Speech on Penal Code (Amendment) Bill – MP Sylvia Lim

by MP for Aljunied GRC, Sylvia Lim


This amendment bill makes an important and overdue change regarding the sentencing of homicide cases. Overall, this is good step towards a more just sentencing regime for homicide, and I support it. Nevertheless, there are still serious issues requiring law review which I believe the government should look into in due course.

Some justice returned to sentencing in homicide
It is overdue but very welcome that the government recognises that the existing definition of murder under Section 300 of the Penal Code is just too wide to justify the death penalty in every case.

For instance, Section 300 limb (c) has long been criticised by academics for attracting the mandatory death penalty. Under this limb, a person is guilty of murder if he intentionally inflicts an injury which causes death, not necessarily knowing that the injury is of a fatal nature. A classic example is a stab wound to the thigh, which many people do not realise is usually sufficient medically to cause death due to a severance of the femoral vein (PP v Lim Poh Lye [2005] 4 SLR (R) 582). In such cases, the accused person may not have intended death and may not have even known that death was likely to result from the injury. It was clearly too harsh to have mandatory death in such cases.

Accordingly, I am pleased to note that the death penalty will no longer be mandatory for murder under S 300(c) and also for S 300(b) and (d), where the accused did not have a specific intention to kill. The alternative of life imprisonment gives the judge some room to give weight to the circumstances of each case. This is a progressive step to give some discretion to the courts, so that any mitigating circumstances can be taken into account.

 

Should mandatory death be maintained for 300(a)?
During the Misuse of Drugs Act (MDA) debate, I had touched on the mixed nature of studies which tried to ascertain the deterrent effect of the death penalty on homicides. I had also spoken then about how the mandatory death penalty shifts power away from the courts to the Public Prosecutor (PP), enabling him to determine the outcome of the case through the choice of charge. I note the Minister’s earlier statement during the MDA debate that former Attorney-General Walter Woon’s reservations about the mandatory death penalty shifting power to the PP applied particularly in the context of homicide cases.

Now that the Bill retains mandatory death for S 300 (a), is mandatory death justifiable as retribution for intentional killing? Having an intention to kill is certainly more blameworthy than the mental states required under S 300(b), (c) or (d) – after all, the accused in S 300(a) intended to bring about the death of the victim. However, a closer examination of situations coming within S 300(a) will show that an intention to kill can be present in a wide range of circumstances, which I would submit should not be lumped together for the same sentence of death.

At one end of the spectrum, taking the most evil of circumstances, we have mercenaries hired under contracts to kill, intending to profit from committing murder. We have also had groups who rob and kill hard-working taxi-drivers with deadly weapons. Moving to the other end of the spectrum, we find more multi-faceted scenarios where the accused is not inherently a killer. For instance, an accused kills a childhood friend whom he discovers has been having a long affair with his wife behind his back, in his matrimonial bed, and is unable to get over the betrayal despite a lapse of time. Another example is where a person who kills under a threat that his child will be killed if he does not do so, will be guilty under S 300 (a), because the defence of duress does not apply to murder. An intention to kill can also be formed on the spot. There is no requirement under S 300(a) for premeditation or any pre-arranged plan to kill, whereas in some other jurisdictions, murder which is not pre-meditated is classified as murder in the second degree.

Do all accused coming within S 300 (a) deserve to die, without exception? At the lowest, there would be a split of opinion on the matter. If I could borrow a phrase from the judgment of then Judicial Commissioner Sundaresh Menon, now our Chief Justice, in PP v Lim Ah Seng [2007] 2 SLR (R) 957: “Every killing is utterly tragic; but this does not mean that every killer is to be punished in the same way”.
It is true that persons charged with murder under S 300 (a) will not hang if they can prove that they have a valid defence under the Penal Code. For instance, if the accused can prove that he acted in self-defence, this is a full defence leading to acquittal. If he can show that he was provoked by something sudden and grave, he may have a partial defence which would reduce his sentence to a long jail term. However, these defences will only succeed if the accused is able to prove them in court on a balance of probabilities. Because the burden of proof is on him, he must convince the court and preferably find witnesses to support his case. There could be a conflict of expert evidence e.g. on whether the accused has some mental illness which would diminish his responsibility for his actions, forcing the court to choose one expert over another. In addition, defences are strictly worded and sometimes expect a person to behave in very measured ways e.g. for the partial defence of provocation, the accused must not have had time to cool off, which is construed strictly.

We can all agree that society should be clear that killing someone with an intention to kill ranks amongst the most serious crimes. I would argue that this will still be achieved if the death sentence was available to the judge, especially since a wide range of circumstances is caught under S 300(a). As a second alternative, I repeat my suggestion that the government could consider phrasing the death penalty as the presumptive sentence for S 300(a).

There are precedents elsewhere for this. For instance, in the Criminal Code of Western Australia, it is provided under S 279 that an accused found guilty of murder must be sentenced to life imprisonment unless “that sentence would be clearly unjust given the circumstances of the offence and the person; and (when) the person is unlikely to be a threat to the safety of the community when released from imprisonment”. We should consider employing such a legal device here, which would still send a strong signal to society about the seriousness of the offence of murder and yet allow judges to depart if the circumstances of the case warrant it. Factors which could be considered to allow judges to depart include the accused acting under duress, the offence not being premediated or the offender not bringing weapons to the scene.

 

Law Reform for homicide provisions
While I acknowledge the significance of the changes this bill brings, I believe further reform of our homicide provisions is desirable.

For instance, it remains a mystery why S 300 (c) should be classified as murder in the first place, when the accused need not have intended death nor known that death was likely. Even after this amendment bill, the judge could still impose death for S 300 (c), which is not easy to justify. It seems more appropriate to move such situations lower down the seriousness ladder, to a lesser category of homicide which does not attract death.

As a wider law reform exercise, the government may also wish to look at the broader structure of the homicide provisions. We inherited our Penal Code from our colonial days, and the drafting of the homicide provisions has been criticised by no less than eminent jurist, Sir James Fitzjames Stephen, who drafted our Criminal Procedure Code. He labelled our homicide provisions as the “weakest” part of the Penal Code, calling them “obscure” and “not fully thought out”. His criticisms were several. Homicide itself has not been defined in the Penal Code, except in the context of culpable homicide; murder is a species of culpable homicide; the definitions of murder and culpable homicide also closely resemble each other, such that it is difficult to distinguish between them. For instance, a person intending to cause injury which is sufficient to cause death is a murderer, but a person intending to cause injury likely to cause death commits culpable homicide not amounting to murder.

There has also been criticism from the judges of the Federal Court of Australia who had to apply our Penal Code to a homicide which took place on Christmas Island, which used to be part of Singapore territory (Chong Wooi Sing & Toh Yuh Teng v R (1989) 40 A Crim R 22). Arising from this, a law academic, Prof Stanley Yeo, has urged the Singapore legislature to act to improve the clarity of these provisions (see Stanley Yeo, “Australian Judicial Rulings on Singapore’s Homicide Provisions” [1991] Sing LRev 6).
One option the government may want to consider in due course is re-drafting the homicide provisions to exclude overlapping offences and have mutually exclusive categories. There are precedents from other countries to study e.g. the Australian states, and the UK, which both had law reforms in this area. The Americans have first and second degree murder, and then manslaughter. If a review is done to remove the overlap between culpable homicide and murder, I believe the law will be clearer; the public will also better understand the homicide provisions.

 

Conclusion
The government is moving in the right direction by this amendment bill, to give the judges sentencing discretion for murder cases. It should continue to do more law reform, in particular remove the mandatory death sentence from murder and make it discretionary. The government should also consider law reform to improve the homicide provisions.