(Delivered in Parliament on 6 May 2019)
The Bill today is the culmination of the work of the Penal Code Review Committee (PCRC), as refined by public feedback. After the Bill was tabled in Parliament for First Reading in February, the Second Reading was deferred to May, which was useful to give the House more time to study the Bill.
The Workers’ Party is in general support of the Bill, which makes several broad-based improvements to our primary criminal law viz. the Penal Code, and to related laws. To me there are four aspects particularly worth mentioning.
First, the Bill updates the law to handle new and emerging crimes such as online crime; for example, the offences of theft and cheating are to be broadened to cover theft by online fund transfers, and keying in false information into machines to generate potentially harmful outcomes. Secondly, there is a new concept of Presumptive Minimum Sentences; this will give sentencing judges some discretion to depart from the mandatory minimum sentences for offences in certain situations. By introducing some flexibility to the court, there would be less need for plea bargaining, making justice more transparent. Thirdly, there are changes to strongly deter and punish crimes against victims who are more vulnerable, such as minors under 14, domestic workers and vulnerable adults. Fourthly, the marital rape immunity will be removed; this has an important signaling effect that society today views marriage as a union between equal partners.
Despite its positives, I have some queries and uncertainty over some aspects of the Bill. For today’s debate, I will focus on just two matters. They are:
1. The approach towards offences of causing hurt;
2. Vulnerable victims.
Approach towards Causing Hurt
For the past decades, the offence of voluntarily causing hurt under Section 323 of the Penal Code has been a non-arrestable offence, meaning that the police are ordinarily not able to arrest the suspect without a court warrant. In addition, being a non-arrestable offence, the typical advice given to VCH victims is that the police will not investigate the matter unless the victim goes to court to obtain a Magistrate’s order to direct the police to investigate, or the victim can pursue a private summons against the perpetrator. Pursuing a private summons will require the victim to spend time, effort and costs, without police assistance.
VCH is a common offence that occurs daily. When I last filed a Parliamentary Question in 2014 on the incidence of VCH, it was revealed that the cases reported to police amounted to about 10,000 cases a year. This is a large number compared to other reported offences; in fact, the total crimes recorded last year was about 33,000, which I believe excludes the 10,000 VCH reports. The figure of 10,000 cases is also likely to be an underestimate, as many cases may go unreported. Of the 10,000 reported cases, only about 600 resulted in criminal charges being filed, a rate of about 6%.
The PCRC is right to note that some past scenarios of VCH can in fact be quite serious. In some cases, the injuries may be permanent; there may be elements of bullying or of being outnumbered by a few assailants. Accordingly, I am supportive of the introduction of Section 323A, to create a new offence of causing grievous hurt even though only hurt was intended; this will be an arrestable offence attracting higher punishment of up to 5 years jail, which the police will be empowered to investigate without a Magistrate’s order.
At the same time, the Committee rightly pointed out that some victims may sustain injuries which are serious and yet do not fall within the definition of grievous hurt e.g. multiple injuries caused in a prolonged attack. The Bill’s response to this is to raise the maximum imprisonment for VCH itself from 2 years to 3 years, but to continue to keep it as a non-arrestable offence. It was stated in the PCRC Report that the need for a Magistrate’s complaint would ensure that only meritorious cases were investigated by police. The Report further emphasised that the police did itself take the initiative to investigate and prosecute in the “egregious” cases.
I have some queries about this approach. First, I noted earlier that only 6% of VCH reports result in criminal charges being filed. What kinds of scenarios have resulted in the police initiating investigations and prosecutions without a Magistrate’s complaint being filed? How are VCH cases currently triaged for action or non-action? Secondly, of the balance 94% of cases reported where no charges were filed, what is the police assessment of the purpose of the victims when they reported the cases to police? Is there a mismatch of expectations, e.g. did most victims expect the police to take some action? From time to time, I encounter residents who are VCH victims, who express surprise and disappointment that the police are not taking up their complaints. Thirdly, does the Ministry not acknowledge that relying on victims to file a Magistrate’s complaint requires victims to have the resources, and a certain fortitude, to navigate the legal system on their own? It is probable that this requirement to see a Magistrate may not necessarily flag out the most meritorious cases, but cases with the most determined victims.
I am mindful of the workload of the police, and I am not asking for all VCH cases to be made arrestable. The changes proposed in the Bill to create the new S 323A and to increase the maximum punishment for S 323, are improvements and will facilitate more robust responses to the more serious VCH cases. Nevertheless, I think the situation needs further clarification and further monitoring to ensure that members of the public get justice for hurt offences.
Vulnerable Victims
In this Bill, there are particular groups of victims deemed as vulnerable and in need of extra protection. These groups are: children under 14 years of age, domestic workers, vulnerable adults, and victims in intimate or close relationships. Such extra protection is found in the amendments to the Penal Code at Section 73 and 74A, and the new Sections 74B to E. These sections prescribe that where a victim belongs to one of these vulnerable groups, the offender could be sentenced to twice the maximum punishment applicable to the offence. However, this potential exposure to twice the maximum punishment is subject to a caveat: if the offender can prove that the victim was capable of protecting herself or himself in the same way as an ordinary person, then the exposure to double punishment would not apply. I am concerned about what this caveat means and how it would potentially undermine the extra protection that was intended. To be more explicit: in what way could it be shown that a domestic worker, a dementia patient or a child under 14 was equally capable of protecting themselves as any ordinary person? Clarification on this point would be instructive.
Next, while the Penal Code may be amended to enhance punishments, it would be far better if the provisions were not invoked but instead achieved the goal of general deterrence i.e. to prevent incidents from happening in the first place. In this regard, what plans does the government have to publicise these changes, either to the general public, or in a targeted manner?
Finally, I have a query on minors between 16 but under 18 years old. This Bill introduces new offences to protect those above 16 but below 18 years, if the accused was in a relationship with the victim that is defined as an “exploitative relationship” under the new S 377CA. This is an important signal to parents, step-parents, guardians and other persons who are able to exercise some control or influence over the minor, not to take advantage of young persons below 18. Protecting minors under 18 years is consistent with the UN Convention on the Rights of the Child, which Singapore has signed and ratified.
In this connection, I would like to clarify the amendments being proposed to the Children and Young Persons Act (CYPA). Under Clause 171 of the Bill, enhancements are being made to protect children and young persons from being ill-treated and from being sexually exploited. Under the current CYPA, the definition of “young person” has a cut-off of 16 years, but the Ministry of Social and Family Development (MSF) has announced that it will raise the cut-off age for protection of young persons from 16 years to 18 years. MSF recently conducted a public consultation and intends to table the change later this year. Can MHA clarify whether the changes it is making to the CYPA under this Bill will be brought into effect at the same time that the definition of “young person” is raised to 18 by the MSF?
Conclusion
In conclusion, I believe that the Bill overall brings about positive change and the Workers’ Party is in support of it.