning when deciding whether to permit such a defence or mitigation. In three cases cited in the aforementioned case of Soh Meiyun, the courts still imposed the maximum sentence for the charges made in spite of proven mental conditions suffered by the accused. In PP v Koh Soon Kee, and PP v Kiew Seok Inn, the defences of major depression were not accepted, while in PP v Pooja Tanwani, claustrophobia was found to be insufficient to justify abuse. The factor that distinguished these cases from that of Soh Meiyun was that the accused were unable to prove that the mental illnesses were of such a great severity that they could be accepted to have led to the accused having intended to commit the crime. Ultimately, in the interest of justice, the approach by the law can be said to be in weighing out the extent to which the mental condition had impaired the accused’s ability to intentionally commit the abuse. While it is admitted that the suffering by the victim is just as unacceptable regardless of whether the abuser suffers from any recognized condition, the purpose of the law here is fundamentally to apportion guilt and not blame. As such, in situations where the mental condition of the abuser is not sufficiently severe that it would have prevented him/her from being responsible for their action, they would certainly be unable to escape harsh punishment.

Misconception 3:  FDWs are not able to do anything about abuse prior to intervention by the police or Non-Governmental Organizations (NGOs)

This is most definitely untrue, and it is most unfortunate that many believe this to be accurate. Very often, FDWs opt to tolerate what they perceive to be mild or tolerable instances of abuse, particularly when it manifests in verbal abuse or low levels of discomfort. Reasons why FDWs choose to do so is not the subject of this discussion, but it is noted that it is clearly their prerogative to do so if such tolerance is not coerced and made with informed choice. However, FDWs should be aware of steps they can take that will help prevent an escalation of abuse, or in the alternative help gather evidence to facilitate investigation by the police should the need arise. In the abovementioned case of Rosman bin Anwar, the diary kept by the FDW recording the instances and circumstances with which she was slapped and kicked by her employer was crucial in corroborating her recounts of the abuse that happened over the extended duration of her employment.

As recognized by the Minister for Home Affairs in the 1998 parliamentary session[9], “full-time domestic maids are usually female and are totally dependent on their employers for food and lodging. Having travelled long distances to work in Singapore, many of them are totally deprived of their support network of family and friends”. Moreover, “Maid abuse usually takes place in the privacy of the home where offences are hard to detect” (PP v Chong Siew Chin[10]). Consequently, FDWs have to be proactive in understanding their rights and avenues they can turn to for help, and also in recording any treatment they feel uncomfortable about. A list of such avenues is provided in Annex 1.

Conclusion

In a final analysis, in light of the tragic upward trend in cases of maid abuse in Singapore, it is certainly beneficial to better understand the position of the law with regard to how allegations of abuse are treated by law enforcers and the courts. While this article has by no means conclusively shed light on the areas of law relating to maid abuse, it hopes to have been a good starting point for broader accurate discourse on the topic.

Written in 2016 by Mark Lim (NUS Law class of 2019)

*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.

Annex 1: Avenues victims of maid abuse may turn to for help

If you are a Foreign Domestic Worker who has been abused, or you know or suspect of a Foreign Domestic Worker who has been abused, here are some avenues you can turn to for help:

[1] While this article aims to accord proper dignity to FDWs by avoiding the use of the term “maid” which is correctly often viewed to be derogatory, it also recognizes that many areas of the law, including section 73 of the Penal Code, still use the term. For the avoidance of confusion, this essay will use the term “maid abuse” to refer to the abuse of FDWs. Any offense is deeply regretted.

[2] Amir Hussain, “Probation for retiree guilty of maid abuse”, The Straits Times, 11 February 2016.

[3] Lee Han Shih, “Silence on maid abuse must end”, Business Times, 27 July 2002.

[4] Catherine Robert, “Maid Alleges Abuse by Fellow Myanmar Employers”, The New Paper, 20 December 2015.

[5] PP v Rosman bin Anwar and another [2015] SGHC 247; [2015] 5 SLR 937

[6] ADF v PP and another [2009] SGCA 57; [2010] 1 SLR 874

[7] Shaffiq Alkhaib, “Maid Abuse Trial: Wife has Anorexia and Eats Mostly Bread Herself”, The New Paper, 17 December 2015

[8] Soh Meiyun v Public Prosecutor [2014] SGHC 90; [2014] 3 SLR 299 at [51]

[9] PP v Chong Siew Chin [2001] SGHC 372; [2001] 3 SLR(R) 851 at [40]

[10] ibid at [43]