Criminal Law (Miscellaneous Amendments) Bill

Order for Second Reading read.

1.13 pm

The Minister for Home Affairs (Mr K Shanmugam): Mr Speaker, Sir, I beg to move, that the Bill be now read a Second time.

We last undertook an extensive review of the Penal Code in 2018 and 2019, and amendments were made in 2019.

That included amendments to strengthen the protection for minors and other vulnerable victims; deal with new crime trends; better deal with sexual offences; expand and clarify the scope of certain offences and defences; and modernise the language of certain provisions.

I will speak on some of the amendments relating to sexual offences. My colleague, Minister of State Desmond Tan, will take the House through the amendments in greater detail.

As this House is aware, we have made significant changes in legislation over the years, to deal with sexual crimes and strengthen the protection for women, children and vulnerable persons. These are set out in the Annex to my speech. And Sir, with your permission, can I ask the Clerk to distribute the Annex to Members.

Mr Speaker: Please do. [A handout was distributed to hon Members. Please refer to Annex 1.]

Mr K Shanmugam: Thank you. Members can also access this information, this material through the Singapore Parliament Members of Parliament mobile app.

In particular, we made several key changes to the Penal Code in 2019. I will highlight a few as relevant background for this Bill before I deal with this Bill.

First, in 2019, we had provided for enhanced punishments of up to twice the maximum prescribed penalties for some offences committed against vulnerable victims and persons in intimate or close relationship with the offender.

Second, to better protect minors under 16, we increased the penalties for the offences of rape, sexual assault involving penetration and sexual penetration of minors where the offender was in an exploitative relationship with the minor.

Third, we extended protection to minors between 16 and 18 years of age. Sexual activity with this category of minors was criminalised where the relationship was exploitative. These minors above the age of 16 are slightly above the age of consent for sexual activity. They can consent but in reality, they are susceptible to exploitation by those who are in a relationship of trust with them. In such cases, the minor's consent is compromised and we dealt with that.

Fourth, we introduced for the offence of procuring sexual activity by deception or false representation to deal with cases where the victim's consent was compromised due to the offender misleading them on the use of, for example, sexually protective measures or the absence of a sexually transmitted disease. This sought to protect victims from violations to their sexual autonomy and the serious risks that arise from that.

Fifth, we specifically made voyeurism an offence to address technology-facilitated offences. Previously, such offences would be dealt with under the rubric of insulting the modesty of a woman. The new offence of voyeurism doubled the maximum imprisonment term from one to two years and provided for the possibility of caning as well.

In the Bill before the House today, we also deal with sexual offences, amongst other matters.

As I stated in my Ministerial Statement in March, the maximum penalties are in our view properly calibrated for most of the offences. There are, however, three sexual offences for which we intend to increase the maximum punishments.

First, on outrage of modesty (OM) under section 354(1) of the Penal Code. We have seen an increased in the number of OM cases from 2016 to 2020. We had an average of 1,190 cases reported each year. This was a 24% increase from the previous five-year period from 2011 to 2015.

We have proposed to increase the maximum imprisonment term for OM under section 354(1) of the Penal Code from two years to three years. This will enhance deterrence and ensure that egregious cases are punished more severely.

This maximum imprisonment term of three years is only for the primary offence of OM under section 354(1). There are other aggravated variants of the offence such as OM against minors under 14 or where hurt is caused to the victim in order to commit OM, which already attract higher penalties.

Second, we will raise the penalties for sexual offences against minors for two sexual offences.

First, the offence under section 376ED(3)(b) of engaging in sexual activity in the presence of a minor between 14 and 16 years of age or causing a minor between 14 and 16 years of age to view a sexual image;

Second, the offence under section 376EE(3), which prohibits the same conduct against a minor between 16 and 18 years of age where the offender is in an exploitative relationship with the minor. An exploitative relationship may be found, for example, between a parent or a step-parent, teacher, sports coach, musical instructor of the minor and so on.

Currently, the maximum imprisonment term for these two offences is one year. We will increase that to two years. This will bring the punishment in line with similar offences involving sexual communications with minors.

Apart from increasing the penalties for these three offences, the Bill also makes amendments to other sexual offences such as sexual assault involving penetration, procuring sexual activity by deception or false representation, sexual penetration of a corpse, offences relating to voyeurism and intimate images, and offences relating to child abuse material.

These amendments will clarify the scope of the offences and finetune them further. Minister of State Desmond Tan will take the House through other amendments in his speech.

Sir, in conclusion, the amendments will strengthen our laws against sexual offences, signal the importance of building a society that embodies the fundamental values of equality and respect. I beg to move.

Question proposed.

1.21 pm

The Minister of State for Home Affairs (Mr Desmond Tan): Mr Speaker, Sir, thank you for allowing me to speak.

Minister Shanmugam has spoken on the amendments relating to the increased penalties for three sexual offences. In my speech, I will explain how this Bill expands and clarifies the scope of certain offences and defences, and modernises the language of certain provisions.

First, one gap that the Bill is meant to address is the giving of false information to public servants in the course of their duties.

The need to review this arises from a recent decision of the High Court, Public Prosecutor v Chua Wen Hao. In that case, the Police were looking for a suspect who had committed an offence at a hotel. At the hotel, the Police asked the accused person whether he knew the suspect. The accused person told the Police that he did not and that he had not allowed such a person to enter his hotel room.

Police investigations subsequently revealed that this was not true. In fact, not only was the accused person a friend of the suspect, they had gone out for drinks together and had planned to meet at the hotel. The suspect arrived at the hotel slightly after the accused person and joined him in his hotel room. As a result of the false information, Police officers wasted additional effort and time to uncover the identity of the suspect.

The accused person was charged under section 182 of the Penal Code, which provides for the offence of giving false information to a public servant with the intent of causing or knowing that it will likely cause a public servant to use his lawful power to the injury or annoyance of another person or to do or omit anything which the public servant ought not to do or omit if he had known the truth.

The High Court held that section 182 did not apply as the offence is concerned with situations where the offender intends to cause or knows that he will likely cause a public servant to abuse, misuse or improperly withhold the use of his or her lawful powers as a result of the false information.

The High Court held that the offence does not cover cases where a person gives false information with the intent of causing or knowing that it will likely cause the public servant to be ineffective and inefficient in exercising his lawful powers.

Giving false information to a public servant who is carrying out his or her duties is a very serious matter. There can be very serious consequences, for example, when the Police are hunting for a suspect in a murder or sexual assault case or when SCDF officers are responding to an emergency. The delay in identifying the offender could be a matter of life and death.

Clause 12 therefore amends section 182 to cover cases where the offender gives false information intending or knowing it is likely that the false information would cause the public servant to do anything which he or she would not otherwise do. This would cover cases where the false information results in the inefficient exercise of the public servant's lawful powers.

In addition, clause 13 amends section 186 of the Penal Code, which criminalises the voluntary obstruction of a public servant in the discharge of his or her public functions. The amendment makes clear that the act of giving of false information to a public servant can amount to obstruction, even if there was no physical obstruction or the use of threats. Whether the false information does in fact amount to obstruction is a question of fact for the Court to determine in each case.

In addition, the maximum imprisonment term under section 186 will be increased from three to six months. These amendments will strengthen our levers to deal with offenders who deceive public servants and in so doing, harm public interests.

Turning to the other offences, first, clause 23 amends section 376 of the Penal Code, which provides for the offence of sexual assault involving penetration. Subsection (1) of section 376 makes it an offence for a male offender to cause a male victim to penetrate the offender's anus or mouth with the victim's penis without the victim's consent or where the victim is below 14 years of age. This subsection will be deleted as the conduct is already covered under the broader subsection (2)(b).

Today, the offence of sexual assault involving penetration is gender-neutral. It can be committed by males or females. Therefore, we will also amend the defence under section 376(6) so that both male and female offenders may rely on it.

Next, clause 28 amends section 376H of the Penal Code, which makes it an offence for a person to procure consent to sexual activity by deception or false representation.

Clause 28 widens the offence to cover deception pertaining to the risk of the victim contracting a sexually transmitted disease, for example, a lie that the disease is not transmissible by sexual intercourse. The offence will also be widened to cover cases where the offender deceives the victim into consenting to being touched by a third person or into touching the bodily fluids of the offender or another person.

Clause 29 amends the offence of sexual penetration of a corpse. The offence currently prohibits a man from penetrating a corpse's vagina, anus or mouth with his penis. It also prohibits any person from causing a man to do so without the man's consent. The proposed amendments will (a) criminalise other forms of sexual penetration involving corpses; and (b) make the offender gender-neutral.

Clause 30 broadens the scope of the offence of voyeurism under section 377BB by replacing the term "genitals" with "genital region". This will ensure that the offence is wide enough to cover cases where the offender manages to capture an image of the victim's genital region but not the genitals themselves.

Clauses 31 and 34 deal with the definitions of "child abuse material" and "abusive material" under section 377C and section 377BL.

Currently, "child abuse material" and "abusive material" include material that depicts an image of a minor's breasts or genital or anal region in circumstances which reasonable persons would regard as being offensive. We will amend this definition to cover images of a minor's genital region, buttocks or breasts, whether exposed or covered.

This will enhance protections for minors by ensuring that the relevant offences apply to sexual images of scantily-clad children or close-up images of the child's genitals, buttocks or breasts – even if covered by clothing – in circumstances which reasonable persons would regard as offensive.

In addition, the Bill clarifies that the depictions must be sexual in nature. This will make clear that the intent is not to cover non-sexual depictions of minors, such as diaper advertisements.

Finally, clause 10 rationalises the punishments for abetting and attempting to commit serious offences that are punishable with death or life imprisonment but where the offence was eventually not committed.

Currently, under section 512 of the Penal Code, a person who attempts to commit an offence punishable with death or life imprisonment will face a maximum imprisonment term of 20 years.

However, where a person abets the commission of an offence punishable with death or life imprisonment but that offence is ultimately not committed, section 115 only provides a maximum imprisonment term of 15 years. This is even though an abettor under section 115 may be equally culpable as or even more culpable than a person who attempts to commit such an offence. For example, a person who conspires with another to murder a victim where the murder was not carried out could, depending on the facts, be just as culpable as a person who attempts but fails to commit the murder itself.

We will therefore increase the maximum imprisonment under section 115 from 15 years to 20 years, for parity with section 512.

I now turn to the amendments relating to the operation of certain defences.

Clauses 5, 6 and 7 amend the provisions relating to mistake or ignorance of fact, mistake or ignorance of law and accident. These clauses are intended to provide greater clarity on the way these provisions operate. They do not change the general common law principles on burden of proof, namely, that the prosecution must prove the elements of the offence and that the accused person must prove a defence.

Next, clauses 8, 9 and 17 amend the defence of unsoundness of mind, the defence of intoxication and the partial defence of diminished responsibility. The amendments clarify that where an accused person claims that he was incapable of knowing that what he was doing wrong, by reason of unsoundness of mind, the accused person must prove that he was incapable of knowing that what he was doing was both wrong by the ordinary standards of reasonable and honest persons, and wrong as contrary to law.

In other words, the two limbs are to be read conjunctively. This was in fact the position taken when the Penal Code was last amended in 2019, where we inserted the illustration to section 84. The present amendments only serve to make this clearer and do not change the state of the current law.

Finally, clause 20 amends section 352, which provides for the offence of using criminal force otherwise than on grave and sudden provocation. If criminal force was used on grave and sudden provocation, a less serious offence under section 358 will apply instead.

Currently, the explanation under section 352 provides that the partial defence of grave and sudden provocation does not apply if, among other things, the provocation was given by anything done in obedience to the law or by a public servant in the lawful exercise of the public servant's power. This means that an accused person cannot rely on the partial defence in this scenario, even if the accused person did not know and had no reason to believe that the provocation was given by anything done in obedience to the law or by a public servant in the lawful exercise of the public servant's power.

The amendment will broaden the scope of this partial defence so that an accused person can rely on the partial defence if he did not know and had no reason to believe that the provocation was given by anything done in obedience to the law or by a public servant in the lawful exercise of the public servant's power.

This aligns the partial defence of grave and sudden provocation under section 352 with the partial defence of grave and sudden provocation for more serious offences such as murder, voluntarily causing grievous hurt and voluntarily causing hurt. Similar amendments will be made to the partial defence of provocation where it appears in other Penal Code provisions.

Lastly, this Bill seeks to modernise the language of certain provisions under the Penal Code. As part of our continuing efforts to ensure that the law is more easily understood by present-day readers, clauses 11, 14, 15, 16, 32, 33 and 39 replace certain archaic terms, such as "wantonly", "maliciously", "malice" and "malignantly", with modern terms that are more easily understood and already defined in the Penal Code, such as "rashly" and "intentionally".

In conclusion, these amendments strengthen our laws and clarify their application.

1.34 pm

Mr Murali Pillai (Bukit Batok): Mr Speaker, Sir, I agree with the broad aims of the Bill, as articulated by the hon Minister and the hon Minister of State. I wish to touch on two areas in my speech.

First, noting that it is intended to narrow the applicability of the defence of unsoundness of mind, I would argue that public interest may be better served to go to the other direction – to broaden the grounds for raising the defence of unsoundness of mind. Second, in keeping with the raison d'etre of this Bill, which is to protect women, children and vulnerable persons from sexual predators, there should not be an age limit to caning as punishment. Instead, we should look to whether the person is medically fit to be caned. If it is found to be so, age should be no impediment.

On the first point, I note that it is proposed that before an accused may rely on the defence of unsoundness of mind under section 84 of the Penal Code, he needs to prove that he is both incapable of knowing that what he did was wrong by the ordinary standards of reasonable and honest persons; and wrong as contrary to law. In other words, he did not know what he did was both morally and legally wrong.

I further note that the amendments do not seek to widen the ambit of section 84, which covers only cognitive disorders, to include conative or volitional disorders; meaning to include situations where the accused simply cannot control his actions because of a mental disorder.

I am concerned that, because of the two observations that I made, the ambit of the proposed section 84 is too narrow and this may not be in public interest.

Let me explain. Any lawyer who has raised the defence of unsoundness of mind in Court, and I have done so, would know that an acquittal represents somewhat a Pyrrhic victory. This is because when an accused is held to have done the offending act but acquitted on the grounds of unsoundness of mind, will be ordered by the Minister to be kept in safe custody, usually, in a psychiatric institution "during the President’s pleasure".

In other words, he will be incarcerated at the institution indefinitely. Whilst there, he would receive treatment and would be monitored every six months. The Minister who gets the six-monthly reports on the accused, may order him to be discharged, if it is determined that the accused would not be a danger to himself and to others.

Instead of narrowing the ambit of section 84 of the Penal Code, it is my respectful view that public interest may be better served with a broader section 84, so that in an appropriate case, the Court is able to invoke the provisions to ensure that a person who is suffering from a serious mental illness, gets inpatient psychiatric treatment for as long as he would be a danger to himself and the public.

As it stands today, he may be punished and sentenced in the usual way. If he were to be sentenced to imprisonment, the public will then have to run the risk that the person may reoffend after serving the sentence, causing harm to himself or others, because of his continuing mental illness.

Let me illustrate this through a case – the 2001 High Court decision of PP and Dolah bin Omar. In that case, the accused, aged 55, murdered his own uncle by bludgeoning him to death with a stool. He then cut off his uncle's genitals. The trial judge described the killing as "utterly gruesome". The accused, however, was suffering from chronic schizophrenia which brought about a persecutory delusion. Through his counsel, he pleaded guilty to a charge of culpable homicide not amounting to murder on the basis of diminished responsibility. The accused however did not raise the defence of unsoundness of mind.

The Court was faced with a dilemma. It recognised that it is arguable that the accused should deserve compassion and leniency since what he did was because of his mental illness. Ordinarily, this would have meant that he should be sentenced to imprisonment not exceeding 10 years.

That in turn, would have meant he would have been back in circulation in about seven years' time after taking into account remission. Given his mental illness, this may cause further danger to himself and others. Naturally, the Court felt that such an eventuality was not desirable. It rued over the fact that the defence of unsoundness of mind was not invoked because that would allow the accused to be kept in custody in a psychiatric institution for so long as necessary. In the end, the Court, after expressing a lot of difficulty, decided to impose a life imprisonment sentence purely on a utilitarian basis, that is, of course, not doctrinally ideal.

I would also add that since then, we have passed in this House, provisions that would allow for the imposition of Mandatory Treatment Orders (MTOs) on persons who, as a result of their psychiatric conditions, committed minor offences.

Some years back, I argued in this House for a widening of the ambit of offences for which MTOs may be imposed. This led to the issuance of the Criminal Procedure Code (Prescribed Offences for Mandatory Treatment Orders) Regulations 2018 which prescribed a wider list of more serious offences for which MTOs can be imposed. So, the trend where persons with mental illnesses are concerned, is where possible, to impose sentences which will allow them to get treatment which will, hopefully, allow them not to continue with their harmful behaviour.

In 2018, the Penal Code Review Committee (PCRC), in its seminal report issued in August 2018 that precipitated the amendments to the Penal Code in 2019, also advocated a broadening of section 84 of the Penal Code that would allow accused persons with serious mental illnesses to receive clinical intervention instead of being punished.

It made two points: that section 84 should be broadened to include volitional acts because "there is no good reason why the criminal law should not account for the fundamental principle that a person should not be held criminally responsible for his involuntary conduct".

The majority of the Committee also felt it would be sufficient for an accused to be entitled to the defence of unsoundness of mind even if he knew what he did was legally wrong, so long as he did not know what he did was morally wrong, by reference to an objective standard. Against this backdrop, amendments were made in this House to the text of section 84 of the Penal Code in 2019.

I had occasion to review the speeches made by the hon Senior Parliamentary Secretary then, who moved several Penal Code amendments, which included section 84 of the Penal Code in 2019. With respect, it was a missed opportunity for the Government to explain why it was taking a different tack from the PCRC which advocated a broadening of the unsound mind defence.

In fairness, as the hon Minister of State said, I noted the illustration too, that was introduced through the amendment of section 84 of the Penal Code which, on its own, seems to manifest an intention that a conjunctive interpretation should be adopted for the amended section 84 of the Penal Code. I am however not surprised that the current amendments are still being sought to amend the wording of section 84.

This is because it is specifically provided under section 7A of the Interpretation Act, where an illustration is inconsistent with the provision, the provision prevails. In other words, parliamentary intention could not have been sufficiently manifested by mere reference to the illustration. As a result of these developments, even though this provision is being amended for the second time in two years, this is probably the first time that we will be able to hear why is it that it is being proposed to narrow the ambit of section 84 of the Penal Code.

I would invite the hon Minister of State to please explain why it is felt that the conjunctive interpretation is to be preferred over the disjunctive interpretation of section 84 of the Penal Code; and why is that section 84 is still not broadened to include volitional acts?

I now turn to the primary intention of this Bill which is to enhance penalties for some sexual offences such as outrage of modesty, sexual activity in presence of a minor and so on. Having regard to the crime trend that is being highlighted, I support the amendments to the sentencing provisions that will enable more deterrent sentences to be imposed in egregious cases. This includes not just imprisonment but caning too.

What I would like to focus on in my speech is whether the provisions providing for the sentence of caning that may be imposed by the Court on male offenders for committing serious sexual offences are fit for purpose. As is well known, sentences of caning prescribed in the Penal Code provisions dealing with serious sexual offences are subject to a requirement in the Criminal Procedure Code that a male offender of or above the age of 50 cannot be caned.

This has been interpreted by the Court of Appeal in 2015 decision of Yong Vui Kong v PP, to mean that Parliament intended to use the age of 50 as "a convenient proxy to screen out those who are likely to be unfit for caning", given that there is "an inverse relationship between one's age and one's physical condition".

In March 2020, I highlighted in this House, that the cut-off age of 50 was first introduced in 1900. I also highlighted that the life expectancy at birth for males in Britain, from which the Criminal Procedure Code was enacted in Singapore through Imperial legislation, was 47. The cut-off age more or less coincided with the life expectancy of males at that time. More than 120 years later, the life expectancy at birth for males in Singapore is slightly more than 80 years.

I further pointed out that in Malaysia, whilst the age of 50 has still been retained as a cut-off point for caning, when it comes to serious sexual offences, there is no cut-off age for a male convicted for a serious sexual offence. So long as he is assessed to be medically fit, he can be caned.

I asked if the provision limiting caning for serious sexual offenders to males below 50 is fit for purpose. In reply, the hon Minister of State informed this House then, that her Ministry will look into it and take steps as necessary. More than a year later, I remain concerned whether the provision is still fit for purpose.

I also wish to highlight an unintended consequence of maintaining the age of 50 as a cut-off age. A repeat offender over 50 may potentially get a less deterrent sentence even after taking into account that he may get an additional term of imprisonment of up to 12 months in lieu of caning.

Just a few days ago on 31 August 2021, The Straits Times published an article of a case of a man who was convicted in 2001 and sentenced to 19 years' jail and 24 strokes of the cane for rape and other sexual offences committed against his then-stepdaughter. After coming out of prison in 2013, the man, after less than three years, sexually abused his two grand-nieces aged nine and 11 respectively. He pleaded guilty to these offences. The irony is that even though he is a repeat offender, he will be getting a sentence without caning because he crossed the age of 50.

This state of affairs, with respect, is not desirable. I do not see why Parliament should presume in his favour, in favour of a repeat sex offender, that he is not fit to be caned when he is clearly fit to commit those heinous acts. I also think it is not a coincidence that such middle-aged offenders tend to target younger victims. We need to ensure that such like-minded offenders will be strongly deterred from harming them.

In my respectful view, it is for this House to ensure that the caning provisions being passed as punishment for serious sexual offences continue to be fit for purpose. That is, whether a person can be caned or not should be determined by medical fitness, and not age. It is this House’s duty to deal with the unintended consequence of maintaining 50 as the cut-off age for such sexual offenders.

I welcome the hon Minister of State’s response to the points I make about caning. With that, I support the Bill.

Mr Speaker: Ms Sylvia Lim.

1.47 pm

Ms Sylvia Lim (Aljunied): Mr Speaker, I declare that I am a lawyer in the criminal law practice. Sir, the rationale for some of the key amendments was previously discussed in the House in March, during the Ministerial Statement on the Review of the Sentencing Framework for Sexual and Hurt Offences. Earlier, in his Second Reading speech, the Minister reiterated the Government's position as well.

Today, I wish to instead raise some reservations about another aspect of the Bill: the changes to the offences involving giving false information to public servants or obstructing them in their duty. Overall, it appears to me that the changes in the Bill will result in a blurring of the distinctions between different offences and I am not clear as to why this is necessary or desirable.

Let me explain. Under clause 12, the scope of the offence under section 182 of the Penal Code will be expanded. Section 182 deals with the offence of giving false information, with intent to cause a public servant to use his lawful power to the injury of another person. According to the Explanatory Note to the Bill and confirmed by the Minister of State earlier as well, section 182 is being amended in light of the High Court decision this year in Public Prosecutor v Chua Wen Hao.

Sir, in that case, the offender falsely told Police that he did not know the identity of the person who had set fire to certain property belonging to a hotel. This denial led the Police to spend nearly 22 man-hours on investigations to establish the identity of the culprit. In giving his judgment in the case, as noted by the Minister of State earlier, the Chief Justice ruled that section 182 did not cover a situation where the false information simply led to a public servant being inefficient in exercising his lawful powers to investigate the case. He ruled that section 182 was meant to cover situations where the offender intended or knew that the false information would likely lead the public servant to abuse or misuse his powers, or to improperly omit to use lawful powers. Such scenarios would include false statements that lead to a wrongful arrest, or which subject innocent persons to annoyance. The Chief Justice made clear that false information leading to a public servant simply being inefficient in carrying out his lawful duties did not come under section 182.

Sir, while clause 12 of this Bill is clearly intended to plug that gap, what is notable about Chua's case is that the offender was not let off scot-free, but was convicted of a simpler offence of furnishing false information to a public servant, under section 177 of the Penal Code. That being the case, I wonder why it is necessary to amend section 182 and, in particular, to add another illustration (d) to capture the situation where false information simply leads to an inefficient use of Police resources. Such conduct is already caught by section 177. In addition, the sub-heading or marginal note to section 182 is not being amended, so it will still read "False information, with intent to cause a public servant to use his lawful power to the injury of another person". This could result in some misunderstanding by the public as to the scope of the section.

It, therefore, seems to me that there will now be a blurring of the lines between sections 177 and 182, and the rationale for this change is not compelling.

Yet another blurring may be caused by clause 13, which amends section 186 of the Penal Code. Section 186 deals with "Obstructing public servant in discharge of his public functions". Under clause 13, a new subsubsection (2) will be added, to state that obstructing a public servant may be caused other than by use of physical means or threatening language. A new illustration is introduced, where a group of SCDF paramedics is attending to a case of heart attack in a high-rise block, intending to use the lift to the 30th floor; the paramedics are then told by the offender that the lift is out of order, which is not true, causing them to take the stairs. This new illustration confirms that section 186 too will be expanded to cover the giving of false information.

There now appears to be yet another overlap between offences, in that giving false information could come within section 177 and also within section 186. How will the Police decide which section to charge a person under?

Sir, in studying this matter, I note that under section 177, the offender must have been under a legal duty to give information, whereas under section 186, the offender need not have been under such a duty. Giving false information to a public servant when one is under a legal duty to give information is arguably more serious than when one is not under such a duty. This raises the additional question of why the maximum jail term under section 186 is now being brought to the same level as section 177, being raised from three months to six months, when there is a difference in culpability.

Sir, to that end, the Ministry's clarifications on the changes being made by clauses 12 and 13 would be useful for future cases.

Mr Speaker: Raj Joshua Thomas.

1.53 pm

Mr Raj Joshua Thomas (Nominated Member): Thank you, Sir. Sir, this Bill introduces increased penalties for outrage of modesty and offences in which minors are involved, as well as expanding the scope of certain offences and defences.

I support these increases in penalties to act as a greater deterrent against such offending behaviour and to allow the Courts to mete out harsher sentences for perpetrators of these offences. Separately, we also need to look at how to ensure that victims have avenues to seek support and assistance to make Police reports if crimes are committed against them.

This is particularly so for minors who are victims of such offences. In this regard, I am heartened by the various efforts made by the Government to make it easier and less straining on minor victims to describe what they had gone through. For example, the multi-disciplinary interview model for children who have been sexually abused by their family members consolidates interviews from various parties into just one interview, so that child victims do not need to repeat accounts of traumatic experiences multiple times. I note also that the National Institute of Early Childhood includes in its curriculum for teachers, concepts of body safety, such as identifying good or bad touches and how to teach children protective skills to prevent sexual abuse. Separately, I look forward to the findings of the review on whether screening should be implemented for persons who work with children.

I turn now to seek clarification on specific clauses in the Bill. Before I go on, I declare my interest, Sir, as a practising lawyer.

First, clauses 30, 31 and 34 seek to replace the term “genitals” with “genital region”. My humble submission is that this does not provide sufficient clarity as what exactly is included in this new term “genital region” which could extend to the upper thigh, pelvis, pubis or lower stomach. In this regard, I would urge that the Minister consider including a definition or illustrations to make clear what “genital region” refers to.

Second, I refer to clause 12 which seeks to amend the current section 182 of the Penal Code. Clause 12 adds the words "or would not" after the words "ought not to".

Sir, the Minister of State expounded earlier on the recently decided case of Public Prosecutor v Chua Wen Hao and another appeal in the High Court, where Chief Justice Menon drew a distinction between an offence under section 182 of the Penal Code and section 177 of the Penal Code. CJ Menon observed in that case that there was a distinction that had to be drawn between a "misuse" of Police powers, where an officer ought not to have done something, which is the wording of section 182 in the current Penal Code and an "inefficient" use of Police powers, that is, something the officer would not or might not have done.

This same clause and section was raised just before me by Ms Sylvia Lim. My question, Sir, is whether section 182 is now being expanded by clause 12 to cover the same ground as section 177, seeing as section 177 remains untouched. Would it also mean that an accused person may end up being charged for a more serious offence under section 182 instead of a lesser offence with lower penalties under section 177?

Separately, Sir, I would like to seek updates on two matters related to today’s Bill and the wider criminal law framework. The first is with regard to the Sentencing Advisory Panel that the Minister for Law announced in March 2021 and whether the Ministry has any updates on the timeline for the setting up of the panel, the terms of reference and the composition of the panel.

Second, I would like to urge the Government to commence a study of whether the identities of persons accused of sexual crimes should be published until they have been convicted and exhausted all avenues of appeal. The recent case of Dr Yeo Sow Nam who obtained a discharge amounting to acquittal illustrates how an innocent person can have his name sullied and suffer public and long-term stigma, which affects not only his professional life, but also his personal life. To quote Dr Yeo: "It was humiliating, a lot of ignominy, public shame, a feeling of persecution by the country I love when I have not done anything wrong".

Sir, I ask for this review to be done, in particular, for persons accused of sexual crimes because this category of crimes leaves a particular stain on how a person is viewed by the public, even if that person is ultimately found not guilty or discharged. Furthermore, such crimes, because they often occur in private, tend to have a "he-said-she-said" character. The Courts themselves have acknowledged this in how they assess the evidence adduced, in requiring that testimony be "unusually convincing" for a conviction. I also urge that the study consider whether such protection should be provided until all avenues of appeal are exhausted. This follows from the case of Ong Ming Wee, who was convicted for rape in the first instance, but acquitted on appeal.

The Minister for Law has addressed this matter in extent in May, in response to a Parliamentary Question by my fellow Nominated Member of Parliament colleague Dr Tan Yia Swam, in which he said that the Ministry will keep, and I quote, "under review" its current position where the accused is named at the onset of proceedings. I hope the Minister will consider a formal review and a formal consideration of the pros and cons of introducing protections for persons accused of sexual crimes and under what circumstances.

Notwithstanding these clarifications and suggestions, Sir, I support the Bill.

Mr Speaker: Mr Sharael Taha.

1.59 pm

Mr Sharael Taha (Pasir Ris-Punggol): Thank you, Mr Speaker, Sir. The amendments made in the Criminal Law Bill are in light of the current trends in our legal landscape. I am in support of these amendments. However, I would like to raise three clarifications.

Firstly, as we increase the sentence for engaging in sexual activity before a minor or causing a minor to observe a sexual image, does it also include sending hyperlinks or deceptively embedding hyperlinks to sexual images, content and websites to minors? Secondly, beyond harsher sentences, how can we better protect the vulnerable. Finally, while we support harsher sentences, we must also protect the wrongly accused.

Let me touch on the first clarification. We must recognise that sexual offences are not only physically damaging but it scars the victims emotionally and psychologically. There has been an alarming increase of outrage of modesty cases. As mentioned by Minister Shanmugam, which was reported in The Straits Times on 5 March 2021, the number of outrage of modesty cases between 2016 and 2020 was 24% higher than from 2011 to 2015. Given the rise in cases, the harsher sentences will act as a strong deterrence for would-be offenders.

The increased use of the digital space amongst our youth, unfortunately, also increases the chance of them being exposed to sexual grooming, sometimes even on seemingly innocent online platforms. Beyond just sending inappropriate pictures and content to the vulnerable, I would like to clarify if this also includes sending hyperlinks of sexual images or hyperlinks to sexual content and websites through platforms, such as Instagram Chat, WhatsApp chat, Tik Tok comments, or chat on games platforms like Minecraft or Roblox. Sometimes, these hyperlinks are also deceptively embedded in an online chat and take the form of what is known as "clickbait". An innocent child may inadvertently be routed to inappropriate content and this is, indeed, something that is increasingly worrying. In addition, what legal action can be taken by the Ministry if the perpetrators are not in Singapore as it is more than conceivable that online sexual grooming can occur across state borders? Will the Ministry consider setting up a platform where parents, adults and minors can easily report such perpetrators?

Is there a register of sexual offenders in Singapore? Do we have the capability and resource to track such offenders if there is, indeed, one? And how do we prevent such sexual offenders from taking on roles which may put others at risk? For example, will they be barred from becoming teachers or private tutors and coaches? And what happens when a person on such an offenders’ list is successfully rehabilitated and fully repentant?

The change to gender-neutral language also reflects the unfortunate realities of such heinous acts. Any vulnerable person can be a victim and to characterise a person as a potential offender through a checklist, is creating caricatures. As such, it is of utmost importance that parents and guardians be mindful about who is trustworthy, exercise vigilance and educate the young to spot and report what is not appropriate. In addition, the community has a responsibility to create safe spaces for the vulnerable to report such acts without shame, guilt or fear.

While harsher sentences do act as a deterrence, how can we further protect the vulnerable against convicted offenders? Can the Ministry consider some form of registry or self-declaration such that convicted offenders of sexual offences will not be able to work in situations where they will be exposed to the vulnerable? How do we enhance the protection to our children and allow parents to make an informed decision? Many of our children are taking private tuition, coaching lessons, or extracurricular activities, such as piano lessons. It can even extend to school bus drivers and their attendants, and vendors for after-school programmes. It is of paramount importance that we do not make our children more vulnerable than they already are.

For convicted offenders of sexual offences who prey on victims online, can the Ministry consider monitoring their online activities during their rehabilitation period after they have served their sentences? Only after they have been suitably assessed as having been fully rehabilitated would they then be allowed to exercise the liberties of regular citizens.

These two methods may prove to be more of a deterrent to potential offenders than simply increasing the maximum sentence of the offences. However, while we support harsher sentences, we must also protect the wrongly accused. The nature of sexual offences is such that it takes a lot courage for a victim to proceed in making a report. Self-doubt, embarrassment and even a sense of self-blame plague many victims. It is because of this mental anguish, on top of any physical harm and abuse that have already occurred, that perpetrators must be brought to justice. However, it should not be abused by the very few who, out of spite or mischief, decide to lodge such reports. Mr Speaker, Sir, in Malay, please.

(In Malay): [Please refer to Vernacular Speech.] There has been an alarming increase of outrage of modesty cases. Between 2016 and 2020, the number of outrage of modesty cases reported was 24% higher than the number of cases from 2011 to 2015. Given the rise in cases, the harsher sentences will act as a strong deterrence for would-be offenders.

The increasingly widespread use of digital space amongst our youths, unfortunately, also increases the chances of them being exposed to sexual grooming, sometimes even on seemingly innocent online platforms. Parents play a role in educating the young and those who are more vulnerable by monitoring their online activities so that they do not fall prey to such acts. I suggest that parents and guardians be mindful about who is trustworthy and can be trusted and exercise vigilance and educate the young to spot and report inappropriate activities.

Our society has a responsibility to create safe spaces for the vulnerable and to report such acts without hesitation.

While harsher sentences do act as a deterrence, we can enhance protection for the vulnerable against convicted offenders by establishing an offender registry. We can deter or at least be aware of such offenders when they are employed in situations where they may be exposed to the vulnerable. Such jobs may include teachers, tutors and school bus drivers.

Certainly, it is not easy for victims of sexual offences to lodge a report. They need to be strong and to summon their courage to make the report. Self-doubt, shame and even a sense of self-blame plague many victims. It is because of this mental anguish on top of the physical harm that they suffer that perpetrators must be brought to justice. Therefore, our justice system must not be so onerous for victims to pursue justice. However, it should not also be abused by the very few who lodge such reports in bad faith.

(In English): Mr Speaker, Sir, allow me to conclude in English. The amendments made in the Criminal Law Bill are in light of the current trends in our legal landscape. Notwithstanding the clarifications above, I support the Bill.

2.07 pm

Mr Louis Ng Kok Kwang (Nee Soon): Sir, this Bill follows MHA and MinLaw’s review of the sentencing framework for sexual and hurt offences. The amendments in this Bill have been raised through a considered process and take into account public moral norms as seen through reactions to high-profile sentencing decisions in sexual and hurt offences. I have three points to make.

First, I would like to seek clarification on the measures to ensure that adult offenders who commit sexual and hurt offences no longer pose a threat to public safety once they have served their sentences. This Bill will raise the maximum penalties for outrage of modesty, engaging in sexual activities in the presence of a minor and causing a minor to view sexual images.

This is consistent with Minister Shanmugam’s Ministerial Statement last month, when Minister stated that the sentences for sexual and hurt offences must reflect that such acts are deeply offensive to society’s fundamental values. Also in line with this is the announcement that AGC will, generally, object to rehabilitative sentences, such as probation and community-based sentences, where the offenders are adults who commit certain types of hurt or sexual offences.

I agree with the strong signal sent by focusing on the punitive purpose of sentencing for adult offenders of hurt and sexual offences. However, even with a harsh sentence, there remains a need to ensure that such offenders receive appropriate counselling and treatment. Can the Minister share what kinds of counselling and treatment are provided to offenders of hurt and sexual offences? Will they receive such treatment only during their sentence? Is there scope to consider mandating post-release treatment for such offenders, where medical and psychiatric professionals deem necessary?

My second point is on the changes of the fault element for certain offences from “malice” to “intent to cause injury” for certain offences. The purpose of this is to clarify the fault element of the offence.

Injury is defined under the Penal Code as “any harm whatever illegally caused to any person, in body, mind, reputation or property”. Can the Minister confirm that an “intent to cause injury” does not succeed in causing the specific type of injury intended, or the offender does not succeed in injuring the intended victim? Can the Minister also clarify whether emotional injury, such as feelings of harassment or distress, not amounting to psychiatric or mental injury, constitutes injury?

My final point is on compensation orders for victims. Under section 359 of the Criminal Procedure Code, the Court is required, after the conviction of an accused, to consider whether or not to make an order for the accused to pay compensation to the person injured. This gives due regard to the harm suffered by the victim of a crime who is an equal participant in the criminal justice system and not simply a means to an end of convicting the accused.

This is also an important mechanism to provide some measure of compensation for the victim of a crime, without requiring the victim to commence lengthy and costly civil proceedings separately after criminal proceedings conclude. Minister Shanmugam announced in his Ministerial Statement that the Ministry will be setting up a Sentencing Advisory Panel to issue non-binding sentencing guidelines. Will the Minister also consider including in the Panel’s scope of work a review and publication of guidelines on compensation quantum under section 359 of the Criminal Procedure Code? Sir, notwithstanding these points, I stand in support of the Bill.

Mr Speaker: Mr Zhulkarnain Abdul Rahim.

2.11 pm

Mr Zhulkarnain Abdul Rahim (Chua Chu Kang): Mr Speaker, I stand in support of the Bill. I welcome these amendments to provide greater protection to the most vulnerable groups of our society – children and foreign domestic workers, or FDWs, included. At the same time, these amendments also enhance the punishment for sexual offences and violence against such groups. I agree with the strong signal that abuse of vulnerable persons, children and FDWs cannot be condoned.

The current amendments also expand the jurisdiction of the District Court and Magistrates' Court to hear and mete out enhanced punishments for racially or religiously aggravated offences. This is a welcomed move, especially given the recent discussions on race and racism issues. I hope that these amendments, together with the introduction of the Maintenance of Racial Harmony Act in the future, shall help promote and preserve our racial and religious harmony which is precious to all of us. I do have three clarifications.

Firstly, with regard to the amendments to the Penal Code relating to the mistake of law or fact under sections 79, 79A and 80: with the burden of proof on the Prosecution to prove beyond reasonable doubt, the fault element of the offence, what are the safeguards to prevent abuse of such defences of mistake, especially when someone claims mistake without needing to provide the reasonableness of the same?

Secondly, in relation to the offences of obstructing a public servant in the discharge of his public functions, while I agree with the enhanced punishment to six months’ imprisonment, I would like to ask whether there would be a harsher sentence when aggravating factors are present, for example, if the said obstruction has caused damage to public property or loss of life, compromised the safety of the officers, or even jeopardised the operational effectiveness of the mission success or exercise. Perhaps a harsher sentence or appropriate restitution or compensation order should be made in that respect.

Thirdly, I welcome the enhanced penalties under the amendment to section 354(1) of the Penal Code, which increases the penalty for the outrage of modesty cases. Anyone who assaults or uses criminal force with intent to outrage modesty would be attracting an enhanced punishment from two years to three years. This sends a strong signal that such sexual violence cannot be condoned.

However, under section 354(2), where the offence is perpetrated upon children under the age of 14, the penalty has not been increased. What is the rationale for not increasing the penalty under section 354(2), if I may ask? Previously, the offence, if committed against children, attracts more than double the punishment, if not committed against children.

Separately, what is the rationale to limit section 354(2) to victims under 14 years of age and children as defined under the Children and Young Persons Act (CYPA)? Why not cover all minors under 16 years old? This will be consistent with the offences of sexual grooming or exploitation in sections 376A to 376EE.

In summary, Mr Speaker, Sir, I welcome the amendments to enhance the punishment for sexual offences and violence. I think there needs to be greater protection for not only children under 14 years of age but all minors under 16 years old.

Mr Speaker, Sir, notwithstanding the clarifications, I stand in support of the Bill.

Mr Speaker: Minister K Shanmugam.

2.15 pm

Mr K Shanmugam: Thank you, Sir. I thank the Members who spoke in support of the Bill. I will deal with the questions and suggestions raised by Members in turn.

Mr Zhulkarnain Abdul Rahim suggested that we should raise the penalty for section 354(2). We had considered this and reviewed it. We felt that it was not necessary at this stage. The penalty is severe enough. It has got to take reference from other penalties across different sections.

Mr Murali Pillai asked whether the age limit for caning remains fit for our purpose today. Again, our assessment is that there is no reason to raise the age limit. The number of men over the age of 50 arrested for serious offences that attract caning is significantly lower, compared to men under the age of 50. Where an offender is not eligible for caning, as Mr Murali Pillai and Members of this House will know, the Court can still impose an additional imprisonment term of up to 12 months, in lieu of caning, if it assesses that there is a need to do so.

The Member raised the concern of offenders who are near the age of 50 delaying the proceedings to escape caning. Raising the age limit, by itself, may not stop the problem because, when you shift the line, the problem may also shift. But I accept that, in logical terms, by reference to life expectancy, Mr Murali Pillai's case is a cogent one. My response to him is that we have been quite cautious about extending the categories of people who are caned.

A clarification. In the example cited by Mr Murali Pillai of the accused person who tried to delay proceedings, caning was not carried out in that case because the accused was found medically unfit for caning, not because he had crossed the age of 50. The Court then imposed an additional imprisonment term of 12 months, on top of the initial imprisonment sentence.

Mr Raj Joshua Thomas asked for an update on the setting up of the Sentencing Advisory Panel with regard to the terms of reference and its composition. We will provide, on the formation of the Sentencing Advisory Panel, the terms of reference and its composition in due course, after the details are firmed up.

Mr Louis Ng asked about the Sentencing Advisory Panel as well and whether it could review and publish guidelines on victim compensation under section 359 of the Criminal Procedure Code (CPC). Compensation orders under the CPC are meant for cases where the fact and the extent of damage are either agreed or readily and easily ascertainable on the evidence.

Ms Sylvia Lim and Mr Raj Joshua Thomas sought clarification on the rationale for amending section 182. Ms Sylvia Lim made the point as to whether the amendment is necessary, considering that giving false information to a public servant is already dealt with by section 177. As Ms Sylvia Lim and Mr Raj Joshua Thomas pointed out, section 177 applies if the person giving false information was legally bound to provide the information to a public servant. In Chua Wen Hao's case, again, as both Members of Parliament pointed out, the Court said that section 182 is not designed to protect a public servant from the inefficient exercise of lawful powers.

Now, I should make clear that inefficient exercise in that case arose from false information being given. Because false information was given, the Police had to spend extra time running around, doing the investigations.

The Court held that an offence under section 182 was not made out although Police took more time to investigate the identity of one of the persons of interest because the Police would have had to investigate this case anyway, regardless of the false information.

We are amending section 182 in a very simple way to deal with this lacuna. Section 182 applies even when you give false information even though you are not under an obligation to do so. Section 177 applies when the person is under a legal obligation to give information.

I note Ms Sylvia Lim's point on the marginal note. We did not amend the marginal note of the provision because the main thrust of the offence has not changed. The intent and the scope of the amendment, of course, is made clear through the wording of the provision, the illustration that has been added, the Explanatory Statement and the discussion in the House today.

Let me now move to section 186.

Ms Sylvia Lim highlighted the overlaps between sections 177 and 186, and sought clarification on the rationale for raising the maximum imprisonment term for section 186, even though providing false information to a public servant when one is under a legal duty to do so, which is section 177, is arguably more serious than when one is not under such a duty. On section 186, I think Ms Sylvia Lim is right if both cases involve giving of false information. Sections 177 and 186, however, can cover different types of criminal conduct.

Section 177, as we have just seen earlier, applies when one is under a legal duty to give information to a public servant. The provision of the false information is the central element of the offence.

In contrast, section 186 deals with obstruction of public servants in the discharge of their public functions. It can be through the provision of false information but it can also be through other means and one can imagine easily very egregious circumstances – deliberate physical obstruction of public servants when they are doing something extremely important and urgent, for example, in the saving of lives.

Quite apart from giving of false information, the crux of the offence under section 186, therefore, is, in some way, interfering or obstructing the performance of a public servant's duties.

The new illustration being added will help to explain this. So, the illustration: a person plays a prank on, say, SCDF paramedics who are responding to an emergency and he gives false information to the paramedics with an intention of causing a delay in the paramedics' provision of medical assistance. Even though the person may not be legally bound to provide information, his act of giving false information, intentionally wasting SCDF's time and resources in the midst of an emergency, could lead to very serious, possibly even fatal consequences.

So, the proposed amendments clarify that section 186 is not limited to physical acts of obstruction. They could also include the provision of false information, depending on the facts of each case.

There is some overlap. I accept that. But the essence of the offences is distinct and primarily addresses different types of conduct.

The proposed raising of the maximum imprisonment term for section 186 to six months is to align the penalties with that of section 177(1) so that they can potentially cover conduct of similar blameworthiness. The actual penalty imposed will, of course, depend on the facts.

Mr Raj Joshua Thomas also highlighted the overlaps between section 177 and the amended section 182 and asked if accused persons will be charged under section 182 instead of the less serious section 177. It is up to the prosecution to assess, exercising their prosecutorial discretion, as to which offence has been established, which charge should be preferred, depending on the facts of each case.

Mr Zhulkarnain Abdul Rahim suggested that persons who obstruct public servants in the discharge of their public functions under section 186 should face a jail term of up to two years, compared to the six months proposed in this Bill. He has said that obstruction could lead to grave consequences. I agree that it could lead to grave consequences, but, at present, having reviewed it, we do not see a need to increase the maximum sentence, based on the cases that have arisen. Some of the more egregious instances raised by the Member will likely be caught by more serious offences, such as section 353 on using criminal force to deter a public servant from discharging his duty.

The third area is the protection of minors from sexual offences.

Mr Zhulkarnain Abdul Rahim asked why aggravated penalties for outrage of modesty under section 354(2) only apply when the minor is under 14 years old. He suggested aggravated penalty should also apply when a minor is under 16, consistent with the offences of sexual grooming and exploitation.

This question was considered by the Penal Code Review Committee (PCRC). They submitted their recommendations in 2018. Both sets of offences – whether the victim is below 16 or below 14 – are treated seriously. An offence of sexual penetration under section 376A of the Penal Code is now punishable with up to 10 years of imprisonment and/or a fine if committed against a victim between the ages of 14 and 16. So, it is pretty serious, the penalties.

However, if the victim is below the age of 14, the offence is punishable with up to 20 years of imprisonment instead and there is also a possibility of caning. The criterion of 14 years of age under section 354(2) is consistent with this approach.

Mr Sharael Taha expressed concern about sexual grooming in the digital space. He asked three questions: first, whether the offence of sexual grooming will cover persons who send links to sexual images or content through various online platforms; second, whether the Government could consider setting up a platform for members of the public to report such perpetrators; and third, how will the Government act on information if the perpetrators are not within Singapore?

In 2019, we amended the Penal Code to introduce specific offences relating to technology-facilitated sexual offending. These offences include sexual communications with minors, sexual activity or image in the presence of a minor and depending on the facts of the case, the act of sending links to sexual images or content to a minor under the age of 16 will be covered by this rubric of offences.

A similar situation will apply if the minor is aged between 16 and 18, and the perpetrator is in an exploitative relationship with the minor. The offences will be committed even if the communication originated from outside of Singapore or the perpetrator is outside Singapore. But bringing him into Singapore and making him face justice is, of course, a separate question. The offences will also apply, regardless of the online platform through which the sexual content was communicated. So, this will cover links sent via Instagram, WhatsApp, TikTok, games platforms and so on.

Parents and other persons who wish to report such incidents can lodge a Police report online or in person. In investigating these crimes, the Police will identify the available evidence, including digital evidence.

Police will also work with external stakeholders by requesting information from online platforms, including message applications, or from telecommunication companies to try and identify the perpetrator. Where the perpetrator is not in Singapore, the Police work with foreign law enforcement agencies to investigate such cases within the ambit of existing international agreements.

The fourth area relates to the Government's measures to rehabilitate the offender and protect the public, especially vulnerable members of the public.

Mr Louis Ng sought clarification on the counselling and treatment provided to persons who committed hurt and sexual offences and whether we can consider mandating post-release treatment for these offenders.

Mr Sharael Taha asked if the Government could consider a registry to prevent convicted sexual offenders from working with vulnerable individuals, such as children. He also asked about digital deterrence and whether the Government could monitor the online activities of sexual offenders who had preyed on victims online after they had served their sentences.

Inmates undergo various rehabilitative programmes while in prison and also post-release, if needed. During incarceration, inmates will be placed on programmes which are calibrated based on their general risks of reoffending and rehabilitation needs. These programmes include psychology-based correctional programmes, family programmes, employability skills training and religious programmes.

Selected inmates who had committed sexual offences are given evidence-based psychological interventions to mitigate their risks of sexual reoffending. If assessed suitable, eligible inmates may be emplaced on community-based programmes towards the tail-end of their incarceration to continue their rehabilitation in the community under supervision.

Inmates who had committed sexual offences may be referred to community partners before their release if they are assessed to require longer-term support for their successful rehabilitation and reintegration into the community.

Offenders who committed offences on or after 1 July 2014 are subjected to the Conditional Remission System, or CRS, upon their release. The CRS seeks to deter ex-offenders from reoffending by subjecting them to conditions upon their release.

If an ex-offender breaches the basic condition of not committing another offence under the CRS and is sentenced to imprisonment, the Court may impose an enhanced sentence as a penalty.

Ex-offenders who are at a higher risk of reoffending, or who require more support in their reintegration, may also be emplaced on the Mandatory Aftercare Scheme, or MAS. This includes ex-offenders who had committed certain sexual offences, such as rape and sexual penetration of a minor.

Under the MAS, released offenders undergo close supervision under the Singapore Prson Service (SPS) and have to comply with the mandatory aftercare conditions imposed by the Commissioner of Prisons. Such conditions may include attending counselling or therapy, regular reporting and wearing of electronic monitoring devices. If the supervisee breaches his supervision conditions, he will be dealt with. If he commits new criminal offences, he may be charged.

Supervisees also undergo counselling and case management for up to two years, to help them in their rehabilitation and reintegration. Supervisees who had committed sexual offences will continue to receive counselling support from SPS's Correctional Rehabilitation Specialists, if required.

On the suggestion to monitor the online activities of sexual offenders after their release, there are practical limitations on how this can be done. Some overseas jurisdictions which implemented such restrictions faced manpower challenges to track online activities for an extended period of time.

Additionally, as Members will appreciate, measures to control such activities can easily be bypassed.

As for preventing convicted sex offenders from working with vulnerable people like children by setting up a sex offenders' registry, I mentioned this to the House in April this year. The Police already maintains a non-public record of persons convicted of serious offences, including sexual offences. Agencies like MOE and MSF work closely with the Police to screen prospective employees applying for jobs working with children, such as those in licensed preschools and schools.

We are considering whether to make it mandatory that all persons employed in similar sectors working with children, be screened. There are some practical difficulties with this approach, which we are carefully considering.

The fifth area is the protection for persons accused of crimes, especially those accused of sexual offences.

Mr Raj Joshua Thomas asked about protecting the identity of persons accused of sexual crimes before conviction and he referred to what I said in May this year. There are pros and cons for both approaches. Our current approach is towards open Court proceedings and I had said that it is not set in stone and we will keep the position under review. But as of today, as of now, the current position is open Court proceedings. And while you can cite individual cases, overall, the question is: what helps in advancing, in maintaining rule of law and the justice system.

Mr Sharael Taha commented that the criminal justice system should not be abused by persons who lodge false reports out of spite or mischief. We agree and it is an offence to make false allegations in Court, or lodge false Police reports. Persons who are convicted of making false reports could face severe penalties.

Mr Zhulkarnain Abdul Rahim asked if our amendments to the provisions on Mistake or Ignorance of Fact under section 79, or Mistake or Ignorance of Law under section 79A and Accident in the doing of a Lawful Act under section 80, operate to shift the burden of proof and whether there are safeguards to prevent the accused from abusing these provisions.

These amendments are not meant to change the general principles on burden of proof. Let me illustrate with an example.

Suppose the accused is charged with theft of a watch, the offence of theft has the fault element of dishonesty, which the Prosecution must prove beyond a reasonable doubt and I do not think there is any question on that. Suppose the accused claims a mistake of fact that he mistakenly believed that the watch was his, he needs to show that to the Court.

But the burden remains on the Prosecution. Overall, after taking into account the different facts and different parties in a case may have the burden of proving specific facts, the Prosecution has to show to the Court that the accused had acted dishonestly.

Mr Murali Pillai spoke on the defence of unsoundness of mind under section 84 and suggested for the defence to be broadened in two ways.

One, to cover volitional disorders. But this was covered in the 2019 Penal Code amendments. Under section 84(c), nothing is an offence which is done by a person who, at the time of doing it, by reason of unsoundness of mind, is completely deprived of any power to control his actions.

We are quite cautious about further expanding the defence to cover persons whose mental disorder impaired their control over their actions, but who retained some control over their actions despite their mental disorder. In principle, a person who retains some power to control his actions, but does not do so, remains blameworthy and should face the appropriate legal consequences as opposed to a full acquittal.

Mr Pillai also suggested that section 84(b) be amended to apply disjunctively, instead of conjunctively. In other words, to be acquitted under this defence, the accused person needs only to show either that he was incapable of knowing that what he was doing was wrong by the ordinary standards of reasonable and honest persons, or that he was incapable of knowing that it was wrong as contrary to the law.

We considered this issue during the last review of the Penal Code in 2019. Our policy position was that the requirements should be conjunctive. Just because a person was incapable of knowing that his action was contrary to law does not mean that we should avail the defence to them.

Mr Pillai said that an acquittal due to the defence of unsoundness of mind would be a Pyrrhic victory, as the accused will be ordered by the Minister to be kept in safe custody, which usually means a psychiatric institution "during the President's pleasure".

The reasons why that is done is that if he is released out, the person may go out and do more harm. And there is also a significance to a conviction. It is a finding that a person is guilty and should be appropriately punished. We are not narrowing the ambit of the defence.

Prior to the 2019 amendments, the legal position on whether a conjunctive or disjunctive reading should be applied was unclear. This ambiguity was acknowledged by the PCRC. We sought to clarify this in 2019 in favour of a conjunctive reading and are making it even clearer now.

Even if an accused person does not meet the threshold of unsoundness of mind under section 84, the Court will still consider the evidence on the person's mental condition in determining what the appropriate sentence should be.

Finally, Mr Pillai made the point that section 84 should be broadened in the way that he suggested, so that a person can continue to be detained and treated for as long as he remains a danger to himself and the public, instead of having to release him into the community after completing his imprisonment term.

During imprisonment, prisoners with serious mental disorders receive treatment by professionals from both the Prisons and the Institute of Mental Health, or IMH. When prisoners are due to be released, those whose conditions remain severe enough to warrant immediate follow-up are assessed directly by IMH. IMH may decide to detain the individuals further at IMH under the provisions of the Mental Health (Care and Treatment) Act.

IMH can act in those ways and the Act allows for the detention of a person at IMH for treatment if he is suffering from a mental disorder which warrants his detention at IMH for treatment; and it is in the interests of the health or safety of the person or for the protection of other persons, that he should be detained. In less severe cases, Prisons may make referrals to IMH or polyclinics for follow-up care, after the offender's release from prison.

But ultimately, this relates to public safety and protection, which is a separate issue from that of criminal responsibility, which is what section 84 is basically concerned with.

Mr Pillai cited the case of Public Prosecutor v Dolah Bin Omar, to suggest that the defence of unsoundness of mind should be broadened. In that case, the unsoundness of mind defence was not pleaded. The lawyer for the accused and the Judge both accepted that on the evidence, the accused's mental condition did not come within the rubric of unsoundness of mind defence. There is nothing to indicate that the accused would have qualified for the defence, regardless of whether a disjunctive or conjunctive reading is to be applied.

Mr Thomas suggested including a definition or illustrations to make clear what "genital region" refers to. The term "genital region" is currently used in existing provisions to define child abuse material and there have not been concerns raised over the interpretation of this term so far. So, there is a fair degree of clarity on it and we do not expect that there will be difficulty in interpreting the term in the context of the offence of voyeurism. But if such difficulties arise, we will relook at this.

Mr Louis Ng sought clarifications on our proposals to update older terms in the Penal Code, say, replacing the word "malice" with the phrase with "intent to cause injury".

To clarify, the phrase "intent to cause injury" relates or refers to the offender's mental state. Therefore, an offender may be found to have intended to cause injury, even if he had not succeeded in causing the specific type of injury intended or injuring the intended victim.

As stated in the definition of "injury", any harm that is illegally caused to the victim, in the mind, will amount to an injury. It is not necessary for the harm to take the form of a psychiatric or mental disorder, for there to be an injury.

The Courts will have to decide in each case, based on the circumstances, whether there is harm that is illegally caused to the victim's mind. Feelings of harassment or distress may, depending on the circumstances, satisfy this test.

Mr Zhulkarnain sought clarification on who section 304C targets. Section 304 sets out the offence of causing or allowing the death of a child below 14 years of age, or a domestic worker, or a vulnerable person in the same household. And Members will realise, a child under 14 years old as well as a domestic worker can broadly be classified as vulnerable persons as well. I spoke about this earlier in the House, I think, in March or perhaps earlier.

This offence deals with situations where two or more persons were in a position to cause the death of the victim, but both deny that they were the ones who caused the death. Frequently, we have come across cases, child, five years old or six years old, scalded, beaten up, bones broken, brought to the hospital, dead and some story is given. And both parents, and sometimes, it is the step parent that denies responsibility. This provision will cover such situations because if they did not do it, nevertheless, they knew it was happening and they had a duty to protect the child.

Sometimes, it is very difficult to prove in Court who committed the abuse and who permitted the abuse. With such ambiguity, a perverse result that both get acquitted on the basis that the case against neither can be proven beyond reasonable doubt, that is a travesty of justice.

So, we introduced section 304C in 2019 to allow us to deal with persons and not just persons who abused a victim and caused his/her death, but also persons who stood by and allowed the abuse.

Sir, I believe I have responded to the issues raised by Members. I thank Members for their support of the Bill.

Mr Speaker: Clarifications? Mr Murali Pillai.

2.45 pm

Mr Murali Pillai: Mr Speaker, I thank the hon Minister for his comprehensive answer to the points I made in my speech. I would like to make a point of clarification.

In my delivered speech, I did not make reference to a case of a 49-year-old malingering to get over the age of 50 so as to avoid the sentence of caning. Notwithstanding that, I appreciate the point he makes that any cut-off age that we would have, would not completely resolved the issue.

Mr Speaker: Any other clarifications?

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [Mr K Shanmugam].

Bill considered in Committee; reported without amendment; read a Third time and passed.