Penal Code (Amendment) Bill

Mr Speaker, Sir, the proposed amendments to the Penal Code centre on the introduction of the judicial discretion to not impose the death sentence for non-intentional killing. This marks a significant change to the former penalty regime where all forms of murder were punished with the mandatory death sentence.

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I welcome this change. There is a difference between someone who intends to commit murder who will still be sentenced to death and one who does not but should know that the injury he intends to inflict may very well cause death. Although still wrong, it reflects a lower level of culpability which should, in the appropriate circumstances, be met with something less than the ultimate sentence of death. Sometimes, judges are faced with the moral dilemma of whether to apply the law in its strictest sense, and convict someone who did not intend to kill or murder, knowing it will attract the harshest sentence on our Statute books. This has sometimes led to the occasional odd result where the criteria for the accused to be convicted of the lesser offence of manslaughter, which does not carry the mandatory death penalty, to be applied in an uncharacteristically liberal way. This is not to criticise our courts as, in such cases, both prosecutor and defence counsel can perceive the horns of the dilemma that the courts are perched on. The proposed amendments would, hopefully, put an end to such quixotic decisions.

In the debate on the Misuse of Drugs Bill – which also introduced a judicial discretion to not impose a death sentence – in that case, for the less serious forms of drug trafficking, there were calls by one Member of the House to do away with the death penalty altogether. Another Member pressed for the removal of mandatory sentences generally, arguing that the courts should have full discretion to mete out punishment according to the facts of each case. I respect those views coming from Members who are speaking from their conscience but I do not agree with them. The Deputy Prime Minister and the Minister for Law, in their responses on the Misuse of Drugs Bill, spoke powerfully and eloquently on those topics, and allow me to add my brief comments to that debate.

First, whether we should continue to have the death penalty. We are not the only country to have such a penalty and certainly not the only developed nation which has this on our Statute books. It is said to be barbaric, based on medieval concepts of retribution, and that we should temper justice with mercy in not putting the worst offender to death.

But I believe that justice and mercy are a two-way street. While we should rightfully have concern for the position of the convicted murderer or drug trafficker, what about their victims? Are they not entitled to protection under the law as well? Does this protection not require that the punishment fit the crime? And does this protection entail that the punishment be severe enough to deter others from going down the same lawless route? It is, afterall, deterrence, not retribution, that guides modern sentencing policy, and the paramount objective is to protect future victims from suffering a similar fate.

Seen against that backdrop, the death penalty serves a vital purpose of deterring by simply scaring would-be criminals from carrying out the most serious of crimes. In that regard, the Deputy Prime Minister referred to the sharp drop in offences for kidnapping and firearms after the mandatory death penalty was introduced. In my view, it continues to be relevant to this very day.

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What about mandatory sentences and whether we should give judges unfettered discretion to impose the particular sentence for each case? In a parliamentary sovereign nation like Singapore, it is for Parliament to enact the laws of the land and the courts to apply them. If Parliament considers something important enough that it should require a breach of the law to be punished in a certain way, it not only can but should do so.

The paradigm example is the mandatory death penalty for drug trafficking which has engaged this House in vigorous debate from Monday to today. In my view, it has played an integral part in our overall zero-tolerance approach to drugs that has kept Singapore largely drug-free, especially compared to other developed nations and even some of our neighbours in the region, and the Minister for Law had some sobering statistics to refer to in his reply on the Misuse of Drugs Bill.

Yet, another example, lest one thinks that mandatory death sentences are only confined to death penalty, is the mandatory imprisonment for rape offences. Many of us would have come across cases in other countries where convicted rapists walk free with a fine or suspended sentence because the particular judge felt there that that was appropriate in the circumstances of the case. Amidst all the outrage and protests that such decisions provoke, one cannot help but think that the problem would have been averted if judges did not have that much discretion.

What lies at the heart of mandatory sentences is the interest which Parliament deems so important to protect that it cannot be left to the discretion of individual judges. Hence, we have mandatory death sentences for drug trafficking because Parliament considers the serious damage that drugs can cause to many, many victims, including their families, demands that wrongdoers pay the ultimate penalty. Similarly, the mandatory sentences for rape and sex crimes against children are underpinned by the regard, the concern for their welfare and the imperative of deterring criminals who seek to prey on them.

We do not have those sensational outcomes that you read about from other countries where perpetrators walk away from a serious crime unscathed in part because Parliament has seen fit to mandate the punishment to fit the crime. This is not to say that all mandatory sentences are good things and I was heartened to note that the Minister for Law, in his opening speech on the Penal Code amendments, said that they are the exceptions rather than the rule. One may recall the attempt to clamp down on the harbouring of illegal aliens by imposing jail terms. This was under the Immigration Act on offenders even when they have been misled by the illegal aliens as to their credentials. Unless the persons who had led them into their home had checked his original passport and work permit, the courts had no choice but to sentence them to jail. And among those who suffered imprisonment before the law was changed were a priest and an elderly grandmother. So, I do hope that the Ministry of Law not stop at the mandatory death sentences for murder but carry out a wholesale review of the mandatory sentences in our Penal Code and other penal statutes to see if they are properly calibrated for the interest they seek to protect or simply to see whether or not some of them may have outlived their usefulness.

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At the end of the day, the empirical data shows that Singapore has a significantly lower crime rate, especially for serious crimes. A lower recividism rate for ex-convicts, a lower rate of drug addiction and abuse. Our criminal justice regime includes the death penalty and mandatory sentences as key features. We would temper with that at our own peril. Mr Speaker, Sir, I support the Bill.

Ms Ellen Lee (In Mandarin): [Please refer to Vernacular Speech on Pg 1314.] Mr Speaker, Sir, I support the Penal Code (Amendment) Bill. Personally, I feel it is a timely move.

A few years ago, the United Nations General Assembly proposed to vote on a resolution to suspend the death penalty globally. We voted against the resolution. The Third Committee in charge of social and humanitarian affairs passed the resolution with 104 votes for, 54 votes against and 29 votes abstaining. The resolution called for the death penalty to be suspended, with the hope that the death penalty would eventually be abolished altogether.

The United Nations had discussed this issue way back in 1994 and 1999. During that time, member nations had diverse views on the issue. Mr Ban Ki-Moon, the current UN Secretary General, once said that the UN is against the death penalty, as it respects each individual's right to life.

Then why did Singapore cast the objection vote to this resolution? Singapore's Ambassador to the United Nations pointed out that the UN Declaration of Human Rights does not ban the death penalty. The International Covenant on Civil and Political Rights has also stipulated that countries which have yet to abolish the death penalty can impose the death penalty on the most serious crimes. He said, in many countries, death penalty signifies criminal justice, it is not an issue of human rights. We believe that every Singapore citizen has the right to live in a safe environment, free from the threat of crime.

From what I know, some Singaporeans feel that people who have been sentenced to death, whether they are murderers or arsonists, all have one thing in common – that is, they have caused great harm to society or have caused substantial economic losses to society. Imagine the pain that the victim's family has had to go through, it is something that cannot be easily forgotten. Then, why should society be merciful to the murderers?

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Many Singaporeans are not aware that the law under section 300 of the Penal Code defines "culpable homicide" as an act that takes place when there is:

(a) the intention to kill;

(b) the intention to cause injury, coupled with the knowledge that such injury is likely to cause death;

(c) the intention to cause injury (with the intended injury being objectively sufficient in the ordinary cause of nature to cause death); and

(d) the knowledge that the relevant act is so imminently dangerous that death is virtually certain or likely as a result.

At the moment, our judicial system is still not perfect. Under definitions stipulated in section 300, it is very difficult for the court or the prosecution to prove whether the accused had clear intention to cause the death of the victim. And some academics observed that there have been inconsistencies in sentencing.

Under this amendment Bill, only in cases where the accused has clear intention to cause death will the mandatory death penalty be carried out. In other words, if the court rules that the offence is committed under circumstances stipulated in section 300(a), the mandatory death penalty will be carried out.

According to some academics, the Court appears to worry about the fact of death above all and that it matters little if the injury is serious or not serious. With the amendments, the Court will have the discretion to sentence the accused to death penalty or life imprisonment, and the death sentence will no longer be mandatory. I think this will help to rectify some views which are less than objective. For example, the view that the Singapore legal system is too stringent, and the penalties are too harsh, and it is not appropriate. On the contrary, these amendments prove that our society has held a consistently clear view of the law – our laws provide a safe, crime-free environment for our citizens, but we also seek consistency in the application of our laws, and will continue to do our best to improve in this aspect.

Singapore law is people-oriented, we safeguard human rights and equality. As such, we have to let every Singaporean understand this. I would like to ask the Minister, whether various methods or channels would be used to help Singaporeans fully understand the implications of this amendment Bill, so that they are fully aware that our society will not become less safe, neither will they be subjected to the threat of crime.

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Mr Speaker, Sir, 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.

Sir, 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 much criticised by academics for attracting the death penalty mandatorily. 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. 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 happy to note that the death penalty will no longer be mandatory for murder under section 300(c) and also for section 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.

Next, should the mandatory death penalty be maintained for section 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, 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 Public Prosecutor applied particularly in the context of homicide cases.

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

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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 finds 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 section 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 for premeditation or any pre-arranged plan to kill under section 300(a), whereas in some other jurisdictions, murder which is not pre-meditated is classified as murder in the second degree.

Do all accused coming within section 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."

Sir, it is true that persons charged with murder under section 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 well be a conflict of expert evidence, for example, 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. For example, for the partial defence of provocation, the accused must not have had time to cool off, which is construed strictly.

Sir, 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 are caught under section 300(a). As a second alternative, I repeat my suggestion that the Government could consider phrasing the death penalty as the presumptive sentence for section 300(a).

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There are precedents elsewhere for this. For instance, in the Criminal Code of Western Australia, it is provided under section 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 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. Some factors which could be considered by the Court for such departure include whether the accused acted under duress, whether the murder was premediated or not, and if the accused did not carry any weapons to the scene.

Sir, next, I shall move on to Law Reform. 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 section 300(c) should still be classified as murder, 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 section 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.

Sir, 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 an 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. This may be why the Member before me, Mr Alvin Yeo, classified the situation as "chaotic".

Sir, 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 The case is 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.

Sir, 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, for example, 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; and the public will also better understand the homicide provisions.

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Sir, in 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.

Sir, I thank all the Members who spoke. I think all support the amendments. I think that is a fair summary of their speeches.

Mr Yeo suggested that the Ministry of Law review all mandatory sentences in our books and I think he made particular reference to the mandatory sentence that is imposed on landlords who rent out their properties to illegal immigrants. Mr Yeo may know that, when I was a backbencher, I was one of those who were very uncomfortable with the mandatory nature of that sentence and spoke up against it. That has been my own philosophy, and we try to put that in place where possible, but I have to tell Mr Yeo that it is beyond my purview to look at all legislation, most of which are not under the Ministry of Law or the Ministry of Foreign Affairs. But I will pass his message on to the Ministries concerned, and I thank him for his suggestion. I think that it is, in principle, a sound policy and one which we try to institute. We regularly look at our criminal legislation, particularly those which carry severe penalties, not just the mandatory death penalty, but severe penalties. So, we thank him for that suggestion and we will remind ourselves of the importance of that approach.

As for Ms Lee, I think the question at the end of her speech was whether we can educate Singaporeans to understand the nature of the amendments and that our society and country will continue to be safe and secure. We will try. We will do our best. I think our citizens' understanding of safety and security issues depends on a whole framework of factors, and the Ministry of Home Affairs, I am sure, will continue to pass the message on crime rates and how we keep ourselves safe and how these amendments impact society.

I think Ms Lim was also supportive of the amendments and welcomed them. She made a number of points.

First, on section 300(a). It is a fair point to say that many different types of cases can fall within section 300(a). A cold-blooded, deliberate, planned, gangster-style execution on the one hand; on the other hand, someone who finds out that his wife had betrayed him and then goes out and decides to kill. But the fact is, even in the latter situation, it is deliberate, cold-blooded, intentional killing. If it is done out of provocation, on the spur of the moment, there is a defence. Ms Lim knows that. And there are other defences as well: self-defence and so on. But I can see that another approach is to have a presumptive death sentence and let the accused show why it should not apply. That is a possible approach. On balance, looking at section 300(a) today, our assessment is that society sees this as extremely serious – intentional, cold-blooded, deliberate killing – and that in such situations, the mandatory death penalty should apply. But for section 300(b), (c) and (d), we are making a significant change. The balance is a question of judgment, I accept that.

On the suggestion that there should be further reform, we continuously review these areas. Specific to section 300(c), I do know that it has attracted a lot of commentary and a lot of attention. Likewise, it has received a lot of attention from us as well and the group of people we consulted. I think the list has been circulated. Let me make three points on section 300(c).

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The first is, when we consulted, the submission that the academics gave was that the repeal of section 300(c) is not likely to, in any significant way, affect the manner in which homicide offences are dealt with. I quote: "While it is true that a great majority of murder convictions since 1972…has been technically based on section 300(c), a study of the relevant facts and circumstances reveal that in almost all of them, a conviction under one of the other three subsections (section 300(a), (b) and (d)) would have been likely." That, of course, is not a complete answer to why you should keep section 300(c). I accept that and, in fact, there was a significant body of opinion among those we consulted that section 300(c) ought to be deleted or moved to some other place.

The second point is, in the short period between the completion of the latest review in July and putting up the Bill now, I did not think we should take such a major step. The key reason is that we are now giving the Judges the discretion to impose life imprisonment. So, a High Court Judge who decides to impose the death sentence in a section 300(c) case would, in fact, have been satisfied that the death sentence, as opposed to life imprisonment, was warranted on the facts. That is a significant factor to bear in mind when we talk about section 300(c).

The third point I want to make is, yes, we are looking at a number of provisions, including section 300(c). If we believe that it ought to be moved or amended in some way, we will let the House know. Senior Minister of State, Ms Indranee Rajah, has been asked by me to look at section 300(c).

Now, I think Asst Prof Tan accepts section 300(a) as it stands now. Our assessment is that most people in society also believe that for cases which come within section 300(a), the mandatory death penalty should apply. That said, and as I have said on more than one occasion, while we look at what the majority of the society want, we also look at what is right. In this case, for the reasons that I have given, we believe that it is also right at this time to keep section 300(a) as it is, and I thank Asst Prof Tan for his views. I am not quite sure if he had any specific questions. I think he encouraged us to continue with law reform, which we will do.

Sir, in conclusion, I have said in July that the changes we are making will ensure that our sentencing framework will better balance the various objectives – justice to the victim, justice to society, justice to the accused and, in appropriate situations, mercy to the accused as well. We hope that we are on the right track to try to achieve that.

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*Question put, and agreed to.*

*Bill accordingly read a Second time and committed to a Committee of the whole House.*

*The House immediately resolved itself into a Committee on the Bill. – [Mr K Shanmugam].*

*Bill considered in Committee; reported without amendment; read a Third time and passed.*

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