Author(s):Several

Prospective Amendments to Singapore’s Penal Code

(Original Enactment: Ordinance 4 of 1871) Date Commenced: 16 September 1872

In July 2016, Singapore established a Penal Code review committee intended to perform a comprehensive assessment of the legal provisions currently protecting marginalized communities and members of the adolescent demographic. As of September 2018, the Committee has requested heightened legislative care for topics encircling sexual and violent crimes outlined under the Penal Code. Specifically, authorities have demanded the immunization of rape under marriage and criminalization of attempted suicide be repealed. Additionally, the anticipated Penal Code revisions will include increased repercussions for sexual predators preying on minors, offenses executed against mentally or physically debilitated individuals, and create explicit punishment for acts of voyeurism and consuming pornographic material. The Penal Code review committee has currently tendered 169 recommendations, a significant proposed alteration since its last review in 2007. Although the previous substantial modifications to the Penal Code commenced just over a decade ago, Singapore’s Minister for Home Affairs and Law denoted that novel changes are necessary to ensure the 150 - year old Code remains up-to-date with societal interests and development. Although Singapore’s proposed amendments are still subject to public feedback, the Ministry for Home Affairs and Minister for Law has released an extensive report on the proposed changes. This article is directed at evaluating these alterations.

Published on August 2018, the Penal Code Review Report was issued with the objective of performing a thorough evaluation of Singapore’s Penal Code and fashioning suggestions to resolve insufficiencies hindering public welfare and criminal liability stemming from moral culpability. According to the Report, the Committee is tasked with reforming the Penal Code so that outdated offenses are omitted, offenses entailing greater specificity are included, crimes already punishable by other legislative regulations are eliminated, and to ensure that the punishment-offense proportionality remains appropriate. The 2018 Report consists of seven chapters, comprising efforts to match advancements in technology and crime trends, to augment the protection of vulnerable persons, modernize the 150-year-old Penal Code, unify preceding Penal Code provisions, and revise incarceration sentencing standards.

Recommended Changes to Modernizing Technology

The Committee has suggested two predominant amendments to the Penal Code in relevance to crimes committed within a virtual platform. These recommendations consist of altering sections 22 and 378 of the Penal Code. The Committee has advised creating an extensive “definition of property which will cover intangible and incorporeal property” (s 3.1). Additionally, section 378 is called to be revised “to account for the possibility of theft of incorporeal property” (s 3.1). Under the current Penal Code, the term “property” is broadly defined, to include both immovable and movable assets. While the Penal Code’s description of movable property can extend to include virtual assets, the Committee has foreseen necessity to amend the definition to specifically highlight protection over intangible goods such as virtual currency or air miles. When initially enacted, due to the technological restrictions of the era, the Penal Code could not consider misappropriation of incorporeal property. The committee notes that “the narrow historical conception of theft and dishonest misappropriation fails to protect the intangible property which is now part of ordinary life” (s 3.1.6). The Committee has proposed the new Penal Code which redefines “property” to incorporate both movable and immovable, including incorporeal property.

The Committee has also requested an amendment to be made to section 30 of the Penal Code. This revision will broaden the legal parameters of “valuable security” to comprise electronic archives. Without revision, the technological extent of the word “document” under section 29 of the Penal Code only covers devices containing data (such as a disc), not an electronic form (such as a PDF). Section 3.4 of the Review advises applying new offenses associated with computer programs. The Committee adamantly expresses the necessity of developing “a suitable framework to address the issue of criminal liability for harm caused by computer programs.” While the original Penal Code acknowledged the need to reprimand acts of omittances which caused injury through machinery use (s 287), the respective section does not target the eminent dangers computer programs pose to humans. The Committee emphasized an amendment to the Penal Code is needed which criminalizes the deceptive and psychological distress autonomous computer programming can cause. The Report suggests if “mismanaged, computer programs have the same or even greater potential for harm than machinery” (section 3.4.8). Although up to now no legislation worldwide has been passed to criminalize artificial intelligence systems, the Report indicates the Singaporean government must commit to research and pave the way to address such political concerns. According to the Committee, Penal Code reformation criminalizing negligence and risk-creation concerning computer programming could “impose potential criminal liability on (i) those who make and alter computer programs and (ii) those who use them…this offense covers acts and omission which may be merely negligent” (s 3.4.13). Under the revised Penal Code, it is likely a duty of care will be established to mitigate harms which may arise from computer programming.

Recommended Changes to Addressing Developing Crime Trends

The Committee also aims to expand the offenses constituting a criminal act of fraudulence. Under the new proposed recommendation, any individual who “fraudulently or dishonestly, (a) makes a representation, (b) fails to disclose information which he is under a legal duty to disclose, or (c) abuses, whether by act or omission, a position he occupies in which he is expected to safeguard, or not to act against, the financial interests of another person” (s 7.6) can be held legally culpable for an act of fraud. This suggestion is intended to parallel the UK Fraud Act 2006. The new fraud provisions will include identical sentencing practices as those currently stipulated for cheating (ss 415-420 of the Penal Code). Two categories will exist for the new fraud offense. In the event an act of fraudulence causes injury, the offender will be subject to arrest. If fraud does not result in loss or damage, no arrest will occur. These two variants are fashioned with public policy in mind, attempting to curtail the number of fileable police reports.

Also relating to fraudulence, the Committee has recommended adding a provision under the Penal Code which criminalizes the obtainment of services fraudulently and deceptively. This offense will entail penalizing acts where

Services are obtained without full or partial payment

There is no intent on fully or partially pay for a product which is knowingly available on the basis that payment is expected

The Committee has suggested that the crime of obtaining services fraudulently will be punishable with a fine and or maximum sentencing of 10 years.

Section 12 of the Report discusses the need for creating detailed offenses for “the observation of a person in circumstances where the person could reasonably expect privacy…[and the] making, distribution, possession and accessing voyeuristic recordings.” The current Penal Code does not provide specific provisions criminalizing the act of observing or recording individuals undressing or performing acts of intimacy. With this said, the Penal Code includes provisions such as “Insulting the modesty of a woman” and “Possession of obscene films” which have historically been used to punish voyeurism. It has been argued that while voyeurism can be chargeable under various Penal Code sections, the existing provisions are ill-suited for handling issues arising from technological advancements. For example, the current law is unable to address content such as “upskirting” videos. The Penal Code recommendation branches beyond criminalizing the physical act of recording or photographing intimate situations, to deem it an offense to observe an individual in a situation where they could expect privacy. The Committee has outlined circumstances where someone could reasonably demand privacy, to include: if an individual is exposed, interacting in sexual activities, or undressing. The new proposed voyeurism rule will punish intentional acts of observation or recording without the other party’s consent. Additionally, an offense will be created for the distribution and possession of voyeuristic material. Sentencing will vary via voyeuristic offense, but offenders can be sentenced to a maximum of five years imprisonment.

Beyond voyeurism, a new offense concerning sexual exposure will be adopted. According to the Report, sexual exposure “refers to situations where an offender displays his genitals intending or knowing it likely that such display would humiliate or cause distress of fear to the observer” (s 14). The current Penal Code contains three provisions (appearing in public nude, obscene songs, and gestures insulting a woman’s modesty) which relate to exposure. However, it has been argued such provisions do not fully capture sexual or malicious intent, the prescribed penalties are too little, and the exposure of genitals in a private location is not criminalized. The limitations of the Penal Code in respect to the wrongdoing of sexual motives can be illustrated through PP v Budiman Shah Mohd Noreel Azman. In this case, the defendant had molested a woman on a train and exposed himself in public on seven counts (which included sexual exposure to young adolescents). Upon his sentencing, he was only charged with committing an obscene act and faced nine months incarceration. Under the new sexual exposure provision, any offense committed against an adolescent below the age of 14 will be subject to a maximum prison sentence of two years, a fine, or caning. If the victim is 14 years or older, the offender will be issued a punishment of no more than one year (and/or the other penalties listed previously).

Recommended Changes to Enhance Victim Protection

One of the most critical alterations to Singapore’s Penal Code involves repealing ss 375(4) and 376A (5) which establish immunity for marital rape. Efforts in 2007 were taken to withdraw marital immunity, but instead, attunement was assumed. As a result, a balance was met which dually preserved “the conjugal rights and expression of intimacy in marriage…[while] protecting women who had signaled a withdrawal of their implicit consent to conjugal relations” (s 15.7 of the Report). The Committee has asserted despite attempting to achieve an equilibrium, women’s rights and protections against sexual abuse are still not protected adequately. As a result, the repeal of marital immunity for rape will be repealed in entirety. This outlawing will align Singapore with the UN General Assembly’s pronouncement that marital rape is a heinous violation of human rights.

Reviewing the Penal Code’s active sexual offenses against minors, the Committee has suggested three primary recommendations: the age of consent is to remain at 16, the age of 14 will be retained as the cut-off for statutory aggression, legal protection in cases of sexual exploitation for minors from 16 to 18 should be heightened. The Committee’s rationale for increased protection for this specific age demographic is as follows: the propagation of smart technology has enabled minors to be subject to higher levels of manipulation by predators. This potential for victimization provides justification to increase the minimum age for all sexual offenses involving exploitation.

Section 17 of the Report specifies an enhancement of the maximum penalties “for offenses committed against children, vulnerable persons, and domestic maids, by up to two times the maximum punishment the offender would otherwise have been liable to.” (141) While courts in Singapore typically consider the vulnerability of a victim when issuing their verdicts, current sentencing ranges debatably do not include sufficient maximum penalties for offenders. Therefore, the Committee has advised altering penalties for offenses “deliberately target[ing] vulnerable persons, on account of their vulnerabilities” (s 17.2). One amendment suggestion has encompassed expanding the spectrum of offenses under the Penal Code which relate to child vulnerability (such as crimes causing physical injury). The Committee has declared children under the age of 14 must be provided greater protection as “such young children are generally physically smaller, more naïve and easily exploited” (s 17.7).

Penal Code s 84 currently outlines the defense of unsoundness of the mind. If an individual qualifies as being mentally unsound, their charges may be acquitted, and the individual sent to a psychiatric institution. The Committee has acknowledged the value of retaining the provision relating to unsoundness of the mind but has requested the term be modernized. The recommended revision includes incorporating volitional disorders into the defense. The amendment is proposed as the Committee is “of the view that there is no good reason why the criminal law should not account for the fundamental principle that a person is not to be held criminally responsible for involuntary conduct” (s 24.11).

In total, the Penal Code Review Committee’s Report provides 169 amendment recommendations. Through updating and removing outdated offenses, modernizing general principles and substantive crimes, and ensuring proportionality between an offense and its respective punishment, Singapore’s Penal Code will be better equipped to protect those most vulnerable and provide greater deterrence for potential offenders.