Limiting Use of Section 409 of Penal Code to Professional Agents

5 Mr Murali Pillai asked the Minister for Home Affairs (a) whether there are any persons convicted under section 409 of the Penal Code who are currently serving imprisonment sentences based on the interpretation of the law as it existed before the decision of the Court of Appeal of 1 February 2018 limiting the use of the said provision to professional agents; and (b) if so, what steps will the Government take in respect of the sentences of these persons.

The Minister for Home Affairs (Mr K Shanmugam): Thank you, Sir. There are now 12 persons serving sentences for offences under section 409 of the Penal Code. [Please refer to "Clarification by Minister for Home Affairs", Official Report, 20 March 2018, Vol 94, Issue No 70.]

They were convicted and sentenced before the High Court reviewed and changed the interpretation of the law regarding section 409. The Public Prosecutor does not intend to file any applications in respect of them.

Mr Murali Pillai (Bukit Batok): I thank the hon Minister for his answer. I have two supplementary questions.

First, is the approach taken in these 12 cases different from the approach taken in the well-known case issued in September 2015, when the prosecution actually appealed on the basis that a sentence was manifestly excessive? The reason for the prosecution doing so is explained as that it is a stakeholder in the criminal justice system and it must also do its part to ensure a fair and proportionate sentence.

Second, may I ask whether the Home Detention Scheme and the Remission Scheme would be afforded to the persons involved in this Court of Appeal decision as well as the 12 cases that the hon Minister mentioned? If so, would the Court of Appeal decision be a factor for the Executive to consider in making an appropriate determination in these schemes?

Mr K Shanmugam: The first question is, by reference, to Airocean.

Mr Murali Pillai: May I clarify, it is not the Airocean case. The Airocean case dealt with an acquittal issue. I have here an article from Channel NewsAsia published on the —

Mr K Shanmugam: Where the Public Prosecutor appealed? You are referring to the case where the Public Prosecutor appealed?

Mr Murali Pillai: That is so, Sir.

Mr K Shanmugam: Okay. By reference to that case or by reference to the Airocean case, whichever, the position here is slightly different. Section 409 covers a broad range. Professional agents or agents form only one category. It covers public servants. It covers various others.

For example, if you look at these 12, three of them are public servants. [Please refer to "Clarification by Minister for Home Affairs", Official Report, 20 March 2018, Vol 94, Issue 70, Clarification section.] So, it is very different. They were convicted qua public servants; they hold very different positions, senior to junior. There is no intention of doing anything about them. The High Court and Court of Appeal's interpretations do not affect them. One is an attorney and another eight are agents of various kinds, like insurance agents, real estate agents. So, you can see that the principles applied in the context of Airocean for revision as well as for appeal in the other case, do not apply.

If I may go further, we have talked about 16 cases, at least, where directors, qua directors, have been convicted in the past 40 years. There have been more than that; but 16 reported cases. What would hypothetically be the position if one or more of them would be serving sentences now? I think that can be looked at; you can argue it either way. But if you look at, for example, the last case on revision. In Airocean, one director pleaded guilty. It was a conviction under the Securities and Futures Act (SFA). It was a prosecution under the SFA. The others claimed trial. At trial, eventually, they were held to be not guilty because the fact that was said to not have been put out was held by the Court to be not material. So, you can imagine, therefore, on the very same facts, the earlier conviction, in all fairness, ought not to stand.

Here, if any persons are serving as directors, they would have been convicted properly on the facts and on the law as had been applied by the Courts. Whether subsequently a change in law should, therefore, apply to anyone who is currently serving, or any of the several cases which have been dealt with over 40 years, there is, as Mr Pillai would appreciate, a lot of learning on that.

The Member's second question was on Home Detention. Is the Member asking by reference to these 12 cases or the City Harvest cases? City Harvest? Okay.

On the 12, I will need to go and check. I think some may already be serving under Home Detention because there are some principles which are laid out under the rules. As for the City Harvest case, we looked at the principles that are applicable and we took advice from AGC as to whether, under the law, they would be entitled to community-based programmes, which will include Home Detention. We have now a policy and, if that policy is applied by the Commissioner of Prisons, those convicted in the City Harvest case will not qualify for Home Detention. It is something to be decided by the Commissioner of Prisons. He has got the discretion. But if the policy is applied, and that policy has been cleared with AGC, then they will not qualify.