j AN – JUN 2009 JUN – AN

Crime And Sentencing An Investigation

MICA (P) 226/04/2008 JAN – JUN 2009 | Academy of Law UP CLOSE 04 Mr K S Rajah SC, Mr Sant Singh SC and Mr on the criminal landscape and life at the criminal bar. 13 The Honourable Attorney-General Professor shares his views on sentencing. 04 in Focus 15 Dubious honour roll for the top ten most significant criminal cases in the past 15 years. Cover 22 A timely review on white-collar crime, Mediactive its history and future trend. 30 Should judicial mercy have a place in sentencing? 35 CSI: Singapore – Haven’t you always wanted to know what happens behind closed doors in the forensics 22 laboratory? 44 Historical overview of the and the public policy rationale behind its reform. 52 Discussion on the background of two new sexual offences, and the problems faced in enforcing the new laws.

SIDE BAR 56 Being a greenhorn in the Bar is no mitigating factor, as Adrian Tan rightly points out. 44 60 A review of Sentencing Principles in Singapore, a forthcoming title from Academy Publishing.

BUZZ 63 The Honourable K G Balakrishanan, Chief Justice of , grants Inter Se an interview prior to the Annual Lecture 2008. 66 Interacting with the new integrated 56 Electronic Litigation System. JANUARY– JUNE 2009 Inter Se is a bi-annual publication of: If he has a conscience he will suffer for his mistake. That will be punishment – as well as the prison. 

Justice is a fundamental tenet of our legal system, and is especially significant in judicial decisions. In many instances, the sentence that is handed down provides one of the few means by which society and the Chief Executive victim are able to receive redress for an injustice. In turn, sentencing Serene Wee decisions are often closely scrutinised by the public, the media, Editor legal practitioners, academics and, to some extent, the offender, to Elizabeth Sheares ascertain whether a sentence has been fairly passed in accordance

Consultant Editor with established sentencing principles. Anita Parkash The principles used by the court, namely, retribution, deterrence, rehabilitation and protection, govern any sentencing decision. The Editorial Committee task of sentencing is complex and involves objectively recognising Ranald Or Bala Shunmugam the severity of the offence under the circumstances, and injecting the Foo Kim Leng subjective (offender-specific) aggravating or mitigating factors. The complexity stems from the subjective human element present 1 Supreme Court Lane, Level 6, from the point the crime is committed to the sentence imposed. Singapore 178879. The final outcome hinges on the charges framed, the documents Tel: 6332 4388 Fax: 6334 4940 disclosed, the evidence gathered, the sentencing principle employed, © 2009 the offender circumstances, etc. To confound it all, the Legislature

All rights reserved. No part of this provides guidance only in the form of a spectrum of culpability publication may be reproduced, stored in any retrieval system, (a range of possible outcomes); the final decision is left to judicial or transmitted, in any form or by discretion. This in itself raises broader issues. Should, say, judicial any means, whether electronic or mechanical, including photocopying mercy play a part? How best to accommodate competing sentencing and recording, without the permission of the copyright holder. principles? Perhaps, the court’s adherence to one principle is a

Views expressed by the contributors reflection of society’s mores at that point in time. The values the are not necessarily those of the Academy, Academy Publishing nor community upholds changes with time. How do we thus ensure the Editors. Whilst every effort consistency, proportionality and fairness? has been made to ensure that the information contained within The difficulties in sentencing are a manifestation of the is correct, neither the Academy, Academy Publishing, the contributors challenging nature of . Even as we were finalising this nor the Editors can accept any responsibility for any errors or issue, a proposed Criminal Procedure Code Bill is threatening to alter omissions or for any consequences resulting therefrom. the legal landscape. This issue on crime and sentencing offers a broad ...... range of articles on forensic evidence, the escalating sophistication in Advertising Sales white-collar offences (and crime in general), the underlying changing Florence Long values of society as espoused in the Penal Code amendments, in Mobile 9382 0381 addition to the illuminating interviews with senior criminal . [email protected] We hope you will read this issue. It would be a crime not to! Publishing Consultant Lyon Low Warm regards,

Design Eunice Gracilia Jonathan Cai

mediactive Bala Shunmugam Mediactive Pte Ltd 65 Ubi Crescent, #06-07, Hola Centre,  Fyodor Dostoevsky, Crime and Punishment (Bantham Classics, 1996) at p 246. Singapore0 • 408559. Tel: 6846 4168 Up Close

As a veteran member of the Men criminal bar, would you care to share with the newer members your experiences and impressions as Behind a criminal law practitioner? What of your criminal law career have you felt the Bar to be the most rewarding? Conversely, what were the lowest points? Three senior members KR: My experiences at the criminal of the criminal bar, Mr K s rajah SC (“KR”), bar are a memorable one. I was a Mr Sant Singh SC (“SS”) Deputy Public Prosecutor. I have also and Mr Subhas Anandan acted as defence counsel and sat in (“SA”), respond candidly Judgment. about their experiences I was a Deputy Public Prosecutor at a and impressions of an time when the Singapore criminal bar had unforgiving criminal practice. big names. David Marshall, T T Rajah were household names. They were fearless and forceful. In court they were masters of both fact and the law. Deputy Public Prosecutors had to learn quickly if they wanted to avoid being told that they were not up to the mark. There was no such thing as plea-bargaining. The prosecutors and the court were both mindful of every man’s right to his day in court. Representations were made very often at informal meetings at the chambers. Prosecutors, police officers and defence counsel could all be pulled up sharply by the judges both at the High Court and at the lower courts if they became overzealous.

0 | Up Close

The Prosecution did not take a position on are all upholding human values sentences. Very often it was limited to stating when the victim and his family want previous convictions of a similar nature, if any. revenge. Fair prosecution ensures Previous antecedents were given a restricted that the punishment philosophy is meaning. It was generally accepted that it not an eye for an eye which leads to was the judge’s primary role to decide on many blind men, or one-eyed men the appropriate sentence. Prosecution leaves in society. sentencing to the court except when asked The lowest point was reached to assist the court on a certain matter. The on reflection when the concept of Prosecution as the party prosecuting is not the a person being “factually guilty” best party to form a view on a fair sentence became respectable, ignoring the after a mitigation plea. The maximum sentence fact that life and liberty can only prescribed is the best guideline. be deprived “according to law” If the Prosecution is not satisfied with the and not when the police or the sentence, an appeal is filed against the sentence. Prosecution come to the conclusion If the Prosecution’s appeal lacks merit, there was that a person is “factually guilty”. a very real possibility of the Prosecution being The most rewarding part of chastised. my career as a prosecutor was The media did not sensationalise cases. the knowledge that you do not This was partly due to the fact that we had jury advance facts and theories that are trials and defence counsel would not hesitate to not supported by statements in complain to the court that their cases had been the file that have been voluntarily prejudiced by the newspaper reports of ongoing obtained. The knowledge that when proceedings or proceedings likely to appear in a case has to be proved beyond a court. reasonable doubt leaves open the Statements made to the police became possibility of mistakes being made admissible only after the CPC (Criminal for the simple reason that persons Procedure Code) was amended. Confessions are not convicted when there is no were always recorded by a Magistrate. Where doubt at all. Punishing an innocent a police officer produces an accused before person has always haunted the the Magistrate to record a confession and the common law world. It is possible Magistrate finds that the accused is not disposed for a guilty man to be acquitted to making a confession voluntarily, the accused but my experience is that when would be remanded in prison and not at the a guilty man is acquitted it does police station. not take long before he commits A criminal practice is not one where big another offence and ends up being money is made. The compensation lies in the fact prosecuted. We must also not be that the courts, Prosecution and the practitioner too quick to jump to the conclusion

| 0 Up Close

that when a judge takes greater pains to scrutinise the evidence before he convicts a person of a capital offence, he is against the death punishment.

SS: The practice of criminal law can be daunting and is definitely demanding. It takes its toll on the accused and his/her family. The is looked upon by these persons as their saviour. It is not in every case that the accused denies committing the act. Clockwise In these cases, counsel usually From Top: raise defences like diminished Mr K S Rajah SC, Mr Sant Singh SC responsibility, self-defence, and Mr Subhas provocation. The difficulty arises Anandan. when the accused’s defence is that he did not commit the act. If these instructions are true, then clearly the offence, you are ethically bound not to put he or she is innocent and not only forward a defence contrary to your instructions. that, the real perpetrator of the This will usually resolve any ethical issues you crime is at large! My experience may encounter. In difficult situations, or when in has been not to be a moral judge doubt, consult your colleagues or seniors. or arbitrator of the facts, ie, the Other than this, I have found criminal guilt or otherwise of the accused. practice to be challenging, rewarding and This is the function of the court. satisfying. Needless to say, it involves hard work The legal ethics and requirement and sometimes long hours, especially when you of a criminal barrister is to take his are in trial. It also involves honing your skills in client’s instructions and if the client harnessing the facts and law, and applying the instructs that he did not commit the law to the facts of the case. It is often forgotten offence, then you are duty bound to that this is only half the battle. defend him or her. Conversely, if he The equally important function of an instructs you that he has committed effective lawyer is how you present your case in

0 | Up Close

court. Your primary function is to persuade the Criminal law has always been seen court and your efforts will be better appreciated as a demanding practice area of by the court if you present your case clearly, law, hence, the dwindling number concisely and with integrity. Your reward as a of criminal law practitioners. Has criminal lawyer is primarily acceptance by your this view changed over the years? peers, recognition by the court and respect How has the landscape evolved over from your opponents (usually hard earned). time? What would your wish list for When all this happens, the financial rewards the criminal profession of the future will automatically follow and you will have the be? added satisfaction that you are helping a fellow KR: Litigation is a demanding area individual who has found himself in difficulty of practice. It is made worse at with the law. You will also have the forensic the criminal bar because of the satisfaction of a job well done, be it an effective consequences that follow upon cross examination, a succinct submission or a conviction. In other parts of the compelling mitigation plea. The satisfaction you common law world, the practice will have in saving a person (who has instructed adopted in civil litigation with you that he is innocent) from jail or even the respect to discovery is customary. gallows, or keeping a young mother from jail by Pleadings are also helpful. In an effective mitigation plea, is hard to describe criminal practice, especially at the in words and cannot be measured in monetary lower courts, the only material terms. that is made available is a copy of the charge sheet and the first SA: When I first started my career as a lawyer in information report. In some cases criminal law, there were only very few lawyers even the first information report is practising in the criminal bar. The playing field withheld. was somewhat even. This changed after the At the criminal bar, the Privy Council case of Hua Tua Tow and the new Prosecution does not make it directions and the interpretations that were fair by disclosing its case to the given to some cases by the courts that made defence. A minimum of particulars defence work difficult. The playing field became is in the charge. The specimen so uneven. charges in the CPC are not meant Winning a case is not really the most to be binding. The Prosecution rewarding experience, feeling that you had a fair tends to follow the precedents in and impartial trial is. the CPC and not give particulars The lowest part of my career is realising that a even when there is an application person has been convicted and found guilty only for further particulars and the because the law was lopsided and not because particulars can be included or the evidence was against him. ordered by the courts.

| 0 Up Close

Defending is made oppressive Counsel is obliged to make known to his client by having many charges. The what would happen on conviction. It becomes a Prosecution wants to make depressing exercise when a “fair-go” at testing the it plain that upon conviction, evidence of the Prosecutions’ case is not made as sentences would be consecutive a matter of course. Sentences being increased on in at least two charges. Courts appeal is unfair. Has there been any case where the rarely direct the Prosecution to sentence has been reduced on a public prosecutor’s proceed on, say, three of the appeal? We have one level of appeals. It should charges and stand down the be possible to appeal to a single Judge of Appeal other charges. It was done in my against a Magistrate’s appeal that is dismissed by a time. High Court judge.

0 | Up Close

SS: Any litigation practice is demanding. However, and it does not help matters if when the life and liberty of an individual is at stake, he sees his peers earning huge as in a criminal trial, the burden on the defending salaries as corporate lawyers. counsel can be quite daunting. Timothy Evans, who However, there will always be was hanged in England before the death penalty bright young lawyers who graduate was abolished, was posthumously pardoned. The with a burning desire to become constant thought in the mind of any criminal lawyer criminal litigators. Firstly, one way is always “Have I done all that I possibly can in the enthusiasm of these young the defence of the accused?” This is a perennial lawyers can be tapped is for the question over the years and is not by itself the bigger law firms to encourage their reason or main reason why the criminal bar in younger lawyers to practise at the Singapore is dwindling. The following are probably criminal bar by doing pro bono the reasons: work and recognise such work as (a) unlike earlier generations of a contribution litigation lawyers, younger The need to send signals to their billing lawyers now have options which requirement. In their predecessors did not have. has become a mantra not recent times, The prevailing culture in my time only for some prosecutors there is an was straight to practice after evolving culture graduation; but also acceptable to abroad and in (b) practice then was laissez-faire, judicial officers. The best Singapore to unlike the constant demands of encourage young today on the time of lawyers. signal is sent by making sure lawyers to do pro Documents then were delivered all offenders end up being bono work. as fast as the office boy or prosecuted. Secondly, thamby could deliver them and the practice not at a click of a few buttons; of criminal law (c) to compound matters, until a few years ago the should be reviewed to address demands made of lawyers in terms of timelines the misgivings of the criminal by the court did not help matters: this issue has bar so that young lawyers will be been resolved but has to be constantly reviewed; encouraged to practise at the and criminal bar. The wish list of the (d) finally, an impediment to young lawyers wanting criminal bar has been canvassed to be criminal lawyers is the belief that criminal for some time and more recently by practice is a hard grind, not to mention that the President of the Law Society in “crime does not pay” both for the accused and January 2008 at the Opening of the the lawyer. It takes years for a criminal lawyer to Legal Year. Essentially it involves hone his advocacy skills and to be recognised, the following matters:

| 0 Up Close

(i) provisions for discovery of An often heard comment from criminal practitioners is documents and statements in the perception that the criminal justice system is skewed Subordinate Court trials, as is towards the side of the Prosecution. Is there any truth the case in High Court trials; in this? (ii) provisions be enacted to put KR: There is a great deal of truth in the perception in place a protocol for the that the Prosecution has all the cards mostly because recording of statements from the courts are not sympathetic with applications accused persons and the for discovery. PTCs (pre-trial conferences) are not furnishing of the statements to as helpful as they can be with discovery. There are counsel; and no guidelines. The High Court has not spelt out (iii) furnishing of unused materials any guidelines. It is wrong to imagine that if there to the Defence. is discovery, the lawyer and his client will use the statements to harm or threaten witnesses. They SA: The practice of criminal law do not do it in civil cases. The days when secret has always been difficult because societies could intimidate witnesses with impunity the law made it difficult. The man are gone. They are haunted by action under s 55 of in the street cannot be blamed for the Criminal Law (Temporary Provisions) Act. thinking that the law is lopsided There may, of course, be special cases when and against the accused. The discovery may not be desirable in the national number of criminal lawyers is interest. Where there are such cases, the giving of increasing and I wish the system the information of a sensitive nature is undesirable. will be fairer to the accused, The Prosecution can always apply to the court to and this in turn will attract more deny the supply of statements to the accused. lawyers to take up criminal In any case, not supplying all the statements the practice. Nobody wants to go to accused had made to the police in the course of court and lose all the time. investigations is not supported by decided cases The law is made difficult when in the High Court, but is not followed by the lower the Prosecution is entitled not courts. Lawyers are partly to blame. They do not to give the long statements of assert the rights of the accused as forcefully as the accused to the Defence. It is David Marshall and T T Rajah would have done. unfair and unreasonable for the accused to be deprived of his SS: The complaint of the criminal bar has always own statements that he made been the lack of discovery at the Subordinate maybe a year ago before the Courts, where the vast majority of criminal cases are trial; whilst the Prosecution has heard. The CPC, which we inherited as a Colony, has those statements which they can not been amended in this regard for a long time. use to impeach the credit of the This issue must be examined. In , the CPC accused. has been recently amended to allow for discovery in

10 | Up Close

criminal trials. Other Commonwealth and common Thirdly, the Defence has law jurisdictions have allowed discovery for a no access to unused materials long time. There is no conceivable reason for not gathered in the course of police allowing discovery in the Subordinate Courts, after investigations. The Prosecution is all, it is allowed in High Court trials in Singapore. not obliged to furnish the Defence The second complaint is the recording of any such materials even though statements from accused persons. There are no it may assist the defence of the protocols in place. This is not the practice in other accused. Whilst it could be said common law jurisdictions. In Malaysia, the Attorney- that the Prosecution is not bound General has put a moratorium on the use of accused to assist the accused or is not privy statements. Protocols are all the more necessary to the defence of the accused, it as an accused person can be convicted: (a) on his seems to be contrary to all rules retracted statement; and (b) on the confession of transparency or fair play. The of a co-accused and in the absence of any other English experience in the infamous evidence. case of the Guildford Four is a salutary example of how an injustice can be perpetrated.

SA: Of course. One just has to analyse the law and its practise in Singapore to confirm that the system is definitely slanted towards the side of the Prosecution. When I first started practice as a criminal lawyer, the accused was entitled to remain silent when he was interrogated or asked what his defence is. Today, if you remain silent and do not disclose your

| 11 Up Close

defence, the court can infer adverse for practical purposes, all over when statements or inference against the accused. confessions made to police officers at police stations – Years ago, the accused was allowed in the course of investigations after the accused has to make a statement from the dock, been remanded for a long period to assist the police today he is not allowed to do so, with their investigation – becomes as good as evidence and if he refuses to give evidence given on oath in court. The practice of getting suspects in his favour, the court again can to re-enact crimes, with the media recording the event, infer adverse inference against is inconsistent with the presumption of innocence. him. Counsel is denied access to Handcuffing a doctor who is charged with an the accused after his arrest. The offence under the Income Tax Act after he has accused is kept in custody up to pleaded guilty and punished is calculated to humiliate three weeks without his family or respectable citizens in addition to punishing him. The lawyer having access to him. The need to send signals has become a mantra not only Defence counsel is only allowed to for some prosecutors but also acceptable to judicial see his client after the “so called” officers. The best signal is sent by making sure all investigation is over. In many offenders end up being prosecuted. cases, it means that the police have managed to obtain confessions SS: I do not foresee the winds of change in terms from the accused. of liberalisation of criminal practice in Singapore. The majority of the criminal offences tried in the With liberalisation being an inevitable Subordinate and High Courts do not have the change to the legal landscape, do you significant fees across the board which justify foreign foresee this overflowing into criminal counsel or firms setting up practice here. The few practice in time? And if so, what do cases (commercial frauds and money laundering cases) you think will be the repercussions for where complex questions of law and facts are involved criminal practice? can be handled professionally and competently by KR: I see liberalisation as being Singaporean lawyers and firms. inevitable because the pendulum has swung from being fair and SA: Yes, but I do not know whether the change is perhaps liberal to the other end of inevitable or not. I have been hearing about changes the pendulum’s swing. Discovery to the system for the past 20 years and I am still must take place. The recording of waiting. If the change does come about, it will police statements must be seen to definitely improve the quality of criminal justice in be fair. Singapore. Police statements will be recorded with cameras recording Inter Se thanks Mr K S Rajah SC, Mr Sant Singh SC, the entire process. We cannot have and Mr Subhas Anandan for their time in granting us a situation where criminal trials are, this interview.

12 | Up Close Upholding the Rule of Law The Honourable Attorney-General Professor Walter Woon Cheong Ming obliges Inter Se with a short interview on his dual role as the Government’s legal adviser and a Public Prosecutor.

to the instructions provided by Ministries; and (c) the International Affairs Division advises the Government on , participates in international negotiations and, where necessary, assists in the settlement of international disputes. This is only a brief and very general sketch of what the AGC does. The details of AGC’s work would fill much more than the space available here. The second role of the AG is that of Public Prosecutor. Article 35(8) of the Constitution provides that “the Attorney- General shall have power, Now that you’ve had some time to sink exercisable at his discretion, to your teeth into the job, what would you institute, conduct or discontinue say is the Attorney-General’s (“AG’s”) any proceedings for any offence”. role in the Singapore context? In matters of prosecution, the AGC The AG’s role is two-fold. Firstly, is independent of the Government. he is the legal adviser to the This is a necessary check on Government. Specifically, the politically-motivated prosecutions. Attorney-General’s Chambers (“AGC”) is set up so that (a) the Do you think consistency and certainty Civil Division provides advice in the law are compromised when, in and legal representation to the sentencing, courts consider competing Government (not statutory boards principles (ie, retribution, deterrence, or government-linked companies); rehabilitation and protection) and (b) the Legislation and Law Reform decide which should have the greatest Division drafts legislation according weight in each factual matrix? In your

| 13 Up Close

opinion, when should judicial mercy be not be expected that every accused with exercised, if at all? a sob story will get off lightly. The sentencing principles do not affect consistency and certainty. On the You said in an interview with The New contrary, they ensure that there is an Paper (13 April 2008), “I am not, by nature, intellectually-coherent framework within an advocate. I am an academic by nature”. which the sentencing process occurs. However, you have already made several Sentences cannot be meted out on a appearances in court. What factors do you whim; they have to be justified. The consider in deciding which cases to personally justification for any particular sentence argue? lies in the established sentencing I have appeared in six cases since January principles. 2007: thrice in the Court of Appeal (one The court has the prerogative of civil appeal and two criminal appeals), showing mercy where it is appropriate. once in an appeal from the Subordinate There should be no confusion between Courts and twice in the High Court (one the roles of the Prosecution and the case involving a vexatious litigant and court. The Prosecution will consider the other concerning contempt of court). whether or not a particular person should Before the current spate, the last time be charged, and if so, on what charges. I had appeared in court was in 1995. If it is decided that no charges should be Advocacy is a skill that requires constant preferred, the accused gets off without practice. The first few cases I argued having to appear before a judge. In were done basically in order to get back general, there have to be strong reasons into the groove. After a 12-year hiatus, before the Prosecution will drop the I had become rusty. Going forward, I will charges. Facts tending to show that the argue cases which concern important accused did not commit the actus reus or issues of law or which require the which diminish the accused’s culpability personal attention of the AG (the recent (eg, mental problems) would be relevant contempt action against the publishers of in this context. Facts tending to evoke Asia being a case sympathy for the accused (his personal in point). circumstances, remorse, dependents, etc) are not usually factors that would Would you recommend the law as a profession justify dropping the charge. However, to your sons? they may be taken into account in Absolutely and without qualification. sentencing – the judge is entitled to show judicial mercy. Having said that, there Inter Se thanks The Honourable is always a balance that must be struck Attorney-General Professor Walter Woon between justice and mercy, and it should for his time in granting us this interview.

14 | In Focus

Choice Picks

Dominic Nagulendran makes the difficult pick of what he considers are the ten most significant cases since 1993 on various aspects of criminal law and sentencing.

By Dominic Nagulendran, Legal Practitioner

| 15 In Focus

Over the last 15 years, often be longer than if the the appellant’s guilty plea, there has been an sentencing judge was to the charge was sustainable enormous output of High impose an immediate term based on the statement of Court (“HC”) and Court of imprisonment. facts. A five-judge CA was of Appeal (“CA”) written This case appears to thereafter convened to decisions, dealing with be the only reported HC hear further arguments. many aspects of criminal decision that articulates law and procedure, the sentencing principle Significance which has contributed that default terms of This case clearly significantly to our local imprisonment are intended establishes that the criminal law jurisprudence. to prevent evasion of recording of a statement Here are ten such cases. the fines imposed, not of facts by the court to punish those who are following an accused’s plea LOW MENG CHAY v PUBLIC genuinely unable to pay. of guilt, which began as a PROSECUTOR The court established matter of practice to assist [1993] 1 SLR 569 the point that when it the judge to determine Brief background was unambiguously clear the appropriate sentence, The appellant had been that a defendant cannot now places a legal duty convicted for many pay a fine, realistic and on the court to record and offences under the Trade reasonable though it may scrutinise the statement Marks Act 1998 (No 46 of be, the fine should not of facts for the purpose 1998). In all, as a result be imposed even though of ensuring that all the of default sentences, the court would have elements of the charge are he faced an aggregate preferred to impose a fine made out therein. imprisonment term of rather than a short term of Further, it is open to seven years, four months imprisonment. the CA, on account of a and 23 days on the charges particular provision of appealed against. Upon his MOK SWEE KOK v PUBLIC the Supreme Court of appeal, the sentences were PROSECUTOR Judicature Act (Cap 322, drastically reduced. [1994] 3 SLR 140 1993 Rev Ed) (and not Brief background by virtue of a revisionary Significance The appellant had pleaded jurisdiction, for it has Where the sentence to be guilty in the HC to a charge no such powers) to re- meted out is only a fine, of having abetted robbery open the conviction of an the default sentence to be with hurt. In the course of accused who had pleaded imposed on an accused the appeal to the CA, the guilty if it had grave as a result of him being judges had grave doubts doubts as to the legality of unable to pay the fine may as to whether, in spite of his conviction.

16 | In Focus

PUBLIC PROSECUTOR v This case, through the admitted after a voir dire KHOO YONG HAK use of this two-part test, (trial-within-a-trial). On [1995] 2 SLR 283 heralded a new approach in appeal, he was acquitted on Brief background determining if a transaction all charges. The respondent was a was corrupt. It has been medical practitioner who subsequently clarified that Significance was acquitted in the District whether a transaction had While the CA had previously Court of corruptly giving a “corrupt element” was an accepted that an accused’s gratification to a bus driver objective inquiry and that statement which had been to induce him to bring it was essentially based on admitted in evidence may be more foreign workers to the the ordinary standard of the disregarded if subsequent respondent’s clinic for the reasonable man and this evidence raised doubt as to workers’ pre-employment question had to be answered its voluntariness, the HC’s medical examinations. only after the court had pointed call for vigilance inferred what the accused in this case regarding Significance intended when he entered the voluntariness of an This case laid down for the into the transaction. accused’s statement should first time a two-part test for As for the test of “corrupt be constantly remembered corruption that is now settled intention”, it was held that in light of the significance law. Although this case did it referred to the subjective such statements have in our not involve an offence of knowledge of the accused criminal trial process. corruption by an agent in and CJ (as Yong Pung How CJ (as relation to his principal’s he then was) in a subsequent he then was) held that affairs, the test has since case stated that to prevent the trial judge’s duty to been held to be similarly confusion in future, the term scrutinise the voluntariness applicable. “guilty knowledge” rather of any statement made by an Drawing on the fact that than “corrupt intention” accused does not end on the the adverb “corruptly” serves should be used. voir dire. The judge, he said, to qualify the offence, the should remain alert to any court held, without seeking NEO AH SOI v PUBLIC indication that the statement to define “corruptly”, that for PROSECUTOR had been involuntary after the the offence to be made out, [1996] 1 SLR 534 voir dire. it had to be settled beyond Brief background Further, it was made clear reasonable doubt there was The appellant was convicted that the duty to ensure the a “corrupt element” in the on 23 charges of cheating. voluntariness of statements transaction and a “corrupt The evidence against and confessions made by an intent” on the part of the him was effectively his accused was one of utmost person giving. confessions that were importance in a criminal trial.

| 17 In Focus

The court would not hesitate his sentence of life Significance to exclude or disregard the imprisonment was to The CA for the first time statement if there is any run after the expiration ruled that appearance of involuntariness. of his sentence for meant life for the rest of a a robbery with hurt person’s natural life unless ABDUL NASIR BIN AMER charge. there was something to the HAMSAH v PUBLIC contrary in the statute. As a PROSECUTOR [1997] 3 SLR 643 result of this case, legislation Brief background was put in place for a Life The appellant had appealed Imprisonment Review Board against an order that to look into cases of

18 | In Focus

prisoners who have served at can be available to an accused charged for a strict least 20 years’ imprisonment liability offence. Such an approach was in accordance of their life sentence. with the Canadian position. Of further importance, in ruling that the appellant PUBLIC PROSECUTOR v LIM POH LYE was not to be affected by [2005] 4 SLR 582 this first-time interpretation, Brief background the court applied reasoning The appellants were convicted by the CA of analogous with the principle in furtherance of a common intention with a third of prospective overruling, person. The fatal wound was a cut of the victim’s for it would be contrary to femoral vein which was as a result of a stab in his what was reasonable and thigh. legitimately expected for the accused to serve the sentence Significance as now newly interpreted. The CA clarified the law with regard to the controversial s 300(c) of the Penal Code (Cap 224, MV BALAKRISHNAN v PUBLIC 1985 Rev Ed) wherein a person may be guilty of PROSECUTOR murder even if he did not have the intention to kill [1998] 3 SLR 586 but merely to cause bodily injury. Brief background This case is authority for the proposition that a The appellant had permitted person may be guilty of murder if the particular injury his employee to drive a which eventually caused death in the normal course Class 4 vehicle when the latter of nature was inflicted by the accused intentionally possessed only a Class 3 and not accidentally. driving licence. Further, there The court further clarified that if a “minor injury” was no valid insurance in was intended which would not cause death in the respect of the Class 4 vehicle. normal course of nature, the accused would not be The appellant’s defence was guilty of murder even if a different injury was in fact that he did not know that the caused which would cause death in the ordinary vehicle was a Class 4. course of nature.

Significance TAN KIAM PENG v PUBLIC PROSECUTOR While holding that the [2008] 1 SLR 1 offences were strict liability Brief background offences, the HC accepted, The appellant’s conviction for importing heroin was for what appears to be the upheld by the CA. His defence was that while he first time, that the defence of knew he was importing illegal drugs, he did not know having taken reasonable care the precise nature of the drugs he was carrying.

| 19 In Focus

Significance (like trafficking, possession LEE CHEZ KEE v PUBLIC This case states that the and importing) under the PROSECUTOR famous English case of MDA, knowledge by the [2008] 3 SLR 447 Warner v Metropolitan accused of the specific drug Brief background Police Commissioner [1969] is required (as opposed to The appellant’s conviction 2 AC 256 (“Warner”) is knowing generally that it is a for murder in furtherance of limited application in controlled drug). of a common intention with Singapore and its relevance The case is significant two others was upheld. The should be confined to the in that an accused who two accomplices had been point of general principle is proven (or presumed) separately tried and did relating to the concept to have possession of a not give evidence in the of possession. This case controlled drug may be appellant’s trial. is significant as for a long acquitted of possession time, Warner has been cited by his rebutting the Significance in our local jurisprudence presumption that he Perhaps for the first time without a full appreciation had knowledge of the in a criminal case, all three of the difference in the specific drug found in his appellate judges wrote respective legislation. possession. separate grounds of decision. In the context of the Another significance is However, all the judges were presumption of knowledge that in the scenario where in agreement with regard in the Misuse of Drugs the Prosecution has to to the restatement of the Act (Cap 185, 2001 Rev rely on the presumption law on s 34 of the Penal Ed) (“MDA”), although of possession to prove an Code dealing with common it decided not to reach offence of trafficking, then intention, a provision which a definitive conclusion, it may have the burden of V K Rajah JA said was the CA preferred the proving that the accused “deceiving in its apparent interpretation that it had actual knowledge (or simplicity”. referred to the knowledge is wilfully blind that he has The law was extensively of the accused having possession) of the specific discussed and, importantly, knowledge not only that controlled drug (as opposed it was held that presence at the drug concerned was a to knowing generally that it the scene of the criminal act, controlled drug but also of is a controlled drug). primary or collateral, need the specific drug that was This case also has a no longer be rigidly insisted. found in his possession. detailed discussion of what In a “twin crime” Following from this, constitutes wilful blindness situation, the additional it would appear that which the court states is the mens rea required of the the court preferred the legal equivalent of actual secondary offender is that he position that for offences knowledge. must subjectively know that

20 | In Focus

Significance The CA recognised that there was little authority on how TIC offences are to be reflected in the sentences imposed for the offences actually proceeded with by the Prosecution. This case established that more often than not, when TIC offences feature in a case, the sentence for the offences proceeded with will have to be increased. However, it was not mandatory that the court had to increase the one of his party may likely abiding concern about the sentence imposed for the commit the criminal act unreliability of a co-accused’s offences proceeded with. constituting the collateral confession. It was ultimately left to the offence in furtherance of court’s discretion whether to the common intention of PUBLIC PROSECUTOR v UI consider the TIC offences. carrying out the primary [2008] 4 SLR 500 The CA also held that offence. Brief background it would not be proper By way of dicta, This was an appeal by the for a trial judge to depart Rajah JA notably Prosecution against the from guidance given by commented that the sentence of imprisonment established sentencing present position (that a imposed on the respondent precedents without at the co-accused’s conviction who had pleaded guilty very least giving cogent may be founded entirely to three counts of having reasons as to why they on the confession of a raped his daughter. He should not be applied. co-accused alone under had also consented to A high level of consistency s 30 of the Evidence Act other charges to be taken in sentencing is desirable as (Cap 97, 1997 Rev Ed)) may into consideration for the the presence of consistency have to be reconsidered in purpose of sentencing (“TIC” reflects well on the fairness future in light of the law’s offences). of the legal system.

| 21 In Focus An Occupational Hazard White-Collar Crime By K Anparasan* and Foo Cheow Ming, Legal Practitioners

An overview of what constitutes white-collar crime, with highlights of some of the more significant cases in Singapore and a discussion of possible trends.

WHAT IS WHITE-COLLAR CRIME? The term “white-collar crime” itself has not been defined by judicial decisions in Singapore. It is also a term which has been used almost interchangeably with “corporate crime” or “business crime”. Academics have their differences in trying to define what constitutes corporate or white-collar crime. An American sociologist, Edwin H Sutherland, tried to define “white-collar crime” as “crime committed by person of respectability and high social status in the course of his occupation”. In 1970, a sociologist, Edelhertz, proposed another definition as “illegal acts committed by non-physical means and concealment in order to obtain money or property or to obtain business or personal advantage”. This is submitted to be a better working definition of what is otherwise an amorphous or over-broad concept. The crucial characteristics of white-collar crimes can be identified as follows: (a) Perpetrators. White-collar crimes are crimes committed by persons who are either the directors, officers and employees of a corporation, or professionals serving such corporations.

* K Anparasan is the Deputy Managing Partner and Head of Litigation Department of KhattarWong, a member of KhattarWong’s White-Collar Crime Practice Group as well as a part-time Tutor at the Law Faculty of the National University of Singapore.  Edwin H Sutherland, “White-Collar Criminality” (1940) 5 American Sociological Review 1–12, as quoted by Amarjeet Singh SC in “White-Collar Crime” (2002) 14 SAcLJ 231 at 231–232. Alternate resource: Edwin H Sutherland, White Collar Crime: The Uncut Version (Yale University Press, 1985)  Herbert Edelhertz, The Nature, Impact and Prosecution of White-Collar Crime (Washington, DC: National Institute of Law Enforcement and Criminal Justice, 1970) at 3, as quoted by Amarjeet Singh SC in “White-Collar Crime” (2002) 14 SAcLJ 231 at 232.  Ie, commercial undertakings, as opposed to political office, public service or governmental milieu. As such, this discussion would necessarily exclude discussion of bribery and corruption.

22 | In Focus

(b) Context. White-collar crimes are crimes committed within a predominantly corporate or business context, and exclude those involving physical violence. (c) Motivation. White-collar crimes are primarily motivated by and committed for the individual’s quest for illicit economic gains or business advantages, or to conceal either business losses or other forms of defalcations or non-compliance with regulations; (d) Offences. White-collar crimes usually involve offences which involve the element of dishonesty or fraud, as it is through such dishonesty or fraud that property or business advantages are sought. This would be consistent with the fact that the predominant underlying motives of white-collar criminals are primarily economic.

PREVALENCE OF WHITE-COLLAR CRIME With economic development and the lure of living the high life, it comes as perhaps no surprise that a significant number of companies have been victims of white-collar crime. In 2007, nearly one in four of Singapore’s larger companies was hit by fraud. The amounts involved were also increasing – from an average of S$1.4m per incident in 2004 to S$4.4m per incident by 2007. The majority of the perpetrators appear to do so for materialistic reasons: about 70% committed their crimes to fuel a lifestyle beyond their means. It is therefore vital for all stakeholders in corporate governance to appreciate what constitutes white-collar crime, draw lessons from the historical examples, strengthen the systems and institutions of prevention, and have an effective risk management culture.

DIFFERENT TYPES OF WHITE-COLLAR CRIME A study of cases falling within the above definition of white-collar crime would reveal that white-collar criminals may weave highly complex schemes, and employ even more highly sophisticated means of concealing their wrongdoings and even creating deliberate misdirection for the

 We thus further exclude from this discussion offences by corporations as such against society’s regulations, inter alia, competition laws, anti-trust laws, customs and tax evasion, failure to file returns, evasion of industrial safety, health, pharmaceutical or environmental regulations, “mis-selling” of high-risk financial instruments, etc. These are ironically not usually considered as “corporate crime” or “white-collar crime”.  The statistics in this paragraph may be found in KPMG Singapore Fraud Survey Report 2008, “Fraud: Prevent, Detect, Respond” (accessed 27 November 2008).

| 23 In Focus

investigators. The following paragraphs will Fund is an informal or primitive system of discuss the types of offences entailed in micro-financing (in modern parlance). It white-collar crimes in Singapore. acts as both a loans and deposits scheme in which members are both investors and Forgery, false entries and cheating borrowers. Members put their savings into a One of overwhelming motives of corporate common pool, within prescribed or agreed crime is to achieve illicit personal gain. periods. At the end of each period or credit Cheating, forgery, and falsifying documents cycle, the pooled funds are auctioned and are the ways in which this motive may be the bidder with the lowest bid wins. Such achieved, and are arguably the most common schemes in its historical context usually denominator of corporate crime. operated at a personal level, as a quasi In numerous instances, creating forged credit co-op between friends or villagers. or false documentation and/or false However, the Gemini Chit Fund attracted entries in accounts are meant to defraud public subscription and in the end enrolled or evade internal or external scrutiny or up to 40,000–50,000 members. The lure audit of corporate undertakings. Such false was the promise of unusually high returns documents or entries serve to conceal on investment. In 1973, Abdul Gaffar was or divert attention from dishonest deeds charged with three counts of CBT amounting undertaken with the aim to siphon money out to $3.2m. The loss resulting from his crimes of a business or concern. was estimated at $50m. Conservatively, S$50m in 1973 would probably have Criminal breach of trust amounted to S$117.50m in 2007, making it Together with cheating, criminal breach one of the all-time largest criminal debacles in of trust (“CBT”) is also a common offence. Singapore history even when compared with Wrongful loss in CBT usually entails an more modern examples. In sentencing Gaffar outright appropriation of company assets or to life imprisonment, J dubbed property. the case “the swindle of the century”. In terms of its massive and sudden social SOME HISTORICALLY SIGNIFICANT CASES impact, of the sheer quantity involved, Corporate crime’s big bang the number of small individual depositors Gemini Chit Fund case ruined, the public unrest (even panic) which it Very few people below the age of 60 now will engendered, and the severity of the sentence remember this saga. However, it represents meted out to the accused involved, it was a seminal moment in the modern history of unprecedented and would not be equalled white-collar crime in Singapore. In 1964, Abdul Gaffar Mohamed Ibrahim  According to the official Monetary Authority of Singapore consumer price index inflation calculator founded the Gemini Chit Fund Corporation (accessed 28 November 2008).

24 | In Focus

until the Lehman Brothers Minibonds and The famous SIA heist DBS Hi-Notes saga in 2008. Public Prosecutor v Teo Cheng Kiat [2000] SGHC 129 Historic Shut Down of the Stock Exchange of Teo’s case was the first major (as in involving Singapore (“SES”) huge amounts) white-collar crime case v Public Prosecutor involving computers. [1986] SLR 126 Teo was granted almost total control Founded in 1960, Pan-Electric’s (“Pan-El’s”) over the Cabin Crew Allowance System, main business was then the manufacture of a computer program which computed and refrigerators. In March 1985, Pan-El joined paid out the crew’s salaries and allowances Tan Koon Swan’s (“TKS”) business empire. by making direct credits into SIA staffs’ bank On 18 November 1985, Pan-El defaulted accounts. on a loan, and voluntarily requested SES and Teo dishonestly misappropriated KSE to suspend its shares. Receivers were numerous amounts from the airline’s bank appointed, and the historic decision was to account with Overseas Union Bank Ltd suspend all trading on SES to forestall panic (“OUB”) by causing them to be paid to dumping which threatened to wipe hundreds bank accounts which were in his name or of millions off the exchange. controlled by him. Tan’s case was the first ever case of stock Random checks were supposed to be manipulation in Singapore which went to made. However, there was no way the the extent of shutting down the SES, and is supervisors could verify all the details keyed representative of the trend of white-collar in by Teo, and Teo had also falsely altered crimes becoming increasingly sophisticated a computer-generated report printed daily and dramatic. which contained all the adjustments made In the end only one count was proceeded to crew allowances for that day. The 25 CBT upon against TKS: that of abetting Pan-El’s charges involved almost S$35m. finance director, Tan Kok Liang, to commit At the conclusion of investigations, S$14m CBT of about S$145,000 (which belonged to remained unrecovered. He was sentenced to Pan-El) for which TKS was jailed two years 24 years’ imprisonment. and fined $500,000. The amount embezzled was applied to pay the interest on three Asia Pacific Brewery case million Grand United Holding (“GUH”) Public Prosecutor v Chia Teck Leng shares bought by a Pan-El subsidiary, [2004] SGHC 68 Orchard Hotel. The purchase of the shares by Chia was the Finance Manager of Asia Pacific Orchard Hotel was in turn part of a scheme Breweries (Singapore) Pte Ltd (“APBS”). In by TKS to artificially boost the GUH share order to open bank facilities in the name price. However, TKS was spared any market of his employer with various commercial manipulation charges. and merchant banks, Chia forged numerous

| 25 In Focus

documents which purportedly authorised as he did, manipulate the accounting and him, as sole signatory, to receive credit and reporting records. loan facilities provided by the said banks, Leeson had over a period of time sign all transactions and operate the bank indulged in unauthorised trading, betting accounts, on behalf of APBS. He obtained on the Nikkei Stock Average, which resulted S$159m collectively from these banks, out of in increasing losses. Spectacularly, the which he made withdrawals of US$73m (or losses mounted, especially following the approximately S$116m). collapse of the Nikkei after the Kobe Thirty-two charges were taken into earthquake on 7 January 1995. The losses consideration. ballooned to £248.6m by 31 January 1995 The final, irrecoverable loss amounted and then £848.5m by 26 February 1995. to S$62m, less the amount which the The losses exceeded the value of Baring Commercial Affairs Department (“CAD”) Plc’s shareholders’ funds. As a result, the could trace and retrieve. Chia was sentenced principal companies in the Barings Group to 42 years’ imprisonment. were put into administration in England. Chia’s crimes held the record as the worst In this case, the prosecution elected to case of corporate fraud (measured in terms of proceed on: the amount of money involved and lost) until (a) One charge under s 417 of the Penal the EC-Asia case (see below). Code for the accused cheating Barings’ external auditors by deceiving the latter The Man who broke Barings bank into believing that Barings was paid Nicholas Leeson ¥7.778bn by another party by presenting In April 1992, Nicholas Leeson (“Leeson”) altered documents to the auditors, was employed by Barings Futures (Singapore) who as a consequence was misled into Pte Ltd (“BFS”). BFS was an indirect granting Barings an unqualified audit subsidiary of Barings Securities Ltd (“BSL”), clearance in Barings’ annual audit. who in turn was an indirect subsidiary of (b) One charge under s 420 of the Barings Plc. He was in charge of trading as Penal Code involved the accused well as the “back office” of BFS which was misrepresenting (by grossly under- responsible for settlements by or in favour of declaring by an order of almost 4.5 BFS in its trading. In that position he could, times) to SIMEX the “final long position” held by Barings on a particular date, and  As there is no reported judgment of this case in by such deception caused SIMEX to pay the official reports, the account of this incident is Barings US$11.4m. taken from the law report of a subsequent civil suit concerning the bank involved (Baring Futures Nine other charges were taken into (Singapore) Pte Ltd v Deloitte & Touche [1997] consideration. The prosecution also levied 3 SLR 312), as well as from Sentencing Practice in the Subordinate Courts (Singapore: LexisNexis- costs of S$150,000. Leeson was sentenced Butterworths, 2nd Ed, 2003) at pp 475–476. to 6.5 years’ imprisonment. The court

26 | In Focus

accepted that he did not profit financially directly from the offences. Although the final charges preferred against Leeson involved relatively modest sums, the effect of what Leeson wrought was drastic: the demise of one of England’s oldest banks. This case was a spectacular negative demonstration of a “David vs Goliath” scenario. On further reflection, it is possible to say that Leeson received a relatively lenient treatment from the law in comparison with the sentences which Teo Cheng Kiat and Chia Teck Leng received, considering that neither Teo nor Chia managed to destroy the companies they had respectively worked for.

PENDING CASES TO WATCH OUT FOR As the worldwide banking and financial crisis worsens and the economy continues its present tailspin, one can expect more such corporate crimes to surface as the degree of desperation worsens, and the level of sophistication of commission of these crimes to increase and become even more complex. Two cases bear watching.

Sunshine Empire case In November 2007, news broke that the CAD had commenced investigations into multi-level marketing company Sunshine Empire, which is believed to have attracted 20,000 participants since 2006. The said firm invites participants to become vendors of goods ranging from

 For more information on the case, see the CAD website (accessed 28 November 2008). See also “CAD Begins Probe into MLM Firm Sunshine Empire”, (13 November 2007); “Clients of MLM Firm Sunshine Empire Cry Foul”, The Straits Times (12 April 2008).

| 27 In Focus

electronics to health supplements, promising potentially large “rebates” purportedly based on the participants’ cash outlay as well as the firm’s global performance. By April 2008, the payout of the rebates ceased, causing many participants to complain to the press and CAD. At the time of writing, investigations were still ongoing.

“Largest” corporate fraud case in Singapore history EC-Asia case On 9 October 2008, it was reported that Kelvin Ang Ah Peng, the chief of delisted memory chip recycler EC-Asia, was charged with 687 charges involving an astonishing US$372.2m (S$545m), making this one of the biggest corporate scandals here to date. If the allegations are proven, it would mean that it is the first case to reach or exceed the half- billion dollar mark. Ang is being charged with pretending to buy and sell integrated circuit chips, thus inducing banks to deliver sums of money for these purchases or sales. He was also charged with allegedly conspiring with another person to remit US$81.7m of the company’s ill-gotten gains from Hong Kong to Singapore, as well as charged with falsifying revenues in EC-Asia’s initial public offering (“IPO”) prospectus in 2003. He is alleged by the Prosecution to have overstated the company’s revenue by 40% for the 2002 financial year and by 10% for the previous financial year. EC-Asia’s troubles came to light only last year when KPMG was appointed to look at restructuring its debts after one of the company’s bankers, HSBC, sued it for US$3.2m. KPMG found

 “$545m Chips Fraud: Recycling Firm’s Boss Charged”, The Straits Times (9 October 2008).

28 | In Focus It is therefore vital for all stakeholders in corporate governance to appreciate what constitutes white-collar crime, draw lessons from that the firm made three-quarters of its purchases the historical examples, from only three Hong Kong firms. Similarly, strengthen the systems and 93% of its sales were made to just three firms, two of which were also its suppliers. According institutions of prevention, to the aforesaid report, Mr Neo said EC-Asia’s and have an effective risk operations consisted of passing the same stocks back and forth between Singapore and Hong management culture. Kong without any re-processing.

CONCLUSION From the foregoing, it can be seen that what is commonly called white-collar crime – though primarily committed out of economic/financial motivations – can and does actually encompass a wide gamut of offences. Such crimes also increase in complexity and sophistry, with the underpinning act involving misappropriation of moneys in one manner or another. The constraint of space has prevented a discussion of Computer Misuse Act (“CMA”) offences which covers such a large and involved area of law, and hence must remain the subject of a future article. In view of the central position occupied by computer and other information processing tools in modern corporate and business setting, it is inevitable that the commissioning of future crimes (especially white-collar crimes) would involve some manner of offence under the CMA. The sentencing policy of the courts also looks to be severely tested by the increasingly astonishing scale of white-collar criminal wrongdoing. If the High Court had put Chia Teck Leng away for 42 years for incurring S$62m worth of losses, and Teo Cheng Kiat received a 24-year jail term for incurring S$30m worth of losses, we can only wait to see what new high watermark of sentencing tariff the EC-Asia case may yet establish.

| 29 In Focus

Justice and the Ailing Offender A closer look at Judicial Mercy in Singapore

INTRODUCTION A great deal of public interest surrounded the recent case of Public Prosecutor v Tang Wee Sung ([2008] SGDC 262) (“Tang”) and the court’s ultimate decision to exercise judicial mercy. Tang had been charged under the Human Organ Transplant Act (Cap 131A, 2005 Rev Ed) as well as the Oaths and Declarations Act (Cap 211, 2001 Rev Ed) (“ODA”). While the ODA charge carried a mandatory term of imprisonment, Tang’s myriad of serious medical conditions led District Judge Ng Peng Hong to find that the exercise of judicial mercy was appropriate. Consequently, the minimum jail term of one day was imposed on Tang for the ODA offence. It seems apparent that many people sympathised with Tang’s medical condition, and thus accepted the wisdom of the court’s decision. However, as lawyers, it is important for us to remember that the doctrine of judicial mercy is not a pretext for unfettered judicial discretion. The concept of judicial mercy is not a reason to put aside the law, but rather is the application of a legally defined principle which is jurisprudentially sound. With respect, the careful and principled manner in which District Judge Ng Peng Hong analysed and applied the legal doctrine of judicial mercy, demonstrates the correct approach to a doctrine whose value to society is perhaps accentuated by its infrequent use. By SC and Adam Maniam, Legal Practitioners

30 | In Focus

THE LAW ON JUDICIAL MERCY IN circumstances of the offence; SINGAPORE (b) public interest in ensuring that The doctrine of judicial mercy a full sentence be meted out, which received more precise definition necessarily involves an assessment in 2006 when the Honourable of the probability of the accused re- Justice V K Rajah distilled the offending; (c) the severity of the ill- applicable principles concerning health of the accused; and (d) the the exercise of judicial mercy in impact that a term of imprisonment Singapore in Chng Yew Chin v would have on the accused. Public Prosecutor ([2006] 4 SLR 124) The impact of imprisonment (“Chng”). Rajah J (as he then was) on the offender was a factor that noted that judicial mercy was Rajah J delved into in some detail. neither “novel nor unprecedented” This “impact” was calculated by in Singapore. However, the examining the likelihood that learned judge emphasised that imprisonment would increase the the doctrine should be applied burden on the accused or exact only when there were exceptional a hardship “either manifestly circumstances. His Honour pointed excessive of what a prisoner to cases where seemingly serious without his condition would suffer medical conditions, such as chronic or patently disproportionate to hypertension, acute eye disease his moral culpability or both”, and tuberculosis, were found not and the probable aggravation to be grave enough to warrant an of the accused’s health due to exercise of judicial mercy. imprisonment. The learned judge Various cases from the United concluded by cautioning that the Kingdom, Australia, and Hong considerations in the framework Kong were then considered before were to be assessed holistically, Rajah J laid out a comprehensive and not in isolation. framework where the relevant In Tang, Rajah J’s framework was considerations for the exercise of applied and it was concluded that judicial mercy in Singapore were the exercise of judicial mercy was enumerated. These considerations appropriate. Importantly, Tang’s included: (a) the nature and ill health was just one of several factors that District Judge Ng Peng Hong considered in deciding to  Viswanathan Ramachandran v PP [2003] 3 SLR 435. exercise judicial mercy. With regard  Lim Teck Chye v PP [2004] 2 SLR 525. to the nature of the offence, it was  PP v Lee Shao Hua [2004] SGDC 161. noted that Tang’s offence arose

| 31 In Focus

out of Tang’s “desperate need to of relevant considerations but, save his life”. District Judge Ng Peng more fundamentally, in its thought Hong also found that an extended leadership. Chng instructs us how term of imprisonment would to approach the subject of judicial severely impair Tang’s health and mercy, not merely as a plea borne would be wholly disproportionate of desperation when counsel have to the offence committed. It was nothing else to say, but as a legally also noted that imprisonment recognisable doctrine which is would “most likely have very much jurisprudentially sound. harsher consequences for him than The four principles of sentencing what is intended for the ordinary were enumerated in R v James Henry offender”. Finally, the learned judge Sargeant ((1974) 60 Cr App R 74 also observed that it was virtually at 77), where Lawton LJ noted that the impossible that Tang could re-offend “classical principles [of sentencing] and, after considering all the above are summed up in four words: factors holistically, concluded that retribution, deterrence, prevention Tang should only be imprisoned for and rehabilitation”. Of these four one day. principles, it is the principle of retribution that judicial mercy possibly JURISPRUDENTIAL ISSUES sits ill at ease with. The principle CONCERNING JUDICIAL MERCY of retribution requires that “the Chng provided a much needed punishment meted out to an offender analytical framework within which should reflect the degree of harm and to consider and apply the doctrine culpability that has been occasioned of judicial mercy. While cautioning by such conduct” (Public Prosecutor that the enumerated considerations v Loqmanul Hakim bin Buang [2007] were “neither a comprehensive nor 4 SLR 753 at [46]). Thus, retributivists conclusive catalogue”, Rajah J also believe that an offender must receive noted that any sentence meted out his just deserts for the offence that he to the seriously ill offender must not has committed. only embrace all the considerations It is often said that justice must be enumerated, but also strike a tempered with mercy. Retributivists, balance between the appropriate however, argue that mercy thus sentence and allowing a seriously engenders injustice, because it results ill person to live out the rest of his in a “less than just” punishment days “with dignity and in peace”. being imposed on an offender. Thus, the value of Rajah J’s decision Retributivists thus consider mercy was not merely in the enumeration to be a vice in the criminal context,

32 | In Focus

Further, while retributivists argue that there is only a single “just” punishment that can be imposed, this ignores the reality of sentencing where a judge often can choose an appropriate punishment from a continuum that is available to him. Thus, when utilising the comprehensive framework set out in Chng, retributive criticisms of judicial mercy are not borne out.

PRACTICAL CONCERNS: HOW MUCH DISCRETION IS ENOUGH? In Chng, it was noted that “the courts have always had the residuary discretion to exercise mercy in appropriate cases”. The obvious because it leads to unjust results. concern here is whether as powerful However, this retributive theory fails a tool as judicial mercy should exist to take cognisance of the fact that entirely within the realm of a judge’s under the Chng framework, the court “residuary discretion”. As noted by is not merely giving the offender a the Malaysian Supreme Court, albeit “discount” based solely on his ill- in another context, “[u]nfettered health, but is looking at the totality of discretion is another name for circumstances in order to determine the arbitrariness” (Minister of Labour, just and appropriate sentence. Thus, Malaysia v Lie Seng Fatt [1990] the merciful judge is not perpetrating 2 MLJ 9). an injustice, but merely taking an A closer look at judicial mercy in expansive view in order to determine Singapore, however, shows that these where justice lies. concerns are largely unfounded. Even as he formulated the framework in  Jeffrie G Murphy, “Mercy and Legal Chng, Rajah J cautioned that judicial Justice” in Jeffrie G Murphy & Jean Hampton, Forgiveness and Mercy mercy should only be exercised with (Cambridge University Press, 1988) at p 169.  David Dolinko, “Some Naïve Thoughts about Justice and Mercy” (2007) 4 Ohio  Eric L Muller, “The Virtue of Mercy in State Journal of Criminal Law 349–360 Criminal Sentencing” (1993) 24(1) Seton at 354. Hall Law Review 289–346 at 302.

| 33 In Focus

the “utmost care and circumspection”, discretion enough to ensure that and “after the relevant facts have mercy is exercised in only the most been vigilantly and rigorously sieved exceptionally appropriate cases. and appraised”. His Honour further noted that “[t]he exceptional nature of CONCLUSION this judicial discretion demands strict As with any legal doctrine, judicial proof of facts and not sympathetic mercy has its critics, be they the conjecture”. Rajah J concluded his retributivists who argue that it leads to judgment by placing the “utmost injustice, or the man in the street who emphasis” on the caveat that his believes that its exercise is ultimately judgment should not indicate that arbitrary. Despite this, judicial mercy, all future offenders with terminal as defined by the Singapore High illness will “invariably be treated with Court, is both intellectually defensible kid gloves”. The learned judge also and practically useful. For it to remain emphatically reiterated that “the so, however, judges must continue to exercise of judicial mercy will continue exercise it with “utmost care”. Counsel to be resorted to only in limited and too should strive to ensure that this exceptional circumstances”. doctrine is not overused through It is apparent from Chng that deployment in unwarranted situations. judicial mercy is not to be lightly If this doctrine is deployed as rarely invoked, and this is borne out by as Chng suggests it should be, it cases cited above, where judicial will be all the sharper when needed. mercy was not invoked even for Finally, Chng cautions that “there is no offenders with appreciably serious latitude for the mercy of our courts to illnesses. At the same time, while the be cynically abused” by criminals who framework provided in Chng does use their serious medical condition not contain “hard and fast rules”, it is consciously to commit crimes, in the comprehensive and rigorous enough anticipation that mercy will later be to ensure that any judge wishing to granted to them. exercise judicial mercy would have to Our justice system must apply the show why a particular offender’s case law impartially and without fear or was exceptional enough to warrant favour. However, a society that applies such mercy. The Chng framework the law coldly without considerations thus leaves judges with enough of mercy in appropriate cases would discretion to ensure that mercy is be a frightening place to live in. not exercised as a matter of course Fortunately, cases like Chng and Tang for every seriously ill offender, while show that Singapore’s legal system is at the same time constraining this striking the right balance.

34 | In Focus A Servant of Truth and Justice A Forensic Science Exclusive

By Michael Tay Ming Kiong, Director (Forensic Science Division), Applied Sciences Group, Health Sciences Authority (Singapore)

Forensic evidence WHAT IS FORENSIC SCIENCE? plays a significant Forensic science is the application of science and technical part in criminal expertise to the resolution of legal matters. It is an applied law, as espoused science, drawing on chemistry, physics, life sciences, mathematics, in the cases engineering and problem-solving methods. Forensic evidence mentioned in this article. is essentially circumstantial or indirect evidence, providing the Also unveiled basis for inferring facts and conclusions in a case using deductive is the workings reasoning. It provides information that frequently is not available by of the forensic other means. The careful examination of physical evidence identifies laboratory, and persons, objects, substances, contacts between them, and events how its scientists and actions that transpired in a crime. Forensic findings may be industriously piece all evidence used to corroborate or refute a claim. In some instances, forensic together. science may be the only or principal source of information that the trier of fact has to rely on to ascertain guilt or innocence.

| 35 CRIMEIn Focus SCENE CRIME SCENE CRIME SCENE CRIME SCENE CRIME SCENE CRIME SCENE

The importance of forensic removed by the criminal as to foil evidence in the administration of scientific analysis. Hence, the maxim justice was underscored by Kirk and “absence of evidence is not evidence Thornton: of absence” may apply in certain cases. The utilization of physical evidence is critical to the solution ROLE AND RESPONSIBILITY OF of most crime. No longer may FORENSIC SCIENTISTS the police depend upon the An expert witness is a person who confession, as they have done through a combination of formal to a large extent in the past. education, skills, training and The eye witness has never been experience is accepted by the court dependable, as any experienced to offer opinion testimony in relation investigator or attorney knows to the disputed matter. The expert quite well. Only physical evidence witness possesses relevant knowledge is infallible, and then only if it is that is not expected of the average properly recognized, studied and layman. The credentials of a forensic interpreted. scientist are usually based on a strong foundation in natural and physical BASIC PRINCIPLE OF FORENSIC sciences, specialised training and SCIENCE casework experience in a forensic The underlying principle of forensic laboratory. science is Edmond Locard’s Exchange Thornton considers the role of Principle commonly worded as: “every forensic scientists to be distinctive in contact leaves a trace”. When two their responsibility to the court: objects come into contact, there is a transfer of material, creation of marks The single feature that or alteration. However, in practice, distinguishes forensic scientists the crime scene is not a controlled from any other scientist is the environment, and there can be certain expectation that they exceptions to that rule where physical will appear in court and testify evidence is not collected or altered by environmental factors, or so effectively  John I Thornton, “The General Assumptions and Rationale of Forensic  Crime Investigation (John I Thornton & Identification” in Modern Scientific Paul L Kirk eds), (New York: Wiley, 2nd Ed, Evidence: The Law and Science of Expert 1970) at p 33. Testimony vol 2 (David L Faigman, David  Edmond Locard, Manuel de technique H Kaye, Michael J Saks & Joseph Sanders policière (Paris: Payot, 1923). eds) (St Paul: West Publishing Co, 1997).

36 | CRIME SCENE CRIME SCENE CRIME SCENE CRIME SCENE CRIME SCENE CRIMEIn Focus SCENE

to their findings and offer an of science.” While forensic scientists opinion as to the significance are expected to vigorously justify and of those findings. The forensic defend their findings in court, they scientist will testify not only to are also expected to be intellectually what things are, but to what honest and to truthfully concede any things mean. limitations in their examinations, consider alternative explanations and The forensic scientist is an scenarios, and testify within their field educator in court, presenting and of expertise. explaining physical evidence with minimal scientific jargon, ie, in terms TYPES OF FORENSIC EXAMINATIONS understood by the layman. A forensic The Health Sciences Authority (“HSA”), scientist must possess the technical Singapore’s national provider of knowledge and communication skills forensic services, performs a wide to state and explain clearly his basis range of examinations in seven key for reaching conclusions, enabling the forensic disciplines, namely: court to grasp the importance of the (a) forensic biology (serology, DNA evidence and to reach an informed profiling, DNA database); decision. The communication of (b) trace evidence (glass, paints, fibres, scientifically rigorous information gases, soils, fire debris, gunshot concerning physical evidence can residues, explosives, household and mean the difference between guilt or industrial chemicals); innocence of an accused. (c) marks and prints (firearms, Expert witnesses have the duty toolmarks, shoeprints, tyreprints, to be objective, impartial and physical fits, damages, obliterated independent. Forensic scientists must stamped markings, manufacturer not advocate either the Prosecution’s marks); or Defence’s case; they are ethically (d) questioned documents obligated to advocate only the truth, (handwriting, signatures, inks, and to allow evidence to speak for counterfeit currency, security itself. documents); Paul C H Brouardel, the 19th (e) controlled substances (illicit drugs); century medico-legalist said “[i]f the law has made you a witness, remain a  Paul C H Brouardel, “What do Forensic man of science; you have no victim to Scientists do?” Forensic Sciences avenge, no guilty person to convict, Foundation website (accessed must bear testimony within the limits 26 November 2008).

| 37 In Focus

(f) toxicology (General toxicology time based on the physical (therapeutic drugs, poisons), evidence (eg, bloodstain pattern blood/urine alcohol); and reconstructions, shooting (g) crime scenes (bloodstain patterns, reconstructions, traffic accident crime scene reconstruction, reconstructions). scientific simulations). Expert evidence usually comprises a factual component and an opinion LEVELS OF FORENSIC FINDINGS component. The scientist is essentially The wide spectrum of forensic a fact witness for laboratory results examinations can be classified in obtained from direct observation, Inman and Rudin’s taxonomy of measurement or instrumental forensic findings, which consists of the analysis. The requirement to provide following five levels: the court with opinion evidence and (a) Identification. Defining the interpretation of the significance of physico-chemical nature of an physical evidence beyond a statement evidence item (eg, ignitable liquid, of fact evidence generally increases explosives, illicit drugs, poisons). from identification to reconstruction. (b) Classification. Determining the class type and inferring multiple ETHICS AND THE FORENSIC SCIENTIST potential common sources for an Forensic scientists need to be evidence item (eg, fibres, blood competent and meticulous in their type, tyre track). work. As proponents of scientific (c) Individualisation. Concluding a truth, they must strive to be singular common source for two objective, rigorous and complete items (eg, DNA, fired ammunition in their examinations, and unbiased parts, shoeprints). in interpreting findings. Ethics is (d) Association. Inferring contact essential to forensic science. Ethics between two objects – the source must be the moral compass in the of the evidence and the target quest for scientific truth. A typical on which it was found (eg, fibres, code of ethics for forensic scientists DNA, glass fragments, multi- emphasises professionalism, layered paint fragments). competence, integrity, reliability, (e) Reconstruction. Ordering objectivity, neutrality, independence events in relative space and  William G Eckert & Ronald K Wright, “Scientific Evidence in Court” in  Keith Inman & Norah Rudin, Principles and Introduction to Forensic Sciences Practice of Criminalistics: The Profession (W G Eckert ed) (CRC Press, 2nd Ed, 1997) of Forensic Science (CRC Press, 2001). at p 75.

38 | In Focus

and avoidance of bias. Lab staff quantifiable data, and interpret are constantly warned of the dire the results. Determine whether consequences of incompetence, the scientific results support or sloppy work, short-cuts, contamination contradict the hypothesis. and destruction of evidence, wrong (e) Report the findings and interpretations, overstatements, conclusion. opinions not supported by While performing the examination, documentation, “dry-labbing” the forensic scientist must not (fabricating lab results), exaggerated ignore or rule out any data that credentials, dishonesty, perjury, and does not support the hypothesis. the neglect of quality assurance Replicate testing and use of multiple responsibilities. complementary techniques are means to ensure the reliability of RELIANCE ON THE SCIENTIFIC findings. In interpreting data, the METHOD scientist needs to apply critical Forensic science is an inquiry based on thinking and logical reasoning with an the Scientific Method. The Scientific open, inquisitive mind. Withholding Method is a structured, systematic judgment until results are known is and disciplined approach to uncover an important tenet of the Scientific scientific truth. This self-correcting, Method. If a hypothesis is rejected, inductive approach has five main a new hypothesis may be formulated steps: and the steps are reiterated. The (a) Make observations and gather strict adherence to documented information. procedures and checklists in forensic (b) Define the problem by asking labs ensures the consistency, questions. reproducibility and reliability of (c) Form a hypothesis by formulating findings. a question that can be tested One of the subtle pitfalls that by experiments, measurements, forensic scientists must avoid is analyses, examinations and confirmation bias – the seeking comparisons. or interpreting of evidence in (d) Conduct qualitative and/or ways that affirm existing beliefs, quantitative analysis and expectations or a hypothesis in examinations, gather empirical hand. All conclusions and opinions in reports must be supported by data permanently recorded in sufficient  William Jerry Chisum & Brent E Turvey, Crime Reconstruction (Elsevier Academic detail in case records. Information Press, 2007). from investigators to scientists

| 39 In Focus

concerning a case should be limited to RECENT CASE STUDIES IN SINGAPORE only what is necessary to understand The findings of HSA’s forensic scientists the request and effectively perform the have helped Singapore courts to ascertain examination without bias or prejudice. the truth in many criminal cases and to decide on culpability and the severity LABORATORY ACCREDITATION of punishment. Here are four recent Forensic labs in Singapore have been examples. accredited by the American Society of Crime Laboratory/Lab Accreditation Drug-related offences Board (“ASCLD/LAB”) since 1996. Possession, consumption and trafficking of Accreditation has been the major driver controlled drugs are very serious offences of quality in HSA’s forensic sciences in Singapore, attracting heavy penalties. laboratories. The Misuse of Drugs Act (Cap 185, 2008 Like every other organisation, a Rev Ed) (Sched 2) lays down the various forensic laboratory rises or falls on punishments for drug abuse, which its leadership. Laboratory directors includes fines, imprisonment, strokes of must exercise proper supervision and the cane, and the ultimate death penalty. oversight, and enforce accountability The sentence is proportional to the gravity and high quality standards. Lab of the offence, and depends on the class managers must seek adequate resources of drugs involved and the quantity of for lab operations, employ people with the drug. The reliable identification and character, integrity and qualifications, accurate quantitation of controlled drugs implement a stringent quality system is therefore an important function of HSA’s with peer review of casework and Illicit Drugs Laboratory. regular quality audits, impose discipline In Public Prosecutor v Pang Kang and a quality culture, and rectify any Jiann [2008] SGDC 226, the accused errors discovered in routine checks. faced five charges for possession and Peer review is an accreditation trafficking of controlled drugs. Analyses requirement to ensure the quality of were performed by HSA to identify and forensic reports. The administrative quantitate the controlled substances. On review of the report checks for 18 September 2008, District Judge Adrian consistency with lab policy, editorial Soon found the accused guilty and in clarity and grammar. The technical passing sentence, remarked: review involves the critical evaluation by a second competent scientist of … the court regarded as mitigating the notes, data and other documents the fact that the accused had pleaded which form the basis for a scientific guilty to 2 charges … On the other conclusion. hand, in respect of aggravation, it

40 | In Focus

Lim’s study room r usty Beretta pistol (recovered from canal) and magazine o ne of the 6 fired cartridge cases (loaded with rounds for test-firing) recovered from floor

was noted that the five charges pursuant to s 4 of the involved the trafficking of various (Cap 14, 1998 Rev Ed). Tan was found drugs … The quantity of drugs guilty of discharging six rounds from a involved is also a very material 0.22 calibre Beretta pistol with intent to factor. The quantity of drugs may cause physical injury to the deceased, be specified as follows:- Lim Hock Soon. While acknowledging (1) Ketamine – 10 tablets that he fired the Beretta, Tan insisted containing 449.7 grams that the shooting was accidental and he (2) Ecstasy – 50 tablets had not intended to cause any physical (3) Methamphetamine – 10 injury to Lim. packets containing 33.77 The Court of Appeal ( grams v Public Prosecutor [2008] SGCA 32) (4) Nimetazepam (Erimin 5) – 1200 dismissed Tan’s appeal. In the judgment, tablets. V K Rajah JA stated (at [33]) that:

For the first charge, Pang was … Even though there was only sentenced to ten years’ imprisonment one eye witness (ie, Risa), it is and five strokes of the cane; and for the imperative to remember that, second charge, six years’ imprisonment based on the evidence of Ms Lim and five strokes of the cane, with the Chin Chin, [HSA’s] Senior Forensic two jail terms running concurrently. Scientist, at least two of the shots from the Beretta had been fired Firearms evidence at a muzzle-to-target distance of Tan Chor Jin (“One-Eyed Dragon”) more than 1m. This dispelled the was convicted by the Singapore High notion that the shots were fired Court (Public Prosecutor v Tan Chor Jin inadvertently during a desperate [2007] SGHC 77) for an arms offence struggle between Tan and Lim …

| 41 In Focus

2.26m DNA and trace evidence DNA profiling was the most significant forensic development of the 20th century. It is the method of choice for the Pushing point identification of individuals in criminal X cases. In Public Prosecutor v Leong Siew light push from 6th storey Chor [2006] SGHC 81, the use of DNA typing and comparisons of trace evidence (carton materials, newspapers, plastic bags, soil and metal fragments from the chopper) conclusively linked Leong to the those found in the Geylang flat and murder of Chinese National, Liu Hong Mei. the traces of evidence found on the In his judgment, J (at [37]) accused’s clothes. stated that: Tay J convicted Leong Siew Chor of Subsequent exhaustive DNA and murder under s 302 of the Penal Code other laboratory tests conducted (Cap 224, 1985 Rev Ed) and passed the by various sections in the Health mandatory death sentence. Sciences Authority confirmed that all the dismembered parts that had been Crime scene reconstruction found were from the same body and In Public Prosecutor v Chee Cheong Hin that the packaging materials used to Constance [2006] 2 SLR 24, the accused dispose of the body parts matched faced the charge of causing the death of four-year-old Sindee Neo by causing her to fall from a block of flats with the intention of causing such bodily injury as was likely to cause death, an offence punishable under s 304(a) of the Penal Code (Cap 224, 1985 Rev Ed). There were no eye witnesses in the wee hours of the morning when Sindee plummeted to her death. How did the fall occur? A scientific reconstruction of the fall was undertaken by HSA’s Dr Michael Tay using an inanimate 25kg model of the child from different storeys of the block with different pushing forces in s oil was recovered from The sandy soil contained an attempt to determine whether the fall Leong’s sandal bougainvillea thorns and was accidental or caused by Constance. small seashells, consistent with vegetation and soil at Kallang River bank 42 | In Focus

10th Storey

6th Storey Lift well On 7 April 2006, Rajah J sentenced 4th Storey Constance to 13 years’ jail – three years for abducting Sindee, and ten years for causing Sindee’s fatal fall ([2006] Sheltered 2 SLR 707). walkway Long common corridors on 6th CONCLUSION Site of and 10th storeys Forensic science is a servant of Truth Experiment and Justice. It is a central pillar in the criminal justice system. The public must In his judgment, V K Rajah J (as he then have full confidence in forensic science. was) concluded: Forensic scientists are expected to be competent, objective and independent 102 … After careful evaluation of seekers of scientific truth. As expert the evidence, I am satisfied by the witnesses in court, they explain the findings of Dr Tay’s experiments significance of physical evidence, that only a horizontal force, that assisting the court in its public role of is to say, a pushing or projecting convicting the guilty and exonerating the force, could account for the innocent. Forensic science is the channel eventual distance between the through which physical evidence – Block and Sindee’s body. the silent witnesses of a crime – speak. … Forensic scientists must let this evidence 104 … Dr Tay was emphatic that speak for itself without distortion, ‘definitely there was a force acting suppression or misrepresentation. on the body of this child in order to Applying the Scientific Method helps propel it out from the building’. forensic scientists maintain objectivity … in examining physical evidence, 111 … [Constance’s] interpreting the data and reaching sound demonstration of how the incident conclusions. occurred has been correctly In many instances, forensic evidence rejected by the Prosecution’s has provided vital information, assisting principal expert witnesses, Dr Ho the court to arrive at an accurate and fair and Dr Tay … Some force must decision in meting out the appropriate have been applied to [Sindee’s] sentence and punishment for the crime. body by the accused to cause her to fall. The fall did not happen Opinions and points of view expressed in this by accident; it was woven by the article are those of the author and do not necessarily reflect the official position or policies accused’s design … of HSA.

| 43 In Focus FROM QUEEN VICTORIA TO CYBERSPACE REFORM OF SEXUAL OFFENCES LAW IN SINGAPORE By Charles Lim Aeng Cheng, Parliamentary Counsel and Principal Senior State Counsel, Legislation and Law Reform Division, Attorney-General’s Chambers, Singapore*

CASE OF THE UNDER-AGED PROSTITUTE A historical Rodney Sim Hang Nge earned the dubious honour overview of of being the first man to be prosecuted in court for the sexual allegedly having sex with an underaged prostitute. offences in the Penal Sim, 60, was accused of obtaining sex from a 17-year- Code, and the old prostitute from for $100 on 3 August 2008 public policy and two days later for $30, both occasions in a Geylang rationale hotel. Minutes earlier at another district court, Wang behind Minjiang, 36, was fined $8,000 for supplying the same its 2008 17-year-old prostitute to 55-year-old Tan Chye Hin on revision. 4 August. Wang Minjiang, 36, had also pleaded guilty to bringing in prostitutes, living on immoral earnings and managing a place in a Geylang coffee shop for the purpose of prostitution. He was fined $17,000. On appeal by the Public Prosecutor (“PP”), the Singapore High Court substituted Wang’s $8,000 fine with a 12-month imprisonment term.

PROSECUTING MRS ROBINSON? On 16 October 2008, a 32-year-old married female ex-teacher was charged with having sex with a 15-year-old boy. She is reportedly the first

 The police prosecutor told District Judge Adrian Soon that it was the first case of its kind here.  Public Prosecutor v Wang Minjiang [2008] SGHC 209.  In the film The Graduate, listless recent college graduate Benjamin Braddock has an affair with an older married woman, * I am grateful to my colleague Mrs Robinson. Note, however, that Braddock, Mrs Robinson’s Wendy Yap Peng Hoon for her target, was not a child; he was in his 20s, had just graduated comments on the first draft of this from college, and was contemplating a career in plastics. article.

44 | In Focus

woman in Singapore to be charged heterosexual as well as homosexual in court for having sex with a minor. acts of penetration. The ex-teacher was alleged to have had consensual sex six times with FIRST REFORM OF SEXUAL OFFENCES the boy between 10 March and 8 LAW SINCE VICTORIAN ERA May 2008. The boy is believed to be The Penal Code (Amendment) Act a secondary school student. 2007 (No 51 of 2007) which created the new ss 376B and 376A offence of NEW OFFENCES CREATED commercial sex with a minor under 18 Prior to 1 February 2008, Sim and the “gender neutral” offence of could not have been prosecuted. sexual penetration of a minor under Consensual heterosexual sex with a 16 came into force on 1 February prostitute above 16 years old was 2008. This is the first major reform not an offence before 1 February. of sexual offences in the Penal Code As for the unnamed teacher, since 1871 during the reign of Queen before 1 February, consensual Victoria. Sexual predators have since heterosexual sex between an adult graduated from the dark back alleys to female and a male minor attracted cyberspace. only a “slap on the wrist” under s 7 of the Children and Young CATALYST FOR REFORM – THE 2003 Persons Act (Cap 38, 2001 Rev Ed) ORAL SEX CASE (“CYPA”). The Women’s Charter The catalyst for the review of the (Cap 353, 1997 Rev Ed) (true to its sexual offences in the Penal Code name) only criminalised consensual was the November 2003 conviction heterosexual sex with a female of a 27-year-old police sergeant, minor under 16 years old (see Annis Abdullah under the then s 377 s 140(1)(c)). After 1 February, the of the Penal Code for engaging in sexual penetration (whether or not “carnal intercourse against the order consensual) of a minor under 16 of nature” with an under-aged girl. by either a man or woman became Annis and the victim got to know each a specifically proscribed offence other through an Internet chat room (PC s 376A). The new offence is truly gender neutral in that it applies  This review of the Penal Code as a whole to both males and females and to is the most comprehensive undertaken since 1984, when the Penal Code was amended to introduce mandatory  See s 376B of the Penal Code (Cap 224, minimum punishment for several serious 2008 Rev Ed) (“PC”), punishable with offences. This article however focuses a maximum seven years’ imprisonment only on aspects of the reform of sexual term and/or fine. offences.

| 45 In Focus

in March 2002, met and kept in touch. authorities’ decision to prosecute the On 23 April 2002, Annis requested accused in the present case. the victim to perform fellatio on him Working closely with the and she complied. Subsequently, Attorney-General’s Chambers the victim confided this incident to (“AGC”), Ministry of Law and other her friends and she was encouraged government agencies, the Ministry to make a police report. Anis was of Home Affairs (“MHA”) reviewed sentenced on 6 November 2003 the Penal Code’s provisions to to two years’ imprisonment by the reflect present realities, addressing District Court. Note the cyberspace the changing nature of crime and element in this offence. ensuring that there is adequate protection for the more vulnerable REACTION IN THE MEDIA members of Singapore society, such Although the victim was actually as minors and the mentally disabled. below 16 years old at the time of the Stretching over three years, the offence, the court was mistakenly process was described by Senior informed that the victim was 16 Minister of State (“SMS”) Assoc Prof years old at the relevant time. As as a measured and it was reported in the media that deliberate one, taking into account, Annis had been prosecuted for a where applicable, legislative changes consensual “unnatural” sexual act in other jurisdictions. with a girl who was not under the age of consent, there was strong public COPYING WITH EYES WIDE OPEN reaction critical of s 377 of the Penal The legislative drafters drew Code. Certain members of the public inspiration for the new sexual questioned whether consensual oral offences from the Sexual Offences sex should continue to be criminalised Act 2003 (UK). The British Act takes under s 377. Some went further 80 sections to set out the many new to express dissatisfaction over the sexual offences. It has been criticised for being overly broad and lengthy.10  See Annis Bin Abdullah v Public Many of the provisions describe in Prosecutor [2003] SGDC 290 at [4]. tremendous detail the elements of  Highlighted in a joint letter from the the offence. Ministry of Home Affairs and the Ministry of Law to The Straits Times (14 November 2003) (accessed 10 10 See generally David Ormerod, Smith November 2008). and Hogan: Criminal Law (OUP, 11th Ed,  Ibid. 2005) at pp 594–597.

46 | In Focus

The Singapore Act has followed BRITISH SEXUAL MORES NOT BLINDLY the innovative drafting style in the IMPORTED INTO SINGAPORE British Act of prescribing (ie, “It is The British Act itself was the result an offence for a person (A) to do of a comprehensive review of the a specified behaviour to another law on sexual offences. It began with person (B)”); but the Singapore the Home Office Review, “Setting legislature had wisely refrained from the Boundaries: Reforming the Law importing the British offences lock, on Sexual Offences” (2000) and stock and barrel. New offences were the “Review of Part I of the Sex carefully selected in the context Offenders Act 1997” (2001). The of the practical and potential to British Act purported to modernise Singapore society and in order the law and reflect the sexual mores to avoid overly broad provisions. of the 21st century. The British Act Section 377 previously afforded also introduced gender neutrality. the Prosecution with a blunt tool The sexual mores of modern British to catch a wide range of sexual society need not necessarily coincide misconduct not prescribed or with the sexual mores of Singapore’s inadequately addressed by any more conservative society in the 21st other statutory provisions such century. In the words of SMS Ho, as oral or anal sex with a minor, “[a]s a major criminal law statute, its incestuous oral or anal sex and provisions reflect our society’s norms sexual exploitation of a person and values … Now, we are amending with mental impairment. With the the Code so that it remains effective in repeal of s 377, it was necessary a dynamic and changing environment to create new offences to catch that remains challenging”.11 The these forms of sexual misconduct calibrated liberalisation to reflect or deviant behaviour which were changing norms and values was either grossly offensive to society or primarily in the de-criminalisation of were necessary for the protection “unnatural sex” viz sodomy and oral of minors and other vulnerable sex between consenting heterosexual victims. The range of deviant adults in private under the repealed sexual acts involving animals (dog’s s 377. On the other hand, the more penis) and objects (Barbie doll leg) conservative Singapore values as was illustrated in the tragic case compared to British values were of Public Prosecutor v Ong Li Xia [2000] SGHC 149 which is probably 11 Singapore Parliamentary Reports, Penal Code (Amendment) Bill (22 October 2007) the worst recorded case of bullying vol 83 at col 2175 (Senior Minister of State amongst youths. for Home Affairs Assoc Prof Ho Peng Kee).

| 47 In Focus

evident in the retention of that all our criminal offences criminalisation of male homosexual should be gender neutral acts (s 377A) and the retention in because of the psychological a diluted form of the marital rape† and physiological differences immunity. of men and women – I think that is a point that Mr Charles GENDER NEUTRALITY – PROTECTING Chong also alluded to – I do MEN FROM WOMEN? not know how many male Another significant difference from Members will agree with him Britain was the departure from or me when I say that we, gender neutrality in the offence of who are males, are less likely rape. Rape of a man by a woman to feel that our modesty has remains not an offence. One been insulted compared to possible reason for this decision our wives or girlfriends. So is that it might be thought to be section 509 is kept only where physiologically impossible for a women are victims – insulting man to be aroused under coercion the modesty of a woman. And or threat. Another reason could there are also other offences be that women as the historically where it is not gender neutral. “weaker” sex were historically Rape is one. protected by the law of rape from men. It is telling that there To the credit of MHA, they is an international convention for were receptive to feedback during the elimination of discrimination the consultation process which against women but no convention persuasively argued that the s 376A for the converse to protect men offence of sexual penetration of against discrimination by women. minors and the s 376F offence SMS Ho explained it thus in of sexual activity with mentally Parliament:12 disabled persons should be made gender neutral. The reality that We have stated the position this could be a practical problem in this House before that in Singapore was borne out by we do not take the position the above-mentioned case of the 32-year-old female teacher and the 12 Singapore Parliamentary Reports, 15-year-old student. Women should Penal Code (Amendment) Bill be warned that whilst “female (23 October 2007) vol 83 at col 2354 (Senior Minister of State for Home rape” is not criminalised, sex with Affairs Assoc Prof Ho Peng Kee). a minor is a major crime. Similarly,

48 | In Focus

non-consensual sexual penetration of a man by a woman with her fingers or with an object is criminalised under the new offence of sexual assault by penetration under s 376. Though it might appear inconsistent, the Legislature’s rationale lies in the “physiological difference” argument. Another British offence which was initially omitted from the initial consultation version of the Bill was the new offence of sexual groomingß of a minor under 16. In answer to a question in Parliament on 17 July 2007 from Nominated Member of Parliament (“NMP”) Siew Kum Hong, SMS Ho said that one of the areas that was being considered actively was sex with minors and, in this context, the Government was considering s 15 of the British Act 2003 on sexual grooming without the actual act of sex having been committed.

RETAINING TRUSTED OLD WINE Another departure from the British Act was the realisation that the definition of what constitutes “sexual” may give rise to difficulties of interpretation and proof in court. Whilst this definition was adopted, the Singapore provisions differed somewhat from the UK models in that it is not necessary for the Prosecution to prove that penile penetration is a sexual act.13 The tort law maxim res ipsa locquitur was the probable raison d’être. The British offence of “sexual assault by sexual touching” (s 3) was also not adopted, and the retention of the Victorian outraging modesty offence preferred. The authors, Yeo, Morgan and Chan, have observed that although defining “modesty” presents some interesting theoretical challenges, most cases do not present difficulties in practice.14 Quare whether an “unchaste” prostitute who commercially exploited her own body could be capable of possessing any “modesty” that could be outraged. The retention of s 354 (using

13 This is evident from the absence of the word “sexual” as a qualifier to penile penetration. This approach is however similar to rape under ss 1 and 5 of the Sexual Offences Act 2003 (UK) where the “sexual” requirement is absent. 14 Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in Malaysia and Singapore (LexisNexis, 2007).

| 49 In Focus

criminal force to outrage modesty) to engage in sexual activities or to would retain reliance on the body watch sexual activities are covered of local case law and avoid the under a related amendment which difficulty of determining whether enlarged the scope of s 7 (sexual the touching of a woman’s hair exploitation of child or young or shoulder constitutes sexual person) of the CYPA in a gender touching.15 neutral manner. Apart from the new offences introduced by the reform, what is THE WAR AGAINST HUMAN interesting was the sexual offences TRAFFICKING which were left “untouched” (pun The Penal Code amendments will unintended). Apart from ss 377A allow Singapore, as a responsible and 354, the Victorian offences of global citizen, to do its part in insulting the modesty of a woman curbing human trafficking. During (s 509) and obscene acts or songs in the Parliamentary debate, NMP public (s 294) were left substantially Eunice Olsen with a tint of sarcasm untouched. The legislative drafters commended the Government chose not to adopt UK offences for “finally introducing a law to such as exposure of genitals (s 66) prohibit sex with minors overseas and voyeurism (s 67). Although and finally befitting Singapore’s framed in Victorian language, status as a developed and the Penal Code provisions enjoy advanced nation”. She said to sufficient flexibility and a wealth laughter in the House that she of local case law to cover a host of hopes that “this is not just a token fact situations unforeseen in the move to vault Singapore back into 19th century such as voyeurism Tier 1 in the trafficking in persons through “up-skirt” video filming. report issued by the US government The modern language of the after we were demoted to Tier 2” in British Act would have described 2007. The US Department of State’s in tremendous detail the elements Trafficking in Persons Report 200816 of the offence rather than focus which was previously critical of on the potential harm that may Singapore commented favourably be caused. Some of the British on the effect of the new offences in offences relating to causing a child curbing human trafficking. Although

15 Although the issue still arises in the 16 See chapter on “Country Narratives – context of s 376F(1) (sexual touching of Singapore” in Trafficking in Persons person with mental disability). Report 2008 (4 June 2008).

50 | In Focus

the report maintained its stance that amendments have got off to a good the Singapore government does start as illustrated by the short but not fully comply with the minimum important judgment of Choo Han standards for the elimination of Teck J in Public Prosecutor v Wang trafficking, it acknowledged that Minjiang: it is making significant efforts to do so. The Report cited the Penal The point of interest is the Code amendments that criminalise novelty of the sentence under prostitution involving a minor under appeal. It was in respect the age of 18. of a newly created offence The Report found it noteworthy under s 376B(1). The learned that the amendments also extended deputy public prosecutor extra-territorial jurisdiction over (“DPP”) submitted that it was Singaporean citizens and permanent the legislature’s intention residents who sexually exploit that these sort of offences children in other countries, and ‘be viewed seriously and for make organising or promoting child such offences to be enforced sex tourism a criminal offence. strictly.’ … This instant case was not an easy one CONCLUSION to find the right range of The sometimes heated public sentence, especially since it debate surrounding the amendments was the first under the new ironically centred around a provision law. It does seem to me, which was not the subject of the however, that a more rigorous amendments viz the parliamentary sentence might be needed petition by NMP Siew Kum Hong to discourage international to repeal s 377A. This controversy prostitution involving persons unfortunately deflected attention the law regards as young and away from the many new sexual vulnerable … offences created for the protection of minors and other vulnerable This article is written in the author’s personal capacity and the views reflected persons. are the author’s personal views except As SMS Ho mentioned, the review where official views in the public domain are expressly cited. of the Penal Code, the “Mother of all Statutes”, may be over but the † More on the marital rape offence may work goes on to monitor how our be viewed at pp53–54 of this issue. amendments work in practice and ß More on the sexual grooming offence may be viewed at pp54–55 of this fine-tune them, if necessary. The issue.

| 51 In Focus Continuing the discussion from the previous article, two of the eight new Well-groomed sexual offences, namely sexual grooming and and Reformed marital rape, are discussed in detail together with Amended Penal Code the attendant issues with enforcement.

By Peter C Low and Priya Selvakumar, Legal Practitioners

52 | In Focus

MARITAL RAPE R’s appeal was accordingly Declaration. By 1997, only Until recently, it was dismissed, and he was 17 states criminalised common understanding, as convicted of the rape of his marital rape. In 2006, Sir Matthew Hale argued in wife. the UN Secretary General 18th century England, that Although most countries found marital rape may be a woman surrenders consent now criminalise marital prosecuted in at least 104 upon entering a marriage. rape, one cannot deny states. Of these, only 32 It was only in 1991 that the slow progress on made marital rape a specific England saw its first case criminalisation of this criminal offence while the abolishing the marital rights form of sexual assault. remaining 74 did not exempt exemption. The unanimous In December 1993, the marital rape from general judgment given by Lord United Nations (“UN”) rape provisions. Keith of Kinkel in R v R High Commissioner for Singapore has only just ([1991] All ER 481) provided Human Rights published started to recognise the the leading judgment of the Declaration on the offence of marital rape. the case. He stated that Elimination of Violence The amendments to the the manner in which the against Women, establishing Penal Code (Cap 224, 1985 lower courts had run circles marital rape as a human Rev Ed) found in s 375(4) around the exemption in rights violation. However, lift marital immunity in five order to evade it were clear not all UN member states scenarios: (a) when both indications that the rule fully recognised this parties are living apart under itself was unjustified. In a judgment or pursuant agreement with the earlier to a written separation  India has gone even further by Court of Appeal judgment, implementing the Protection agreement; (b) when both Lord Keith stated that “the of Women from Domestic parties are living apart and Violence Act which came into fiction of implied consent force in October 2006: Justin divorce proceedings have [had] no useful purpose to Huggler, “India abolishes commenced but have not serve today in the law of husbands’ ‘right’ to rape wife” been concluded; (c) when The Independent (London) rape” and that the marital (27 October 2006) (accessed 28 November intercourse with his wife is had never been a true rule of 2008). in force; (d) when there is in English law. Needless to say,  United Nations General force a personal protection Assembly, The Declaration on the Elimination of Violence  Sir Matthew Hale, Historia against Women (20 December  UNICEF, The Progress of Placitorum Coronae (The 1993) (accessed htm> (accessed 28 November ed) (London: Savoy, 1736). 28 November 2008) Art 2(a). 2008).

| 53 In Focus

order issued under s 65 As her husband, he could forms, depending on or an expedited order not be charged with “rape”. the relationship of the issued under s 66 of the Rather, he was charged with parties. Thirdly, there will Women’s Charter (Cap 353, voluntarily causing hurt, be difficulty in proving 1997 Rev Ed); and (e) when wrongful confinement and that rape took place. In the parties are living criminal intimidation. He a marriage where sexual apart, and proceedings pleaded guilty. The trial relations are expected, the have commenced for the judge imposed a total fine of evidential burden will be protection order or an $7,000. Even after an appeal very difficult to discharge expedited order. by the Public Prosecutor unless it is clear there was The new amendments, against the mild sentencing, violence or even criminal however, do not address the husband was only intimidation, as in case the injustice in present slapped with an additional mentioned above. legislation as demonstrated 18 months’ imprisonment. Amending the Penal in the High Court case Under the new law, the Code to include marital rape of Public Prosecutor v N husband will be shielded would entail giving clear ([1999] 4 SLR 619). In this from a crime otherwise definitions on actions which case, the wife moved out of deserving if the victim was would amount to consent, her matrimonial home after not his spouse. which will be difficult as a year of marriage. A year On the flip side, every marital relationship later, the wife suggested criminalising marital rape is different. However, this the couple get a divorce. does have its drawbacks. should not be a challenge to The upset husband then Firstly, it would be shy away from. threatened to kill her. considered post facto Approximately two weeks criminalisation, as we would SEXUAL GROOMING later, she agreed to his be punishing spouses for One of the new offences request to meet, but they doing what was once, which has made an soon started quarrelling according to the law, their appearance is the offence again. The husband then right. Secondly, what of “sexual grooming of dragged her into his car entails consent would lead a minor under 16”. The and drove back to their to a quandary. Consent offence aims to combat the matrimonial home. He may take on different increasing number of minors ordered her into the bedroom, stripped her of  Summary of the case  Wendy McElroy, “Spousal taken from Ms ’s Rape Case Sparks Old her clothes, tied her hands () speech in Debate” (21 February 2005) with a bath towel and Singapore Parliament Report, (accessed with her against her will. at col 2354. 1 December 2008).

54 | In Focus

who have been targeted by two prior occasions; and prevent these crimes sexual groomers – in other (b) intentionally met or from occurring against words, it aims to catch travelled to meet the our youth. Talks in predators before they are minor with the intention of schools will definitely able to inflict any harm. committing a sexual offence highlight the dangers Reports have indicated that with that minor. If convicted, posed by the Internet. the easiest prey proves the offender may be fined or Youth should be made to be girls who are lonely, jailed for up to three years aware of these predators curious or have low self- or to both. If sex occurred, and the harm they may esteem. These offenders the offender may face a be seeking to inflict so take advantage of the girls’ possible ten-year jail term. they may identify these unfamiliarity with both If the victim is below 14, the predators and seek love and sex. A Singapore offender will be convicted of help when they need Children’s Society paper statutory rape, which carries it. Hotlines have been in 2003 showed that an a jail term of up to 20 years established in the UK average of around 240 sexual and a fine or caning. to help adults who are offences against children While in theory the idea toying with the idea was recorded every year by seems logical, the law, of committing sexual the Ministry of Home Affairs however, may be difficult to offences with minors.10 between 1999 and 2002. enforce. It will be difficult Trained professionals Under the new law to gather evidence to show counsel anonymous (s 376E), a person over the a potential offender had callers on how to age of 21 will be charged the intention of committing prevent themselves from if it can be proven that he: a sexual offence against offending. Such a hotline (a) met or had communicated a minor. Saying that, could also aid youth with a minor on at least Nominated Member of who are aware they are Parliament Siew Kum Hong being “groomed” or have  Dawn Tan, “Flattery and notes, “online predators encountered a potential Gifts Often Used as Bait” (23 September 2007) Asiaone will now have to think twice, offender, and wish to difficult to prove, it’s not  (accessed 1 December 2008). impossible”. 10 Home Office Task Force  Radha Basu, “Child Sex Perhaps more may be on Child Protection on Abuse: 1 in 3 Cases is done to curb and hopefully the Internet 2008 A1Story20080121-45929.html> (Amendment) Bill (22 October (accessed December (accessed 1 December 2008). 2007) vol 83 at Col 2175. 2008).

| 55 Side Bar

My first attempt Sorry no cure at mitigation By Adrian Tan, Legal Practitioner

When I was a second-year lawyer, my In the Subordinate Courts that afternoon, senior handed me a criminal brief. It was for I waited until all the grizzled veterans had someone who had been charged with a minor “mentioned” their cases. Then I stood up road traffic offence. and explained that my client wanted to take “Don’t get too excited”, my senior told “a certain course of action”. me. “It’s a PG case.” The District Judge looked up. “He wants “PG?” I asked. “Parental Guidance? What to plead guilty, is it? Adjourned …” did he do in his car?” Plead guilty? I panicked, and interrupted “Idiot,” my senior explained. “He’s the court. “No, your Honour, I didn’t say my pleading guilty. Just mention the case in client was pleading guilty. I mean, he could court.” be, but on the other hand he “Mention it?” I asked again. “What do you could be claiming trial. We mean? Bring it up in casual conversation with don’t know.” the judge?” As a newbie, I imagined striking The District Judge said, up a chat with a judge and then saying, “You said he’s taking a “You know, your Honour, it’s funny you were certain course of action? speaking of that topic, because that reminds He wants to plead me of a case I would like to mention.” guilty?” My senior patiently educated me on how “I … No, I’m not to mention a case. “The client is going to saying that. He has a plead guilty.” certain course of action “Right,” I said. “I can do that. I’ll say that in mind, which he the client is pleading guilty …” intends to take.” “No!” exclaimed my senior. I was puzzled. The District Judge Did I get something wrong again? looked at my client. “Are “Never, never, never say that your client you pleading guilty?” is pleading guilty until he actually does so. My client looked Otherwise you’ll compromise his position,” at me. “Am I pleading my senior said. “Just say that the client will guilty?” be ‘taking a certain course of action’.” I told him, “Yes.” “A certain course of action?” I said. What Then I told the District course of action? What if the judge thought Judge, “I have to take that my client was going to run away? One instructions.” last taste of freedom? “Adjourned four “The judge knows what you mean,” weeks,” said the District my senior said. “It’s a code. I need you to Judge. adjourn it so that ‘I’ (being a code for ‘you’) It was not my most can prepare a mitigation plea.” glorious moment.

56 | Side Bar

My next task was to prepare the mitigation plea. The purpose was to move the court towards leniency and clemency. I began by reading all the available textbooks on theories of punishment. It was one of the rare exam topics that I had spotted in law school, and I still kept all my handwritten notes. I assumed that the District Judge would be familiar with Benthamite utilitarianism and Kantian retribution, and I wondered which theory he would subscribe to.

| 57 Side Bar

Would he belong to the retributive France once banned residents from dying. school? If so, he would believe in “an eye The mayor issued the unusual edict when for an eye”. That type of theory might it became clear that there was no room apply in a murder, where the convict would left in the overcrowded village graveyard himself be put to death by the State. But it in the village of Sarpourenx in the was unlikely to work in my client’s case. He Bordeaux region. In an ordinance posted had driven 30km/h above the speed limit. in the council offices, the mayor told the What would be an appropriate retribution? residents that “all persons not having a Should he promise to drive 30km/h below plot in the cemetery and wishing to be the limit for a week as a form of payback? buried in Sarpourenx are forbidden from I sighed. Retribution seldom worked in dying in the parish”. practice. I remembered reading about a He added, probably in a very spooky 24 year old from Ohio, United States, who voice, “Offenders will be severely was convicted of violating the city’s noise punished.” However, the nature of the ordinance. The judge offered to reduce punishment – apparently a fate worse than the normal fine of US$150 to US$35 if the death – was not specified. I hear that this defendant agreed to listen to 20 hours approach met with little success and the of classical music. Fifteen minutes into mayor opted for the much more successful the sentence, the rap music fan changed punishment by macrobiotic diet in the his mind and paid the full fine in order to end. end his probation. Clearly he had suffered My favourite theory of punishment is greatly. incapacitation where the offender’s ability In my case, I wondered if the District to commit further crimes is removed. Judge believed in deterrence. That has This can be done in many ways: a rapist been an ever-popular theory, especially may be castrated, or a football hooligan for the old and the old-fashioned. In banned from attending matches. A Elizabethan times, drunks were punished recent case in Arizona illustrated this with “the drunkard’s cloak”. The drunk to the extreme: a teacher with no prior was forced to don a barrel and wander convictions was sentenced to 200 years through town while the villagers jeered at in prison for possessing 20 obscene him. It might have deterred Englishmen photographs, thus setting a useful in Elizabethan times, but precedent for incapacitation through along on Friday nights? I had my multiple reincarnations – now, that was doubts. being tough on crime. In the course of my research, I came My week-long research into sentencing across a little-known theory of punishment: principles was interrupted by my senior, punishment by some unnamed-awful-thing who asked why it was taking me so long to (“UAT”). A mayor of a village in south-west write a mitigation plea.

58 | Side Bar

“It’s because I am trying to blend an My object all sublime argument for rehabilitative punishment with I shall achieve in time – one that has restorative overtones for the To let the punishment fit the crime – State,” I explained. The punishment fit the crime He called me an idiot again, and proceeded to explain the ingredients of a “You again?” said the District Judge. classic mitigation plea. I tried not to let my disappointment show. First, my client would have to express For the next 45 minutes, I expounded remorse. on the history of punishment, the “What aspect of sentencing theory is parliamentary speeches on the Road Traffic that?” I asked. Act and the fact there was no need to He looked at me as if I was speaking sentence my client at all as he had already Martian, and said, “Your client has to say seen the error of his ways. It was a dazzling sorry. And that he won’t do it again.” performance. There was not an open eye Next, my client’s background had to be in the courtroom. I ended with a heartfelt stressed. He had a clean record. plea to his Honour to let my client off with I said, “You mean I should point out to the a stern warning. court that my client is not a recidivist?” Upon waking up, the learned District My senior replied, “I don’t think his Judge said, “$500 fine.” religion matters all that much.” I felt pleased for about seven minutes, Finally, my senior told me to stress that my until I realised that the next three cases (in client was a sole breadwinner. which the accused were unrepresented) “Sole breadwinner?” I asked. “What’s also received the same quantum of fine. My the relevance of that? You mean if his wife is great speech on mitigation had no effect working, the State should punish him more at all. severely? How is that justice?” My senior sighed in exasperation, “Just As I left the courtroom, a man in the queue say that he needs his car to earn a living, he’s to go in gestured to me. “Hey, lawyer, very sorry and he has a clean record. Forget I want you to represent me,” he said. all your stupid theories of punishment.” I felt pleased. At least one person had paid attention to me. “I don’t normally Ignoring my senior’s advice, I went to the take walk-in clients, but I will accept you,” next hearing with a 25-page mitigation plea I said. “Just tell me one thing. Why did you and a basket of bound authorities. pick me?” I asked, shamelessly fishing for a I opened with a witty ditty from Gilbert compliment. and Sullivan’s The Mikado delivered with The man said bluntly, “The policeman what I thought was dramatic flair nuanced there said those with lawyers can go first. with fervent belief: And you look like the cheapest one.”

| 59 Side Bar

On the Bookshelf Sentencing Principles in Singapore By The Honourable Justice , Supreme Court of Singapore

Title: Sentencing Principles in Singapore Author: Kow Keng Siong Publisher: Academy Publishing Extent: 1,500 pages (approx) (leather bound hardcover and softcover) Price: Upon request

Sentencing an offender is the last stage of the judicial process in a criminal case; it is the final part of the judicial opinion as to what should be done about the offender. The decision in each case as to what the sentence ought to be is often a difficult one to make because the court, in determining what is appropriate, has to take into account two principles, each equally valid, each equally important, yet often pulling the court in opposite directions. The first is that the punishment must fit the crime, and the second lies in the law’s affinity for consistency. The

60 | Side Bar

problem with the first lies in the conflicts a relevant difference in their responsibility for between rival theories of punishment. the offence or their personal circumstances” Generally, crime precedes punishment. The [emphasis in original]. That might be problem with the desirability of consistency unavoidable because the author was in sentencing is that the court is required to obviously keeping strictly to his selected take into account all the circumstances of the format so as to avoid confusion from too case. many distinctions. Enter Sentencing Principles in Singapore. It is a pity that the format, and probably This is an encyclopaedic reference book space, did not permit the author to make which is a repository of an impressive commentaries of his own to enlarge or add collection of case law on sentencing, all on to some of the judicial statements which in 37 chapters. Although one might think would have benefited from explanation. For that all this would be too much in any one instance, on “aggravating factor”, under book, the handiness of the volume alone “Deliberation, Premeditation and Planning” makes this book an invaluable reference in chapter 16, the author set out the book. The form adopted by the author statement, “It is well established that where seemed to be the most practical one in view an act is done after deliberation and with of the wide coverage of topics. The form premeditation as opposed to the situation is applied consistently through the book. where it is done on the spur of the moment The author stated the broadest rule on and ‘in hot blood’, that is an aggravating each point by selecting a quotation from a … circumstance”. This is an instance where case that applied or referred to it. He then it would be helpful to have a footnote proceeded to set out various other cases that on what distinguishes “deliberation and followed, expanded or deviated from that premeditation” from “intention”, and why rule. The discerning reader may, however, a long period of deliberation amounts to an feel uncomfortable with the liberal use of aggravating factor – that is, that the offender the word “principles”. Some statements, had the opportunity of cooling off, recanting, sensible and obvious have been elevated to and regaining his senses, perhaps, and the status of “principle”, for example, on the yet chose to commit the offence. Another topic of “Sentencing Accomplices” in chapter point worthy of reflection is, why should 13, the author described the following deliberation be considered an aggravating statement as a “General Principle”: “Where factor, rather than to consider offences two or more offenders are to be sentenced committed in “hot blood” as a mitigating for participation in the same offence, their factor. There are no straightforward answers sentences should be the same, unless there is but a footnote or two to indicate issues that could be taken up further would greatly

 Deterrent sentences are designed to impose enhance this book. The neutral stance taken punishment against crime in future. by the author was essential to the overall

| 61 Side Bar

function of the book as a reference and interested or involved in the criminal law. sourcebook. In this way, a questionable It has covered all the areas that one might statement was able to attain the status of need to know about the sentencing of an “principle” since the author probably felt offender. It had provided the sources and that he was not at liberty to comment on it. pointed the way to further thinking on all In “Sentencing Objective”, under chapter 14 the issues raised. The breadth and scope of on “Sentencing Strict Liability the book are admirable, and Offences”, for example, the it is likely that a place will be following passage was taken to The breadth and reserved for it on lawyers’ be a general principle: “[T]he scope of the book bookshelves. When the reader only objective for the most part closes the book, he will find that there could reasonably be are admirable, and it much to think about on the behind sentencing for a strict is likely that a place subject of sentencing an liability offence is that the offender. Some will think of sentence be … retributive.” will be reserved future crimes averted; some There appears to have been a for it on lawyers’ of the prisoner reformed; mix up between “retributive” others of the victim’s cathartic and “deterrent” in the decision bookshelves. release; and some, all of these cited. Retributive punishment things. As facts merge, blend, is deserved punishment; hardly a reason for and disperse in the one case and the other, punishing strict liability offences where the one learns that the ideal sentence is not offenders may sometimes not be deserving of easily identifiable. When facts interfere with punishment. Deterrence, which is utilitarian hypothesis, judgment loses its certainty and in nature, is a sentencing principle that finds accuracy; and we might feel compelled to its emphasis in a desired result, and is less reflect on John Garner’s questions: “What concerned about desert or justification. good comes out of criminal punishment? Some statements seem too broad and How does it help to make the world a better those too, would have benefitted from the place?” author’s personal commentary. In “Offended Due to Ignorance of the Law” in chapter 18, Sentencing Principles in Singapore will the judicial statement selected, “[I]gnorance be available in February 2009 for purchase of the law can hardly be a mitigating factor”, through Academy Publishing’s online required temperance. Ignorance of the law is bookshop at www.sal.org.sg and major no excuse for crime, but why could it not be a bookstores. mitigating factor in some cases? The comments above does not detract  From his introduction to Hart’s Punishment and from the immense value that this book is to Responsibility (Oxford University Press, 2nd Ed, lawyers, judges, the academia, and anyone 2008).

62 | Buzz

The Honourable Justice K G Balakrishanan Chief Justice of India By Nathaniel Khng, Assistant Registrar and Justices’ Law Clerk, Supreme Court and Prem Raj Prabakaran, Justices’ Law Clerk, Supreme Court

The Honourable Justice Konakuppakatil Gopinathan Balakrishanan, Chief Justice of India, the guest speaker at the 15th Singapore Academy of Law Annual Lecture, is the epitome of the notion rags to riches. Coming from a humble background, he was influenced by his father, a former chief administrator in the courts, to read law. Thereafter, with his exemplary work ethic, he was elevated from the Bar to the Bench and eventually to the highest judicial position in India. In his usual kindly manner, he offered to take time off from his busy schedule in Singapore to share his views on legal practice, the Indian judiciary, and crime and punishment.

LEGAL PRACTICE Legal practice in India Balakrishanan CJ commented that the state of legal practice in India today is much better than it was in the past. Since the last ten years, with globalisation, an increase in commercial disputes, and new legislation, opportunities have increased for both seasoned lawyers and young lawyers. Moreover, the relationship

| 63 Buzz

between the Bench and the Bar has The Judiciary plays a wide strengthened over the years. role in the development of the Ties between the legal systems of Indian and economy. Those engaged in Singapore Balakrishanan CJ recognised the fact that commercial enterprise will look Singapore and India have traditionally at whether there is stability and enjoyed very warm and close relations due the rule of law. Only if there is a to the shared historical and cultural ties. That aside, he also pointed out that as good judicial system can there there are many common features between be better development of the the Singaporean and Indian legal systems, both systems could look to each other economy. for guidance. In this respect, he noted, – Balakrishanan CJ with approval, the fact that subscribers to LawNet would soon have access to Indian decisions. devoid of prejudices. Young judges, he said, Balakrishanan CJ also declared that should strive to develop these characteristics. arbitration and mediation would be areas in which the legal systems of Singapore The Indian judiciary and India would have the most interaction. Balakrishanan CJ stated that one of his goals He made mention of the fact that the for the future would be the improvement main arbitration centres in Asia would be of the Judiciary in India. In his opinion, Singapore and Hong Kong, but opined that educating judges to develop the law, write for a number of reasons, Singapore would good judgments and analyse cases is a be more attractive to Indian companies than continuous process. At present, there is a Hong Kong, due to the greater number of judicial academy at the national level to train business transactions between Singapore judges and all the states with High Courts and Indian companies and Singapore’s have their own judicial academies as well. closer proximity to India. Balakrishanan CJ also made reference to recent initiatives by the Indian judiciary. ON BEING A JUDGE One such initiative would be the setting up Personal philosophy of special courts to deal with the mounting Balakrishanan CJ shared his judicial number of corruption cases involving the philosophy of the law being an important politically influential and financially mighty. tool to shape the life of the people in the Another would be the setting up of mobile country. He opined that all judges have courts. For these initiatives, the Government to have patience and dedication, and be was requested to provide the necessary

64 | Buzz

funding. In this regard, Balakrishanan CJ plans in place include increasing the strength stated that while the separation of powers of the Supreme Court Bench. of the various branches of Government is very much present in India, the reality would CRIME AND PUNISHMENT be that only the Executive can assist in the Reform of the Penal Code and the Criminal establishment of infrastructure as this requires Procedure Code funds which the Judiciary does not have. Balakrishanan CJ was aware that the bulk Balakrishanan CJ also commented on of Singapore’s criminal law is to be found the various approaches to the appointment in the Penal Code (“PC”) which is based on of judges in the recent past. Prior to 1993, the Indian PC, and that similarly, Singapore’s the Chief Justice of India was to be merely Criminal Procedure Code (“CPC”) draws consulted on the appointment of judges. much from India’s CPC. He commented that The Government would suggest a name and extensive reform of the PC would not be the Chief Justice would give his opinion. needed and emphasised that the PC should Presently, the Chief Justice along with be considered “to be a piece of beautiful his fellow judges suggest the names of legislation” which “has taken care of many candidates to the Government who will then things very well”. In his view, new legislation consider the appointment of the various can supplement the PC if any new offences candidates. Neither system, however, arise. Likewise, he stated that he had no proved faultless, with the present “judicial serious issues with the CPC. primacy” appointment system producing its fair share of tainted judges, while the Anti-terrorism laws “executive primacy” system resulting in the Balakrishanan CJ expressed the opinion appointment of Executive-compliant judges. that while there is a need for anti-terrorism There is now serious talk of establishing a legislation, any such legislation should Judicial Commission for the appointment of contain sufficient safeguards to insulate judges. The composition of the Commission, the public from its possible misuse. He however, is still a matter of debate. emphasised that once drastic amendments to Balakrishanan CJ was also candid about the anti-terrorism laws are made, there are the backlog of cases in the Supreme Court of bound to be situations where the laws will be India, which currently stands at approximately abused. In his opinion, terror laws should be 48,000. He emphasised that maintaining the strict, but safeguards should still be put in rule of law in India is not a problem; rather, place to prevent a violation of human rights. the major challenge would be the large Safeguards may include, for example, the number of cases clogging up the system. use of investigators who are of a high level Unfortunately, he said, while disposal rates of seniority and allowing relatives of the have increased, the number of cases has also accused person to have more access to the increased. To tackle the problem, he said, the investigation process.

| 65 Buzz The Next Step In e-Litigation The integrated Electronic Litigation System

By Yeong Zee Kin, Assistant Registrar, Supreme Court

iInside page

This is the first of a series end is familiar to filing clerks and legal of articles over the secretaries, most lawyers are quite lost in the coming few issues that will complex user interface. iELS will address this introduce various aspects by providing views of the electronic case file of the iELS to the legal customised for different users. profession. This article focuses on how lawyers Filing clerks and legal secretaries should will interact with the iELS. still see some familiar and useful features of the current EFS front end in the redesigned iELS “mail room”. From this centralised “mail Though part of Singapore’s litigation room”, they can file and receive incoming scene for almost ten years, the Electronic documents or court correspondence. Filing System (“EFS”) still stands on its own For lawyers, the redesigned electronic and is not integrated as part of modern-day case file will allow full access to all litigation practice. documents filed by or served on them for as In August 2008, the Judiciary awarded long as the case remains pending instead of a contract for the development of an the present “14-days window” after which integrated Electronic Litigation System documents are archived. (“iELS”). When ready in 2010, the iELS will iELS will also be a focal point for bring new heights to the deployment of collaboration between lawyers and their technology for litigation processes. clients as clients can see draft documents using iELS. In addition, a variety of alerts ACCESSIBILITY (by e-mails and SMS) will allow lawyers to To each his own be proactively informed about documents One of the hallmarks of iELS will be greater filed by or served on them. Lawyers can also accessibility. Whereas the current EFS front receive reminders about upcoming hearings.

66 | Buzz

each lawyer and his support staff access to cases they are involved in (but not others). When someone leaves the firm, it will be the same simple process to remove him from the list of authorised users.

Take your pick The theme of accessibility is carried through to the filing process. When an application is filed, a window of available hearing iHomepage dates will open for the lawyer to choose a preferred date. This should ensure that at least the applicant will be available and For the firm administrator, financial and the date would, in any event, be within the hearing information can be downloaded for usual window for such applications. If there integration with the firm’s internal systems. is a need for an urgent hearing date, such a There are plans to develop a set of reports request may be made when the document to inform administrators of iELS usage in the is filed. The Duty Registrar may grant the firm. request or he may ask the lawyer for further explanation before making a decision. User authentication The EFS smartcard will finally be retired in FORMS AND FUNCTIONS favour of a simpler authentication system. Another major improvement iELS brings After careful consideration, the Judiciary is the use of Infopath form technology as has decided that the adversarial system and the underlying technology for the filing of the openness of the litigation process are court forms. iELS will move away from the sufficient checks on any potential misuse. present paradigm where a court document This move is complemented by a more is prepared with a word processor, scanned sophisticated back-end security system that into PDF for filing, and the required will provide different levels of authorisation. information is filled into an online Web This results in all lawyers and staff in the form, often retyping information already in law firm having access to the iELS front the court form. iELS will provide users with end. Access is granted by a simple process a library of electronic court forms, each of of enrolment of that lawyer’s or staff’s user which is an Infopath e-form. These forms can identification into iELS and a role assigned be downloaded and completed offline or to that user. With the correct assigned roles, online. law firms can restrict the filing of documents Since these court forms will have an to a smaller group of users and still allow underlying data structure, it can understand

| 67 Buzz

the information typed into them. download the entire or selected documents Information in the court form need not be onto a thumb drive for work offline. typed again and there will be no separate Providing advice on the laws you need...... from the places you are. online form to complete. Information need Content syndication only be typed in once, and will be re-used With information re-use in mind, iELS thereafter. Once the court form is prepared, will have increased features for content it is ready for filing. No other form will be syndication. At the moment, there are plans required. Further, the e-form will look like to syndicate hearing lists at the law firm, the court form lawyers are already familiar the case and the lawyer level for integration with. of hearing dates into the firm’s and lawyer’s The use of Infopath technology will also calendars. The current ability to download allow us to embed rules within the e-form financial information will be boosted with that can check the completed information. new technology to allow better integration For example, if a section of the e-form with law firm’s practice management requires an NRIC number, the form will and accounting systems. If there are any alert you if the NRIC number fails (due to suggestions for syndicating additional a mistake) the basic verification check. information, the iELS Front End Working Similarly, documents that are required to Group will be happy to receive them. be filed together in the same bundle will be made available in a QuickPack and if any White lists document is missing, you will be alerted. With the move towards open technical The benefit is that most mistakes can be standards, iELS will move away from identified by iELS before the forms are filed using only the PDF format to a list of Conyers Dill & Pearman resulting in less documents being rejected acceptable electronic file formats. Hence, The Offshore Law Firm and filing fees deducted. future exhibits need not be only in PDF. This should make it easier to attach PERVASIVENESS spreadsheets, plans and drawings to Corporate, Company & Commercial Commercial Litigation Trust & Private Client Anytime, anywhere exhibits. The list will be published in due Insurance & Reinsurance Commercial Litigation & Arbitration Complex Corporate Trust Structures With a simpler authentication system, it is course. Investment Funds Insurance & Reinsurance Disputes Private Trust Companies Shipping & Aircraft (Finance & Registry) Insolvency & Restructuring Estate Planning possible for court documents to be filed Securitisation & Structured Finance anytime, anywhere. With the electronic case YOUR PART IN THIS file providing access to all documents filed When the iELS prototype is ready, we will For general enquiries by, served on or otherwise received by the be organising feedback sessions to gather Telephone: +65 6223 6006 law firm for the life span of the case, the your comments. We also need volunteers E-mail: [email protected] lawyer will have access to the documents who are prepared to “kick the tyres” of this anytime, anywhere with an Internet prototype. So if you are keen to have a go, www.conyersdillandpearman.com connection. Further, the current Pack-n-Go do let us know (e-mail: lim_seng_siew@sal. feature will be enhanced to permit him to org.sg). Anguilla Bermuda British Virgin Islands Cayman Islands Mauritius

Dubai Hong Kong London Moscow Singapore

68 |