A Matter of Interpretation: Wong Souk Yee Revisited at the Court of Appeal

A PDF version of the article can be found here.

---

A MATTER OF INTERPRETATION: WONG SOUK YEE REVISITED AT THE COURT OF APPEAL

Benjamin Low

I. INTRODUCTION

In an earlier piece for this publication,[1] I had noted the Singapore High Court’s reliance on canons of statutory interpretation normally designed for ordinary legislation, for the purpose of interpreting provisions belonging to the Constitution of the Republic of Singapore[2] in its decision in Wong Souk Yee v Attorney-General.[3] I considered that the recourse to such interpretative tools under the banner of the so-called “purposive approach”[4] towards constitutional interpretation carried with it the latent risk of the judiciary straying, in effect, into the arena of judicial legislation, and had expressed the hope that such a methodology be further clarified by the Court of Appeal.[5]

The Court of Appeal has since delivered its judgment on the matter in Wong Souk Yee v Attorney-General.[6] Although the judgment largely upheld the original decision of the lower court in Wong Souk Yee (HC), there are certain aspects of the Court of Appeal’s decision that arguably present rather intriguing, if not troubling, implications for constitutional law in Singapore and which, accordingly, necessitate further discussion and scrutiny. This article endeavours to go some way towards meeting that need.

II. BACKGROUND

In Wong Souk Yee (HC), the Appellant had applied for a mandatory order requiring that the Members of Parliament (“MPs”) for the Marsiling-Yew Tee Group Representation Constituency (“GRC”) vacate their seats and that the Prime Minister advise the President to issue a writ of election for the Marsiling-Yew Tee GRC.[7] Her application was predicated on the basis that a vacancy had arisen in the Marsiling-Yew Tee GRC after one of its MPs, Madam Halimah Yacob, vacated her seat in Parliament on 7 August 2017 to contest in the 2017 Presidential Election.[8] Since Madam Halimah’s departure, the Marsiling-Yew Tee GRC continued to be represented by its three remaining MPs from the ruling People’s Action Party. The Appellant submitted that the occasion of such a vacancy was sufficient to trigger the by-elections mechanism in Article 49(1) of the Singapore Constitution.[9]

The Appellant also applied, in the alternative, for a declaratory order that section 24(2A) of the Parliamentary Elections Act[10] be interpreted as requiring all the MPs of a GRC to vacate their seats (i) when one or more MPs of the GRC vacate their seats; or (ii) in the alternative, when the only MP in the GRC who belongs to a minority community vacates his or her seat.[11] On the flip side, if such an interpretation was not possible, the Appellant further sought a declaratory order that s 24(2A) be declared void for inconsistency with the Singapore Constitution as per Article 4 read with Article 49.[12]

The High Court rejected the Appellant’s claim chiefly on the basis that her application for mandatory orders was grounded on a legal improbability.[13] In short, the Court below held that there was no express provision in the Singapore Constitution justifying or permitting the ‘mandated’ vacation by the remaining MPs of the Marsiling-Yew Tee GRC of their seats in the event of a single vacancy arising in the constituency.[14] Although the Singapore Constitution does provide for several grounds on which an MP’s seat may be vacated,[15] there was nothing in these grounds that pointed to the vacation of seats by the remaining MPs of a GRC in the event a vacancy first arose in any one of the seats.[16] This, in the judgment of Chua Lee Ming J, presented the single most significant legal hurdle in the Appellant’s case which she could surmount, and which sufficed to doom her application. Nor was the Appellant able to succeed in her alternative case for declaratory orders.[17]

At the same time, while Chua Lee Ming J found that the Appellant could not successfully make out her case for the mandatory and declaratory orders, the learned Judge was prepared to accept the Respondent Attorney-General’s contention that Article 49(1) could be interpreted to mean that a by-election in a GRC could only be held if all MPs vacated their seats mid-term[18] or, alternatively, that Article 49(1) applied only to Single-Member Constituencies (“SMC”) and not GRCs.[19] Crucially, the High Court accepted the Attorney-General’s reasoning that either an updating or rectifying or even a strained construction could be applied to Article 49(1) so as to fully accommodate Parliament’s intent when it sought to introduce the GRC scheme in 1988.[20] On that basis, the High Court found in favour the Respondent Attorney-General and dismissed the Applicant’s case. The Appellant duly appealed to the Court of Appeal.

III. THE COURT OF APPEAL’S DECISION

Both parties appealed largely on the same grounds that they had raised earlier in the High Court below.[21] The Appellant however also took the opportunity to address the Attorney-General’s submissions concerning the applicability of an updating and/or rectifying construction to the Singapore Constitution, contending that such rules of statutory interpretation “would entail the court overstepping its constitutional role”[22] and thus had no basis in the province of constitutional interpretation. There was an additional issue for the Court of Appeal’s consideration concerning the matter of costs[23] which we will not go into for the purposes of this article. Suffice to say, our concern is chiefly with the primary substantive issues that the Court of Appeal had to grapple with, namely the proper interpretation of Article 49(1) vis-à-vis the GRC scheme and the means by which this proper interpretation ought to be reached.

A. The Ambiguity of Article 49(1) and the Will of Parliament

From the outset, the Court of Appeal recognised that the meaning of Article 49(1) of the Singapore Constitution had become ambiguous vis-à-vis the mechanism of by-elections for a GRC, as opposed to an SMC.[24] Article 49(1) in its present incarnation reads as such:

49.—(1) Whenever the seat of a Member, not being a non-constituency Member, has become vacant for any reason other than a dissolution of Parliament, the vacancy shall be filled by election in the manner provided by or under any law relating to Parliamentary elections for the time being in force.

As the Court of Appeal observed, and as has been well-documented elsewhere, Article 49(1) preceded the introduction of GRCs in 1988 and was clearly applicable to SMCs.[25] Furthermore, it was also decided by the Court of Appeal in its earlier decision of Vellama d/o Marie Muthu v Attorney-General[26] that Article 49(1) imposed a duty on the Prime Minister to call a by-election “to fill casual vacancies of elected MPs which may arise from time to time”[27] in the event of such vacancies arising in an SMC. All well and good, but could this interpretation of Article 49(1) extend to GRCs as well?[28] The Court of Appeal in Wong Souk Yee (CA) further noted that such an interpretation was possible on the one hand[29] and yet, on the other, noted that the express wording of Article 49(1) “presupposes the existence of a vacancy in a particular seat before a by- election has to be called for that seat”[30] which, when read together with the proviso in Article 39A of the Singapore Constitution that elections to a GRC could only be conducted “on the basis of a group”,[31] suggested that “a by-election in a GRC can only be conducted if all the Members representing that GRC have vacated their seats”.[32] So while it appeared to be fairly undisputed that by-elections for a GRC have to be held on a group basis, which in turn is only possible in a situation involving the vacating by all MPs of a GRC of their seats, this still left unaddressed the pertinent issue as to what ought to be the proper procedure in a situation involving the vacating of one or more seats by one or more MPs,[33] short of a complete vacating of all seats by all MPs of a GRC.

Here the Court of Appeal found itself to be in a dilemma. The Court rightly observed that nothing in the texts of Articles 49 and 39A, nor in Article 46 for that matter, was capable of supporting the proposition that the remaining MPs of a GRC had to vacate their seats in the event one or more MPs vacated their seats in the first place.[34] By contrast, there was an express provision in s 24(2A) of the PEA which made clear that no writ for an election to a GRC could be issued unless all MPs in that GRC had vacated their seats.[35] In short, there was something of a “legislative oversight”[36] concerning the implementation of the GRC scheme so as to make the meaning of Article 49(1) ambiguous where vacancies in a GRC arose. The Court thus considered it necessary to have recourse to extraneous material for the purpose of ascertaining Parliament’s intention regarding the operation of the GRC scheme in order to arrive at a purposive interpretation of Article 49.[37]

What then did Parliament intend in the event of a single vacancy arising in a GRC? In this it was clear, and remains so to this day, that Parliament expressly intended that by-elections would only be called for a GRC in the event that all MPs of that constituency vacated their seats and not in the event one or more MPs vacated their seats.[38] And yet, despite this evident clarity in the will and intent of the Legislature, the extraneous material, in the Court’s opinion, fell short of clarifying “how Parliament thought it would effect this outcome [of permitting by-elections in a GRC only upon the vacating of all seats by all MPs]”[39] given that the extraneous material had the effect of creating three distinct possibilities as to how Parliament intended to effect such an outcome, namely that (i) Parliament intended to amend Article 49(1) to reflect its intention concerning GRC by-elections but omitted to do so; (ii) Parliament intended for Article 39A to be the operative provision regulating all matters pertaining to GRCs, including the filling of vacancies, and that Article 39A contained sufficient reference to s 24(2A) PEA to achieve its desired outcome; or (iii) Parliament intended that Article 49(1) would apply to GRCs but the wording in that provision was sufficiently broad to include references to s 24(2A) PEA so as to render an express amendment unnecessary.[40] This ultimately served to compound the Court of Appeal’s difficulty in ascertaining the proper interpretation of Article 49(1) in the context of by-elections for a GRC.

B. The Proper Interpretation of Article 49(1) and the Role of Updating and Rectifying Constructions

The Court of Appeal next considered three possible interpretations of Article 49(1) vis-à-vis vacancies in a GRC, based on the submissions of the Appellant and the Attorney-General, which were that:

(a) the vacancy arising in a GRC, as and when it arises, shall be filled by a by-election for all the seats in the GRC (“the Appellant’s Interpretation”);

(b) the vacancy in a GRC shall only be filled by a by-election if and when all the seats in the GRC have been vacated (“the Respondent’s First Interpretation”); or

(c) the “seat of a Member” in Art 49(1) refers only to the seat of a Member of an SMC, and Art 49(1) does not apply to seats in a GRC at all (“the Respondent’s Second Interpretation”).[41]

The Court of Appeal rejected the Appellant’s Interpretation as being contrary to the will and intent of Parliament and thus incompatible with the purposive approach in interpreting Article 49(1).[42] As for the Respondent’s First Interpretation, which the Respondent submitted could be achieved by way of either an updating or rectifying construction, the Court held that neither of these two canons of statutory interpretation was appropriate to the present case before it and thus declined to accept the Respondent’s First Interpretation.[43]

Having rejected the Respondent’s First Interpretation, and by extension, the High Court’s preferred interpretation of Article 49(1),[44] the Court of Appeal opted instead to adopt the Respondent’s Second Interpretation.[45] The Court justified its holding for several reasons, such as the textual limitations arising from the express words of Article 49(1) itself as well as the fact that Article 49(1) was first enacted when Singapore’s electoral divisions consisted only of SMCs and the GRC scheme had yet to come into existence.[46]

The problematic implication of this decision is that the Respondent’s Second Interpretation effectively denudes the GRC by-elections mechanism of any constitutional basis on which it may stand. If Article 49(1), being the only provision in the Singapore Constitution that deals with the filling of vacancies in parliamentary seats by way of by-election, is limited in scope to SMCs only, that means, in effect, that Singapore’s constitutional scheme recognises only the permissibility of by-elections for SMCs and not so for GRCs.[47]

In turn, this arguably creates the worrisome inference that any attempt by Parliament to establish a separate by-elections scheme for a different type of constituency such as the GRC must necessarily fall outside of the ambit of the Singapore Constitution.[48] If the Singapore Constitution does not recognise the holding of by-elections in a GRC, and in the absence of any other constitutional provision authorising or enabling the enactment of a separate by-elections mechanism to fill vacancies arising in a GRC,[49] this can only mean that s 24(2A) PEA is for all intents and purposes inconsistent with the terms of the Singapore Constitution.[50] It would seem that in trying to remedy the ambiguity concerning Article 49(1)’s relation with vacancies in a GRC, the Court of Appeal might have perhaps inadvertently called into question the very legitimacy of the GRC scheme itself.[51]

C. The Role of Updating and Rectifying Constructions in Constitutional Interpretation

At this point, some words may also be said about the Court of Appeal’s observations regarding the appropriateness of applying either an updating or rectifying construction to the interpretation of the Singapore Constitution. It was evident that the Court of Appeal had reservations about the applicability of these canons of statutory interpretation in the context of constitutional interpretation, given the unique nature of constitutional provisions as opposed to ordinary statutory provisions. As the Court pithily observed, the provisions of a constitution “are designed to be more deeply entrenched and are generally regarded as fundamental in nature, and there may be a concern that applying such tools of statutory interpretation may not be consistent with the nature of constitutional provisions”.[52]

The Court of Appeal was cognisant, and arguably correctly so, in recognising that simply importing such canons of statutory interpretation, which have the practical effect of introducing substantive changes into the constitutional provisions, could potentially distort the constitutional schema while establishing potentially undesirable knock-on effects. After all, a constitution is generally meant to serve as a supreme or paramount law that supersedes all other laws subsisting in a legal system.[53] In line with this element of paramountcy, constitutions have often—although this is not always necessarily the case—been designed with a certain degree of rigidity in mind by rendering their amendment subject to more cumbersome procedures and requirements as compared to ordinary statutes, with the understanding that the provisions of a constitution are not meant to be easily amended.[54] At the heart of the matter, there is something principally incongruent with attempting to apply a rule of statutory interpretation, such as a rectifying construction which “involves the addition or substitution of words to give effect to Parliament’s manifest intentions”,[55] to a fundamental law that is supposed to be amended or altered only in accordance with the special amendment procedure that the constitution sets out for itself.[56]

Unfortunately however, the Court of Appeal tentatively declined to make any express finding as to whether an updating or rectifying construction could be applied to a constitutional provision,[57] notwithstanding its earlier observations on the unsuitability of relying on these rules of statutory interpretation and its conclusion that the two canons were not appropriate in the present case.[58] This leaves open the possibility that similar arguments may yet arise in the future, given the Court’s refusal to expressly rule on this particular issue.[59] It would have been far better if the Court of Appeal had simply rejected completely the applicability of either an updating or rectifying construction to the Singapore Constitution from the outset, thereby clarifying the proper scope and operability of rules of statutory interpretation in the context of constitutional interpretation. This sadly, has not been done.

IV. CONCLUSION

The Court of Appeal, as we have seen, ultimately upheld the High Court’s decision by dismissing the Appellant’s appeal although it did diverge significantly from the High Court insofar as the proper interpretation of Article 49(1) of the Singapore Constitution was concerned. The failure of the Appellant’s appeal ought not to come as a surprise to anyone, given that the main thrust of the Appellant’s case was hampered by the critical absence of any provision in the Singapore Constitution capable of buttressing her claim for mandatory orders seeking the vacating of the seats of the remaining MPs of Marsiling-Yew Tee GRC. Nor was the Appellant’s case assisted by the presence of a clear Parliamentary intention that militated against her interpretation of the GRC by-elections mechanism.

Unfortunately, by rejecting the High Court’s interpretation of Article 49(1) in favour of its own interpretation of that proviso, the Court of Appeal appears to have inadvertently opened up several cans of worms with rather problematic implications for the development of constitutional law in Singapore. The applicability of canons and rules of statutory interpretation in the context of constitutional interpretation remains tainted by uncertainty and ambiguity while the constitutional basis for the existence of the GRC by-elections mechanism contained in s 24(2A) PEA appears to have been called into question in light of the Court of Appeal’s decision that Article 49(1) does not extend to GRCs.[60] It remains to be seen whether Parliament or a future court may be able to provide more definitive solutions capable of remedying this legal quandary.

---

[1] Benjamin Low, “Leaving an Empty Seat: Wong Souk Yee’s answer to By-Elections in a Group Representation Constituency” (30 May 2018), Singapore Law Review: Juris Illuminae, online: <http://www.singaporelawreview.com/juris-illuminae-entries/2018/leaving-an-empty-seat-wong-souk-yees-answer-to-by-elections-in-a-group-representation-constituency> [Low, “Leaving an Empty Seat”].

[2] Constitution of the Republic of Singapore (1999 Rev Ed) [Singapore Constitution].

[3] [2018] SGHC 80 [Wong Souk Yee (HC)].

[4] The “purposive approach” here refers to a method of constitutional interpretation, that is to say, it is the interpretation of the provisions of the Singapore Constitution in a manner that “would promote the purpose or object underlying the written law”: see Interpretation Act (Cap 1, 2002 Rev Ed Sing), s 9A; see also the decision of Tan Cheng Bock v Attorney-General, [2017] 2 SLR 850 (CA) [Tan Cheng Bock] at para 54.

[5] Low, “Leaving an Empty Seat”, supra note 1.

[6] [2019] 1 SLR 1223 (CA) [Wong Souk Yee (CA)].

[7] Wong Souk Yee (HC), supra note 3 at para 3.

[8] Ibid at para 2.

[9] Singapore Constitution, supra note 2, art 49(1).

[10] Parliamentary Elections Act (Cap 218, 2011 Rev Ed Sing), s 24(2A) [PEA].

[11] Wong Souk Yee (HC), supra note 3 at para 4.

[12] Ibid.

[13] Ibid at paras 22-26.

[14] Ibid at para 26.

[15] Singapore Constitution, supra note 2, art 46(2).

[16] As the High Court so correctly identified: see Wong Souk Yee (HC), supra note 3 at para 24.

[17] Wong Souk Yee (HC), supra note 3 at paras 58-60.

[18] Ibid at paras 38, 41, and 44.

[19] Ibid at para 45. More importantly, although the High Court ultimately opted for the Attorney-General’s first interpretation of art 49(1) as the correct interpretation of that provision, it was prepared to accept that the Attorney-General’s second interpretation was a possible interpretation of art 49(1) as well, rather than rejecting it outright.

[20] Ibid at paras 27-43.

[21] Wong Souk Yee (CA), supra note 6 at para 16.

[22] Ibid at para 17.

[23] Ibid at para 21 and paras 88-96.

[24] Ibid at para 27.

[25] Ibid at para 28.

[26] [2013] 4 SLR 1 (CA) [Vellama].

[27] Ibid at para 82.

[28] Interestingly, the Court of Appeal in Vellama merely stated rather obliquely that the general duty imposed by art 49(1) on the Prime Minister “will only apply to a SMC as there is a special provision where a vacancy arises in a GRC” which seems to suggest that this duty does not apply where a vacancy arises in a GRC: see Vellama, ibid.

[29] Wong Souk Yee (CA), supra note 6 at para 34.

[30] Ibid at para 35.

[31] Singapore Constitution, supra note 2 at art 39A.

[32] Wong Souk Yee (CA), supra note 6 at para 37.

[33] Thus, to borrow the original factual matrix of Wong Souk Yee (HC), even if additional MPs besides Madam Halimah vacated their seats in the Marsiling-Yew Tee GRC, this would not be considered a complete vacating of all seats in the GRC as long as at least one MP remained to occupy one seat in Marsiling-Yew Tee GRC.

[34] Wong Souk Yee (CA), supra note 6 at paras 38-39.

[35] Ibid at para 44.

[36] Ibid at paras 46-47.

[37] Ibid at para 48.

[38] Ibid at paras 49-53; see also Parliamentary Debates Singapore: Official Report, vol 50 at cols 334–335 (12 January 1988) (Deputy Prime Minister Goh Chok Tong).

[39] Wong Souk Yee (CA), supra note 6 at para 54 [additions added].

[40] Ibid.

[41] Ibid at para 58.

[42] Ibid at para 71.

[43] Ibid at paras 65-69.

[44] Wong Souk Yee (HC), supra note 3 at paras 27-44.

[45] Wong Souk Yee (CA), supra note 6 at paras 72-73.

[46] Ibid.

[47] Thus, while the by-elections mechanism for SMCs derives its fundamental constitutional validity from the justifying proviso in art 49(1) of the Singapore Constitution, the by-elections mechanism for GRCs cannot likewise claim constitutional validity by the same art 49(1).

[48] Assuming we follow the Court of Appeal’s own reasoning that art 49(1) only applies to SMCs and not to GRCS, or any other types of constituencies for that matter, to its logical conclusion.

[49] This becomes evident when one takes a cursory look at the remaining provisions of the Singapore Constitution.

[50] If s 24(2A) PEA is inconsistent with the terms of the Singapore Constitution, then it must ipso facto be void by virtue of art 4 of the Singapore Constitution: see Singapore Constitution, supra note 2 at art 4; see also Taw Cheng Kong v Public Prosecutor, [1998] 1 SLR(R) 78 (HC) at paras 14-15 for an enunciation of the principle of constitutional supremacy.

[51] The Court of Appeal appears to have recognised the problematic implications of its own decision when it referred to the Respondent’s Second Interpretation as “not ideal” and expressed its hope that the Singapore Constitution be amended to rectify this legal quandary: see Wong Souk Yee (CA), supra note 6 at para 72. However, to date, more than a year has elapsed since the decision of the Court and the hoped-for amendment to art 49(1) has not yet materialized.

[52] Ibid at para 64.

[53] For an exposition of the general principles of constitutional supremacy, see Kevin Tan & Thio Li-anne, Constitutional Law in Malaysia and Singapore, 3rd ed (Singapore: LexisNexis, 2010) at 102–103 and 106.

[54] Ibid; see also Jutta Limbach, “The Concept of the Supremacy of the Constitution” (2001) 64:1 Mod L Rev 1 at 2–3.

[55] Wong Souk Yee (CA), supra note 5 at para 63.

[56] There has already been criticism levelled at such a mode of constitutional interpretation as potentially turning courts in Singapore into “mini-legislatures”: see Po Jen Yap & Benjamin Joshua Ong, “Judicial Rectification of the Constitution: Can Singapore Courts Be Mini-Legislatures” (2018) 48:2 Hong Kong LJ 389 at 395–398; see also my own comments in Low, “Leaving an Empty Seat”, supra note 1.

[57] Wong Souk Yee (CA), supra note 5 at para 65.

[58] Ibid at para 65.

[59] At this point, we may ask ourselves: If the Court of Appeal was evidently uncomfortable with the use of updating and rectifying constructions as part of the process of constitutional interpretation, why then hold back from expressly rejecting their applicability?

[60] I had earlier suggested, in a separate piece, that a far more elegant solution for the Court of Appeal would have been to simply accept that s 24(2A) PEA had the effect of implicitly amending the provisions of the Singapore Constitution. Such an argument would have obviated any lingering doubt as to the constitutional validity of s 24(2A) PEA and the by-elections mechanism for GRCs as a whole: see Benjamin Low, “Full Powers and the Constitutional Doctrine of Implied Amendments” (2019) Sing JLS 390 at 413–414.

A New Kind of Criminal Law for "Bad Hombres": The Organised Crime Act 2015

A New Kind of Criminal Law for "Bad Hombres": The Organised Crime Act 2015

Benjamin Low Junjie

I. INTRODUCTION

More than three years have elapsed since the Organised Crime Bill was passed by Parliament¹ and entered into law as the Organised Crime Act 2015² [OCA]. Surprisingly, scant attention has been devoted to the substantive contents of the statute.³ One might be forgiven for thinking that this is partly due to the fact that the OCA has not been extensively employed by the State, thereby precluding any opportunities for a serious scrutiny of the Act’s provisions by the Courts and academics. However, a cursory glance at the OCA reveals several areas of concern that do warrant greater attention and analysis on the basis that they have the potential to adversely affect established principles of criminal liability and punishment, while also constituting an evolutionary approach in Singapore’s longstanding crime-control policy.

This article is an attempt to provide a considered discussion on the various offences and penalties that the OCA creates, as well as the numerous powers it confers on the Public Prosecutor and other law enforcement agencies to better address the threat of organised crime. My analysis will also draw upon the comparative experiences of other common law countries that have already enacted similar legislation in combating organised crime, such as the United Kingdom and Australia, in order to help formulate a possible approach towards the OCA that the courts and law enforcement agencies may wish to consider.

II. THE ORGANISED CRIME ACT

The OCA as a whole comprises ten parts and over eighty sections in total. Part 2 of the Act creates several new offences collectively referred to as ‘Organised Crime Offences’. These offences are meant to cover a whole spectrum of activities that organised criminal groups engage in, such as:

• Membership of a locally-linked organised criminal group;⁴

• The recruitment of members of an organised criminal group;⁵

• The instructing of the commission of an offence at the direction of or in furtherance of the purpose of an organised criminal group; ⁶

• Procuring the expenditure or application of property (as well as the actual expenditure or application of property itself) to support, aid or promote the commission of a Part 2 offence or any other offence under any written law; ⁷

• Permitting an organised criminal group to use any premise; ⁸

• Receiving, retaining, concealing and any other dealing with the property of an organised criminal group; ⁹ and

• Facilitating the commission of a Part 2 offence or any serious offence¹⁰ at the direction of or in furtherance of the purpose of an organised criminal group.¹¹

The Part 2 offences are also noteworthy in that they directly target persons who, though not necessarily members of organised criminal groups themselves, nevertheless may have provided some form of material or financial assistance to organised criminal groups.¹²

In addition to the Part 2 offences, the OCA also grants several new legal powers which law-enforcement agencies may have recourse to.

Part 3 provides for the creation of Organised Crime Prevention Orders (‘OCPO’). ¹³ Part 4 creates Financial Reporting Orders (‘FRO’)¹⁴ while Part 5 prescribes mechanisms and procedures for the enforcement of OCPOs and FROs as well as avenues for appeals against such orders.¹⁵

Part 6 establishes Disqualification Orders which may be made against persons who have been convicted of having committed Part 2 offences or serious offences or who have contravened an OCPO or FRO that was made against them upon their conviction for an offence.¹⁶

Part 9 establishes a civil confiscation regime that is patterned on the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act¹⁷ [CDSA] but which allows for confiscation orders to be made against persons who have not been charged or convicted of any offence or who have been acquitted.¹⁸ The remaining Parts of the Act deal with matters pertaining to the powers of investigation by certain government bodies, the protection of informants and other ancillary matters and do not require any great deal of exposition here. Suffice to say, it is the OCPO provisions and the civil confiscation regime which I intend to deal with in further detail.

III. ORGANISED CRIME PREVENTION ORDERS

A. Prevention Orders: A Targeted Approach Towards Organised Crime

In addition to expanding the scope of inchoate liability under the Part 2 offences, the OCA provides for the use of OCPOs against persons who are proven to have been “involved in a Part 2 offence or a serious offence associated with an organised criminal group”¹⁹ whether inside or outside Singapore. S 15(1) OCA prescribes two conditions that must be met before a court can impose an OCPO. The court must firstly be satisfied, on a balance of probabilities, that the affected person must have been “involved” in a Part 2 offence or a serious offence; and secondly, the court must have “reasonable grounds to believe that the order would protect the public by preventing, restricting or disrupting an involvement by the person in any Part 2 offence, or any serious offence …”. The standard of proof is that of the civil standard of the balance of probabilities, as opposed to the criminal standard of proof, beyond reasonable doubt.

Involvement in a Part 2 offence or a serious offence is made out through three possible scenarios as prescribed in s 14 OCA. Firstly, the person who is to be subjected to an OCPO must have actually committed the Part 2 or serious offence;²⁰ secondly, the person must have facilitated²¹ the commission of the aforementioned offences²² or lastly, in the alternative, the person’s conduct must be likely to have facilitated the commissioning of the abovementioned offences²³. Thus, a person need not necessarily have committed the actual offence itself as long as his conduct renders the commissioning of the offence a possibility, in order to be liable for the imposition of an OCPO against him.

S 16 OCA lists the possible types of prohibitions, restrictions or requirements that may be imposed on a person who may either be an individual²⁴ or a body corporate²⁵ under an OCPO. Such prohibitions, restrictions and requirements may affect, but are not necessarily limited to, a person’s financial, property or business dealings or holdings,²⁶ working arrangements,²⁷ means of communication,²⁸ agreements to which the person may be a party²⁹ as well as the use of any premises or item by the person.³⁰ These provisions are virtually identical to similar legislation in the United Kingdom³¹ and New South Wales³², albeit referred to as ‘Serious Crime Prevention Orders’ (‘SCPO’). One can see that, depending on the nature of the serious offence and the extent of the person’s involvement, it is possible for the State to tailor each particular OCPO to suit the particular mischief at hand, thereby granting law-enforcement agencies great flexibility and latitude in dealing with persons involved in organised criminality.

The use of OCPOs is noteworthy in that they constitute an increasing willingness on the State’s part to resort to preventive measures outside the traditional criminal justice model of prosecuting persons who have already committed the substantive offence and have caused a certain type of harm to another person. This pattern of seeking to criminalise preparatory acts before the substantive offence itself can be committed has been termed by commentators as constituting “the preventive turn in criminal law”.³³ The fact that the OCA also allows for the imposition of OCPOs against persons who have already been convicted by the courts for having committed either a Part 2 or serious offence only reinforces the increased emphasis on prevention as a guiding principle in terms of criminal punishment.

B. Legal Limits on the Use of OCPOs

Since OCPOs may be made in the absence of any conviction for any offence, there is a greater need to ensure that such legal powers are properly regulated given their propensity to adversely impact the constitutional freedoms and liberties that Singaporeans are entitled to, as well as to alleviate the possibility of state authorities increasingly resorting to the use of OCPOs over the more difficult task securing criminal convictions of suspected organised criminals as a form of ersatz prosecution. What then are the legal principles or tests that a court may have recourse to in determining whether the issuance of an OCPO would indeed “protect the public”?

Presently, no local case law has involved the making of an OCPO against a person under the OCA. However, given that our provisions concerning OCPOs are virtually in pari materia with the UK and New South Wales legislations, it is posited that the existing body of case law in these jurisdictions, while not binding, may provide useful sources of guidance for our courts in determining when an OCPO may be issued. The leading case in the United Kingdom is R v Hancox³⁴ [Hancox] where the Court of Appeal held that an SCPO could only be issued if the court “has reasonable grounds to believe that an order would protect the public by preventing, restricting or disrupting involvement by the defendant in serious crime”,³⁵ that is to say, the court must be satisfied that “There must be a real, or significant, risk (not a bare possibility) that the defendant will commit further serious offences …”³⁶ to justify the imposition of the prevention order.

The Court further elaborated by holding that:

“[S]uch orders can be made only for the purpose for which the power was given by statute. And they must be proportionate…it is not enough that the order may have some public benefit in preventing, restricting or disrupting involvement by the defendant in serious crime; the interference which it will create with the defendant’s freedom of action must be justified by the benefit; the provisions of the order must be commensurate with the risk.”³⁷

The test in Hancox has been repeatedly affirmed and cited by subsequent English decisions with approval³⁸ and its importation into Singapore would arguably pose no great conceptual difficulty. However, one ought to bear in mind that Hancox expressly endorsed the test of proportionality where a prevention order is concerned, no doubt due to the need to ensure conformity between English law and the European Convention on Human Rights.³⁹ It goes without saying that the applicability of proportionality as a legal doctrine was expressly rejected by the High Court in Chee Siok Chin v Minister for Home Affairs [Chee Siok Chin].⁴⁰ Any adoption of the Hancox test would require some modification to accommodate the law in Chee Siok Chin.⁴¹

Ultimately though, regardless of whether the Singapore courts opt to adopt the Hancox test or devise their own principles, it is posited that any legal solution formulated by the courts when dealing with the implementation of OCPOs ought to be structured as restrictively as possible, given the broad ambit and scope of such orders and the potentiality for misuse and abuse by the state authorities.

IV. THE CIVIL CONFISCATION REGIME

The final significant weapon in the OCA’s inventory is the provision of a civil confiscation regime designed to provide for “the confiscation of benefits from organised crime activities”⁴² under Part 9 of the Act. The regime allows for the Public Prosecutor to apply to the High Court for three types of orders: (i) restraining orders;⁴³ (ii) charging orders⁴⁴ and (iii) confiscation orders,⁴⁵ where the subject of the order has carried out organised crime activity within a statutory period of 7 years⁴⁶ and, in the case of the confiscation order, has derived benefits from such activity⁴⁷.

The structure of the civil confiscation process is heavily patterned on the existing regime in the CDSA albeit with a slight twist: proceedings under Part 9 for any of the three orders are civil proceedings that follow the civil standard of proof,⁴⁸ much like proceedings for OCPOs. This lowering of the burden of proof on the Public Prosecutor in civil confiscation proceedings is amplified by the statutory presumption that any property or interest in property held by the subject which is “disproportionate to the subject’s known sources of income”⁴⁹ is presumed to be a benefit from an organised crime activity, which the subject bears the burden of disproving.⁵⁰

The civil nature of such confiscation proceedings is buttressed by a statutory proviso that any of the three orders can be made in the absence of any criminal proceedings for the impugned organised criminal activity.⁵¹ Even more disconcertingly, where criminal proceedings have been instituted against the subject, an order under the civil confiscation regime can still be made even if the criminal proceedings have resulted in an acquittal of the subject.⁵² Nor is the civil confiscation order affected by the making of a confiscation order under the CDSA in relation to the same person and organised crime activity,⁵³ raising the spectre of a possible ‘double jeopardy’⁵⁴ under both civil and criminal confiscation proceedings.

V. CONCLUSION

The OCA is a considerable supplement to Singapore’s already-sizeable arsenal of legal tools that have already been used in the struggle against organised crime. However, unlike previous legislation which has typically been concerned with combating organised criminal activity within the traditional framework of the criminal justice system, the OCA adopts the novel approach of utilising the civil process to tackle organised crime. This obviates the need to navigate the more onerous realm of criminal procedure, and allows for the full powers and resources of the State to be brought to bear upon individuals suspected of having breached the criminal law, but who have otherwise evaded prosecution.

Furthermore, such measures arguably mark a reformulation in the State’s policing style whereby the traditional reactive means of enforcement after the commission of an offence is increasingly displaced by a more proactive policing which seeks to preclude and even deter participation in organised criminal enterprises by denying criminals the necessary capital to develop and maintain illicit markets, as well as by preventing certain types of behaviour and forms of association that border on criminality.

The end result is a new kind of a criminal law whose focus is not so much identifying and apportioning criminal liability on an individual case-by-case basis as targeting and neutralising certain social threats to public welfare. Suspected organised criminals are the ‘social danger’ in question that must be contained and regulated through robust but civil measures under the OCA’s framework in order to best guarantee the effective protection of people and State. Of course, no one disputes the serious threat to public order that organised crime poses but it remains to be seen whether the OCA is the most appropriate and effective solution for addressing the problem of organised criminality.

---

[1] The Bill received its Second and Third Readings and was subsequently passed by Parliament with no amendments on 17 August 2015, before obtaining Presidential assent on 21 August 2015.

[2] No 26 of 2015, Sing.

[3] At the date of the writing of this publication, the author could find no academic article or commentary piece dealing with the Organised Crime Act 2015. A reference to the most recent edition of one of the foremost criminal law textbooks in the country revealed only a cursory mention of the statute in a footnote: see Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in Malaysia and Singapore, 3rd ed (Singapore: LexisNexis, 2018) at 1045.

[4] Supra note 2 at s 5. See also Public Prosecutor v Lai Yen San [2019] SGDC 39 at [6].

[5] Ibid at s 6.

[6] Ibid at s 7.

[7] Ibid at ss 8–9.

[8] Ibid at s 10.

[9] Ibid at s 11.

[10] ‘Serious offence’ refers to any offence specified in the Schedule to the OCA, which in itself consists of offences contained in the Penal Code (Cap 224, 2008 Rev Ed Sing) and a whole plethora of other criminal law statutes.

[11] Supra note 2 at s 12.

[12] Parliamentary Debates Singapore: Official Report, vol 93 at 31 (17 August 2015) (Second Minister for Home Affairs Mr S Iswaran). Although not expressly mentioned by the Minister in the Parliamentary debates, it is arguably reasonable to infer that persons who have provided material or financial assistance to organised criminal groups can include financial institutions and owners of real property. It would surely undermine the purpose of having such provisions in the OCA if they could not be taken to apply to the two aforementioned categories of entities.

[13] Supra note 2 at ss 14–20.

[14] Ibid at ss 21–23.

[15] Ibid at ss 24–38.

[16] Ibid at s 39.

[17] Cap 65A, 2000 Rev Ed Sing.

[18] Supra note 2 at ss 51 and 53.

[19] Ibid at s 15.

[20] Ibid at s 14(3)(a).

[21] Insofar as the author is aware, the term ‘facilitate’ is not actually defined in the OCA or any other statute but see s 2(2) OCA which attempts to provide some form of statutory guidance as to the prerequisite degree of physical conduct that is required for a person to have facilitated the commission of an offence.

[22] Supra note 2 at s 14(3)(b).

[23] Ibid at s 14(3)(c). The same three factual conditions apply for offences committed by an offender who is outside Singapore.

[24] Ibid at s 16(2).

[25] Ibid at s 16(3).

[26] Ibid at s 16(2)(a).

[27] Ibid at s 16(2)(b).

[28] Ibid at s 16(2)(c).

[29] Ibid at s 16(3)(b).

[30] Ibid at s 16(2)(e).

[31] Serious Crimes Act 2007 (UK), c 27, s 1.

[32] Crimes (Serious Crime Prevention Orders) Act 2016 (NSW), s 5.

[33] Heidi Mork Lomell, “Punishing the Uncommitted Crime: Prevention, Pre-emption, Precaution and the Transformation of Criminal Law” in Barbara Hudson & Synnove Ugelvik, eds, Justice and Security in the 21st Century: Risk, Rights and the Rule of Law (Abingdon, UK: Routledge, 2012) 83 at 86. See also Andrew Ashworth & Lucia Zedner, “Prevention and Criminalization: Justification and Limits” (2012) 15:4 New Crim L Rev 542.

[34] [2010] EWCA Crim 102.

[35] Ibid at para 9.

[36] Ibid.

[37] Ibid at para 10.

[38] See R v Mangham [2012] EWCA Crim 973 and R v Strong [2017] EWCA Crim 999; see also David Ormerod et al, Blackstone’s Criminal Practice 2017, 27th ed (Oxford, UK: Oxford University Press, 2016) at 2062–2064.

[39] Council of Europe, European Convention for the Protection of Human Rights and Fundamental Freedoms, as amended by Protocols Nos. 11 and 14, 4 November 1950, Eur TS 5.

[40] [2006] 1 SLR(R) 582 (HC) at [87].

[41] In the alternative, the Singapore courts could choose to overrule Chee Siok Chin and introduce the doctrine of proportionality into Singapore law but any such decision would have to be founded on very cogent grounds so as to justify the adoption of proportionality in lieu of the existing judicial test of Wednesbury unreasonableness. One such argument could be that proportionality functions as a secondary question on the part of the Court that focuses on the legitimacy of the executive or administrative action itself, that is to say, whether the impugned actions were made in accordance with fair procedures and not whether they are ‘right’. In doing so, this obviates the problem of merits review that Rajah J (as His Honour then was) pointed out in Chee Siok Chin at [87]. See also Alan D P Brady, Proportionality and Deference under the UK Human Rights Act: An Institutionally Sensitive Approach, (Cambridge: Cambridge University Press, 2012) at 11–13.

[42] Supra note 2 at s 45(1).

[43] Ibid at s 57.

[44] Ibid at s 58.

[45] Ibid at s 61.

[46] Ibid at s 46(1).

[47] Ibid at s 61(2)(b).

[48] Ibid at s 50.

[49] Ibid at s 61(3).

[50] Ibid.

[51] Ibid at s 51.

[52] Ibid at s 53.

[53] Ibid at s 55.

[54] By ‘double jeopardy’, I refer particularly to the principle of autrefois convict as enshrined in Article 11(2) of the Constitution of the Republic of Singapore (1999 Rev Ed). Although confiscation proceedings under the OCA are expressly treated as civil proceedings and that statute expressly states that OCA confiscation proceedings are not affected by the criminal proceedings under the CDSA, one could argue that it is possible for a person to be subject to concurrent confiscation order proceedings under both Acts for the same set of facts or offences, which could in turn lead to the imposition of two types of penalties that are in substance, similar to one another, thereby triggering Article 11(2). However, it is very unlikely that the Singapore courts will accept such an argument on the basis of existing case law that adopts a strict definition of the principle of autrefois convict. See Lim Keng Chia v Public Prosecutor [1998] 1 SLR(R) 1 (HC) at [7]–[14] and Gunalan s/o Govindarajoo v Public Prosecutor [2000] 2 SLR(R) 578 (HC) at [19]–[21].

---

The PDF version of the article can be found here. The article was first uploaded on 25 August 2019. The PDF version of the article was uploaded on 18 June 2020.

Leaving an Empty Seat: Wong Souk Yee’s answer to By-Elections in a Group Representation Constituency

The PDF version of this article is available for download here.

---

Leaving an Empty Seat: Wong Souk Yee’s answer to By-Elections in a Group Representation Constituency

Benjamin Low Junjie

I. Introduction

In Vellama d/o Marie Muthu v Attorney-General¹ [Vellama], the Court of Appeal held that Article 49 of the Constitution of Singapore,² which deals with the filling of vacant Parliamentary seats, imposed a duty on the Prime Minister to call a by-election “to fill casual vacancies of elected MPs which may arise from time to time”.³ However, despite the supposed universality of its conclusion, the Court of Appeal was quick to confine its judgment to vacancies arising in the context of Single-Member Constituencies (“SMCs”), having observed that separate legislative provisions and rules applied to instances where vacancies arose in a Group Representation Constituency (“GRC”).⁴ It remained an open question then as to what the proper scope and effect of Article 49 was on GRCs.

The recent High Court decision of Wong Souk Yee v Attorney-General⁵ [Wong Souk Yee] has since sought to address that question by holding that by-elections for a GRC would only be held in the event that all Members of Parliament (“MPs”) of that GRC have vacated their seats. This article will analyse the reasoning and the methodology of the High Court in reaching its conclusion and will discuss the implications of the judgment in the realm of constitutional interpretation.

II. Background

In Wong Souk Yee, the Applicant sought mandatory orders requiring that the MPs for the Marsiling-Yew Tee GRC vacate their seats in Parliament and that the Prime Minister advise the President to issue a writ of election for the Marsiling-Yew Tee GRC.⁶ Her action was founded on the basis that a vacancy had arisen in the Marsiling-Yew Tee GRC when one of its MPs, Madam Halimah Yacob, vacated her seat in Parliament on 7 August 2017 to contest in the 2017 Presidential Election.⁷ Since Madam Halimah’s departure, the Marsiling-Yew Tee GRC continued to be represented by its three remaining MPs from the People’s Action Party.⁸

The Applicant further sought declaratory orders in the alternative that s 24(2A) of the Parliamentary Elections Act⁹ [PEA] be interpreted as requiring all the MPs of a GRC to vacate their seats (i) when one or more MPs of the GRC vacate their seats; or (ii) in the alternative, when the only MP in the GRC who belongs to a minority community vacates his or her seat, so as to ensure consistency between s 24(2A) of the PEA and Article 49 of the Constitution.¹⁰ On the flip side, if such an interpretation was not possible, s 24(2A) was to be declared void for inconsistency with the Constitution as per Article 4 read with Article 49.¹¹

III. The High Court’s Decision

A. The Mandatory Orders

The Applicant justified her claim for the mandatory orders on three grounds. Firstly, she contended that Article 49(1) of the Singapore Constitution ¹² requires the calling of a by- election in a GRC when the seat of an Elected MP has become vacant for any reason other than the dissolution of Parliament. Secondly, the Applicant argued that Article 39A(2) of the Constitution¹³ requires that a GRC be represented by an MP belonging to a minority community, until the dissolution of Parliament. Last but not least, it was argued that a by-election should be called so as to give effect to the voters’ right to be represented by an elected MP of their choice.¹⁴

Much of the judicial debate in Wong Souk Yee centred on the Applicant’s first ground, which in effect concerned the proper interpretation of Article 49. For completeness, the full text of Article 49 reads as such:

Filling of vacancies

49.—(1) Whenever the seat of a Member, not being a non-constituency Member, has become vacant for any reason other than a dissolution of Parliament, the vacancy shall be filled by election in the manner provided by or under any law relating to Parliamentary elections for the time being in force.

(2) The Legislature may by law provide for —

(a) the vacating of a seat of a non-constituency Member in circumstances other than those specified in Article 46;

(b) the filling of vacancies of the seats of non-constituency Members where such vacancies are caused otherwise than by a dissolution of Parliament.

Article 49 in its present form was left untouched by the 1988 Amendments¹⁵ to the Constitution implementing the GRC system. Prior to that, the last substantive change to Article 49 was in 1984 concerning the introduction of Non-Constituency Members of Parliament.¹⁶ No other amendments were made to Article 49 since then. Indeed, when Article 49 was first enacted in the 1980 Reprint of the Constitution, ¹⁷ the GRC system was not even in existence. As Chua Lee Ming J succinctly identified, the true question that the High Court had to address, was the correct interpretation of Article 49(1) was in relation to GRCs.¹⁸ The earlier decision of Vellama had only addressed the scope of Article 49 in the context of an SMC.

The Applicant argued, on a plain reading of Article 49(1), that a by-election had to be called whenever a Parliamentary seat was rendered vacant, regardless of whether the seat belonged to an SMC or a GRC.¹⁹ Thus, whenever a vacancy arose in a GRC, the remaining MPs would have to resign their seats in order for a writ of election to be issued for the entire GRC. This would have to occur even if these MPs had no intention to vacate their respective seats, and where the conditions for disqualification or termination under Articles 45 and 46 were not made out.²⁰ This interpretation of Article 49 was necessary in order to give substantive effect to the requirement in s 27A of the PEA ²¹ that elections in GRCs had to be held between teams of candidates.

The Attorney-General submitted in response that Article 49(1) only required that a by-election in a GRC be held if all the MPs of that GRC vacated their seats mid-term or, in the alternative, that Article 49(1) did not apply to GRCs but only to SMCs.²²

In accepting the Attorney-General’s submissions, Chua J noted that the Applicant’s purported interpretation of Article 49(1) was a legal improbability given that there was no provision in Articles 45 and 46 of the Constitution requiring that the remaining MPs of a GRC had to vacate their seats or were disqualified from holding their seats in the event one of their fellow MPs vacated his or her seat.²³ This is correct insofar as the Constitution is silent on such a contingency occurring whereas s 24(2A) of the PEA²⁴ specifically mentions that the writ of election would only be issued in the event all MPs in a GRC have vacated their seats. To imply another constitutional ground on which an MP’s seat (or a group of MPs in this case) would either be vacated or the MP be disqualified from becoming a Member of Parliament would be tantamount to reading-in additional provisions in the Constitution by the Judiciary in the absence of clear or express words to that effect.²⁵

Chua J further held in favour of the Attorney-General’s interpretation of Article 49(1) on the basis that either an updating or rectifying construction could be applied to Article 49(1) to take into account the subsequent legislative amendments to the Constitution and the Parliamentary Elections Act, thereby allowing for an interpretation of Article 49(1) to mean that by-elections in a GRC would only be possible if all MPs had vacated their seats. ²⁶

An updating construction is first and foremost a rule of statutory interpretation that is meant to provide guidance “as to the legislator’s prima facie intention regarding the legal meaning of the enactment.”²⁷ For an updating construction to take effect, the Act in question must first have been an Act “that is intended to develop in meaning with developing circumstances”.²⁸ Once this has been established, the updating construction operates by presuming that “Parliament intends the court to apply to an ongoing Act a construction that continuously updates its wording to allow for changes since the Act was initially framed”.²⁹ In Singapore, the rule of updating construction was first expressly adopted in Comptroller of Income Tax v MT ³⁰ [CIT]. This was in turn cited in Wong Souk Yee with approval,³¹ as part of a three-stage framework (the “CIT Framework”).³²

In applying the CIT Framework to the present case, Chua J determined that since Parliament expressly intended for by-elections in a GRC to be held only in the event that all seats in that GRC had been vacated³³ and had made its intentions manifest by amending the Constitution to include Article 39A, an updating construction could be applied to Article 49(1) to reflect the changes effected by Article 39A.³⁴

B. Difficulties with Applying an “Updating Construction”

With respect, the learned Judge did not appear to have adequately considered the nature of the legislation he was required to interpret in accepting the applicability of the doctrine of updating construction. As previously stated, the presumption of updating construction is a rule of statutory interpretation. It owes its development to the peculiar characteristics of the English legal system, where there exists no written Constitution and the doctrine of Parliamentary supremacy prevails.³⁵ Given such differences between our legal systems, the Singapore courts ought to guard against resorting to ordinary canons of statutory interpretation too quickly in order to interpret a written constitution that proclaims itself to be the supreme law of the land. To infelicitously import rules of interpretation and construction for ordinary statutes wholesale into the realm of constitutional interpretation runs the risk of treating the Constitution as being no different from an ordinary piece of statute, even if such an interpretation is justified as giving effect to the purpose of the affected legislation.³⁶

Even if one accepts that the rule of updating construction can be applied in the context of constitutional interpretation, it is arguable that at the third stage of the CIT Framework, the application of an updating construction to Article 49(1) would itself have entailed a substantive change to the provision. With respect, a constitutional amendment may have been the more desirable solution. As the Court of Appeal in Vellama so held, Article 49(1) in its present form mandates that the Prime Minister has to call by-elections “to fill casual vacancies of elected MPs that may arise from time to time”.³⁷ This mandatory requirement is not subject to qualifications whatsoever on a plain reading of the text. Neither is it reflected in the 1988 Constitutional Amendment that Parliament intended for by-elections in GRCs to be subject to the requirement that all MPs vacate their seats first. Not even Article 39A itself makes any reference to the requirements for by-elections to GRCs, save that they be held only on a “team” basis.³⁸ Furthermore, the PEA’s unique requirements that must be met for a by-election in a GRC are themselves a significant amendment to the existing constitutional provision on by-elections since the departure of one or more MPs from a GRC would not trigger the by-elections mechanism unless every MP has vacated his or her seat. The result is that in practice, Parliamentary vacancies in a GRC would be left unfilled until the remaining MPs’ terms of office ends.

That being the case, the proper remedy would lie with Parliament to amend Article 49 itself to accommodate s 24(2A) of the PEA. As Menon JC observed in CIT, where a “significant legislative change has been effected in the first statute such that its importation into the second statute may have quite substantial effects, the court should ordinarily be slow to apply an updating construction to the second statute”.³⁹

C. Rectifying Construction: A Trojan Horse of Judicial Legislation?

A similar argument may be made about the Court’s willingness to apply a rectifying construction towards Article 49(1). Rectifying construction operates on the basis that “the legislator intends the court to apply a construction which rectifies any error in the drafting of the enactment”.⁴⁰ Its effect is similar to that of an updating construction, and essentially involves the addition or substitution of words into the statute to rectify the error or omission in the legislative drafting. In accepting the Attorney-General’s argument, Chua J reasoned that Parliament’s intention regarding by-elections in GRCs was manifested by the adoption of s 24(2A) of the PEA.⁴¹ That Article 49(1) was not also amended to reflect this change in the law was merely an omission on the Legislature’s part which in no way detracted from the express intention of Parliament.⁴²

With respect, it is still difficult to reconcile Chua J’s holding with the fact that the PEA is itself a piece of ordinary legislation that must inevitably rank below the Constitution in terms of legal hierarchy.⁴³ Constitutional supremacy as reflected in Article 4 mandates that any ordinary legislation that would at first blush be inconsistent with the Constitution ought to rendered void to the extent of the inconsistency unless the Constitution itself has been expressly amended.⁴⁴ S 24(2A) arguably constitutes a marked deviation from the constitutional duty in Article 49 to fill Parliamentary vacancies through the use of elections. It follows that an amendment to Article 49(1) is necessary to reflect this change, and in the absence of such, s 24(2A) is void for inconsistency qua Article 49(1).⁴⁵

Having accepted the Attorney-General’s interpretation of Article 49(1), the High Court proceeded to consider the Attorney-General’s alternative interpretation that Article 49(1) only applied to SMCs and not to GRCs. In agreeing with the Attorney-General’s alternative interpretation, Chua J reiterated his earlier holding that the legislative purpose was clear in that:

“[A]ll elections (including by-elections) in any GRC shall be held on a basis of such number of candidates as designated for that constituency by the President, and no by- election needs to be held to fill any vacancy in a GRC unless all the Members in that GRC have vacated their seats.”⁴⁶

The Attorney-General’s alternative interpretation of Article 49(1) was thus adopted as the correct one that “furthers the legislative purpose”.⁴⁷ Yet it seems unclear whether the legislative purpose that the High Court was referring to was the specific purpose of Article 49(1) or the general purpose of Part VI of the Constitution or even the Constitution as a whole. If Chua J was referring to the specific purpose of Article 49(1), then insufficient consideration was devoted to ascertaining the legislative purpose of Part VI of the Constitution, as per the test in Tan Cheng Bock v Attorney-General⁴⁸ [Tan Cheng Bock]. If, however, the learned Judge was referring to the legislative purpose of Part VI of the Constitution, his definition of the legislative purpose would appear to be an unduly narrow one. One must consider that Part VI deals wholly with the functions, organisation as well as composition of the Legislature of Singapore in its entirety, rather than simply on by-elections alone.⁴⁹

Since the Applicant’s claim could not succeed on her first ground, the High Court proceeded to consider the remaining two grounds underpinning her claim for mandatory orders. However, as the Applicant clarified in her oral submissions, her case was only that a by-election in a GRC had to be called if any seat in the GRC was vacated regardless of whether it was held by an MP belonging to a minority community or otherwise. She thus conceded her second ground that Article 39A(2) of the Constitution requires that a GRC be represented by an MP belonging to a minority community until the dissolution of Parliament.⁵⁰ The High Court further rejected her third ground of argument, that there existed an implied right by voters to be represented by an elected MP of their choice until the dissolution of Parliament.⁵¹

D. The Declaratory Orders

Given that the Applicant’s alternative claim for declaratory orders was founded on similar grounds as her claim for mandatory orders, the High Court rejected the Applicant’s alternative claim for the same reasons that it gave in rejecting the Applicant’s primary claim – namely that the Applicant’s proposed interpretation of Article 49(1) was patently incorrect. ⁵² Nevertheless, this author contends that, given the legal impossibility of the Applicant’s interpretation of Article 49(1) and the inherent risks of applying either an updating or rectifying construction to the Constitution, the irresistible conclusion appears to be that s 24(2A) of the PEA is simply inconsistent with the Constitution and thus void. It is unfortunate that the High Court did not canvass this particular point in greater detail, being content to simply reject it as stemming from the Applicant’s incorrect interpretation of Article 49(1).

IV. Implications for Constitutional Interpretation

Wong Souk Yee appears to reinforce the proposition that in future cases, the purposive approach⁵³ will increasingly become the dominant method of constitutional interpretation.⁵⁴ Coming on the back of the earlier decision of Tan Cheng Bock, which was itself heavily cited in Wong Souk Yee, it would seem that future cases dealing with questions of constitutional interpretation will inevitably concern themselves with attempting to ascertain the purpose of a particular Constitutional provision or a part of the Constitution. Yet, two potential issues have arguably arisen from the present case that necessitate further clarification from the Singapore courts.

Firstly, the apparent willingness of the High Court in Wong Souk Yee to resort to interpretive doctrines for ordinary legislation in interpreting the Constitution intimates their general applicability across different types of legislative instruments. It is true that Tan Cheng Bock itself appeared to accept the applicability of such rules in the context of constitutional interpretation.⁵⁵ However, care must be taken against bluntly importing these rules into the separate realm of constitutional interpretation, especially since they were developed by the Courts in common law, and intended for ordinary statutes. A liberal use of such rules and canons runs the risk of the courts straying into the field of constitutional amendment under the guise of interpretation, especially if such rules have the practical effect of injecting additional words and expressions into the Constitution when none previously existed. Further clarification from the Court of Appeal as to the ambit and applicability of these rules would be greatly welcomed.

Secondly, this increasing acceptance of the purposive approach as the primary method of constitutional interpretation poses a corollary question: whether the alternative rights-based approach, as laid out in the long line of cases stretching from Minister of Home Affairs v Fisher ⁵⁶ [Fisher] to Ong Ah Chuan v Public Prosecutor ⁵⁷ [Ong Ah Chuan] and then to Taw Cheng Kong (which cited both Fisher and Ong Ah Chuan with approval), will continue to be of any particular relevance in field of constitutional law. It will be recalled that in Ong Ah Chuan, which cited Fisher and referred to the Singapore Constitution, the Privy Council held that “the way to interpret a Constitution on the Westminster model is to treat it not as if it were an Act of Parliament but “as sui generis, calling for principles of interpretation of its own, suitable to its character...without necessary acceptance of all the presumptions that are relevant to legislation of private law””.⁵⁸

It is arguable that if the so-called sui generis approach in Ong Ah Chuan were applied to the present case, a different result might have been reached by the High Court with regards to the interpretation of Article 49(1). Presumably, the Applicant’s argument that there existed an implied right to representation within the Constitution would’ve been accorded more weight in determining the proper construction of Article 49(1).

While Ong Ah Chuan was decided before the purposive approach was expressly adopted as part of Singapore law, it remains good law nevertheless and presents a possible alternative approach towards constitutional interpretation. However, it will be necessary to re-examine whether the so-called sui generis approach in Ong Ah Chuan ought to remain part of Singapore case law in light of the increasing resort to the purposive approach in constitutional interpretation.

V. Conclusion

Wong Souk Yee sought to address the latent ambiguity surrounding the scope of the by-elections clause in Article 49 of the Constitution vis-à-vis the GRC scheme by holding that the provision could be updated or rectified to incorporate changes made elsewhere to existing electoral law. While the High Court’s conclusion appears to be technically correct based on the express wording of existing legislation regarding Parliamentary elections as well as an unduly broad application of the purposive approach in interpreting Article 49(1), the reasoning of the High Court has arguably opened a can of worms regarding the proper interpretation of constitutional provisions. The decision also runs a noticeable risk of undermining the very notion of constitutional supremacy. While it remains to be seen whether an Appeal will be brought, further clarification from the Court of Appeal as to the abovementioned points of contention would be greatly welcome.

---

[1] [2013] 4 SLR 1; [2013] SGCA 39.

[2] Constitution of the Republic of Singapore (1999 Rev Ed), art 49.

[3] Supra note 1 at [82].

[4] Ibid at [80] and [82].

[5] [2018] SGHC 80.

[6] Ibid at [3].

[7] Royston Sim, “Halimah Yacob steps down as Speaker and MP, resigns from PAP to run for President”, The Straits Times (7 August 2017), online: <https://www.straitstimes.com/politics/halimah-yacob-steps-down-as-speaker-and-mp-resigns-from-pap-to-run-for-president>.

[8] Valerie Koh & Kenneth Cheng, “3 remaining Marsiling-Yew Tee GRC MPs to build on Halimah’s good work”, TODAYonline (7 August 2017), online: <https://www.todayonline.com/singapore/3-remaining-grc-mps-build-halimahs-good-work>.

[9] Cap 218, 2011 Rev Ed Sing.

[10] Supra note 5 at [4].

[11] Ibid.

[12] Supra note 2 at art 49(1).

[13] Ibid at art 39A(2).

[14] Supra note 5 at [12].

[15] Constitution of the Republic of Singapore (Amendment) Act, No 3 of 1988, amending Constitution of the Republic of Singapore (1985 Rev Ed).

[16] Constitution of the Republic of Singapore (Amendment) Act, No 16 of 1984, s 5, amending Constitution of the Republic of Singapore (1980 Reprint), Art 49.

[17] Constitution of the Republic of Singapore (1980 Reprint).

[18] Supra note 5 at [9].

[19] Ibid at [14].

[20] Supra note 2 at arts 45 and 46.

[21] Supra note 9 at s 27A.

[22] Supra note 5 at [16]–[18].

[23] Ibid at [23]–[26].

[24] Supra note 21 at s 24(2A).

[25] On the dangers of unduly expanding the scope of or implying into the Constitution additional interpretations, see Rajeevan Edakalavan v Public Prosecutor [1998] 1 SLR(R) 10; [1998] SGHC 2 at [19].

[26] Supra note 5 at [27].

[27] FAR Bennion & Oliver Jones, ed, Bennion on Statutory Interpretation: A Code, 6th ed (London, UK: LexisNexis, 2013) at 797.

[28] Ibid.

[29] Ibid.

[30] [2006] 3 SLR(R) 688; [2006] SGHC 120.

[31] Supra note 5 at [28]–[29].

[32] Supra note 30 at [46]–[47].

[33] Supra note 5 at [36]; see also Parliamentary Debates Singapore: Official Report, vol 50 at cols 334–335 (12 January 1988) (Mr Goh Chok Tong).

[34] Ibid at [33]–[38].

[35] As expressly acknowledged in Bennion, supra note 27 at 167.

[36] See VK Rajah, SC, “Interpreting the Singapore Constitution” in Jacyln L Neo, ed, Constitutional Interpretation in Singapore: Theory and Practice (New York: Routledge, 2017) 23 at 24.

[37] Supra note 1 at [82].

[38] Supra note 2 at art 39A(2)(c).

[39] Supra note 30 at [48].

[40] Supra note 27 at 788.

[41] Supra note 5 at [41].

[42] Ibid.

[43] Halsbury’s Laws of Singapore, vol 1 (Singapore: LexisNexis, 2017 Reissue) at 100, para 10.506.

[44] Supra note 2 at Art 4. See also Chan Hiang Leng Colin v Public Prosecutor [1994] 3 SLR(R) 209; [1994] SGHC 207 at [50] and Taw Cheng Kong v Public Prosecutor [1998] 1 SLR(R) 78; [1998] SGHC 10 [Taw Cheng Kong] at [14] for judicial recognition of the doctrine of constitutional supremacy.

[45] While no statute passed by Parliament has ultimately been held unconstitutional by the courts, there nevertheless exists judicial precedent for such an approach: see Taw Cheng Kong, ibid, at [84].

[46] Supra note 5 at [47].

[47] Ibid at [49].

[48] Tan Cheng Bock v Attorney-General [2017] 2 SLR 850; [2017] SGCA 50 at [41].

[49] This can be contrasted with Vellama, supra note 1 at [79], where the Court of Appeal interpreted Article 49(1) with reference to the broad purpose of the Constitution in establishing a Westminster model of government with a right to representation.

[50] Supra note 5 at [52]–[53].

[51] Ibid at [57].

[52] Ibid at [59]–[60].

[53] Interpretation Act (Cap 1, 2002 Rev Ed), s 9A; see also Constitution of the Republic of Singapore (1999 Rev Ed) at art 2.

[54] Some commentators have welcomed this unified approach for both constitutional and statutory interpretation: see Goh Yihan, “The Interpretation of the Singapore Constitution: Towards a unified approach to interpreting legal documents” in Jaclyn L Neo, supra note 36, 257 at 276.

[55] Supra note 48 at [38].

[56] [1980] AC 319.

[57] [1979-1980] SLR(R) 710; [1980] SGPC 6.

[58] Ibid at [23].

---

New Sentencing Principles for Rape – An Analysis of Ng Kean Meng Terence v Public Prosecutor

A PDF version of this entry is available for download here.

---

New Sentencing Principles for Rape – An Analysis of Ng Kean Meng Terence v Public Prosecutor

Benjamin Low

I. INTRODUCTION

What is the most appropriate sentence that should be meted out onto an accused person who has been found guilty of the offence of rape?

The apparent simplicity of this question belies powerful, and oftentimes conflicting, sentencing policy considerations and more abstract questions of ethical principles and sentencing theory. The recent case of Ng Kean Meng Terence v Public Prosecutor¹ [Ng Kean Meng Terence] is the Singapore Court of Appeal’s latest attempt at creating a new, comprehensive sentencing framework for rape in order to address the above quandaries. This article seeks to analyse the state of the law prior to Ng Kean Meng Terence and discusses the implications and effects of the case on the criminal law.

II. BACKGROUND

Prior to Ng Kean Meng Terence, the law on sentencing for rape offences was encapsulated in Public Prosecutor v NF² [NF]. In NF, V K Rajah J (as he then was), formulated a new sentencing framework (the “NF Framework”) that was meant to replace the earlier sentencing guidelines in the earlier case of Chia Kim Heng Frederick v Public Prosecutor³ [Frederick Chia].

Under the NF Framework, rape cases were divided into four categories, each with a minimum sentence of imprisonment and caning of differing degree.⁴ The NF Framework may be briefly summarised as follows:

1. Category 1 – Cases with no aggravating and/or mitigating factors with a starting sentence of ten years imprisonment and not less than six strokes of caning.
2. Category 2 – Cases with any one of the seven aggravating factors listed in NF, such as where rape that is committed by two or more persons acting in concert; or where the offender is in a position of responsibility towards the victim.⁵ For such instances, the starting sentence would have been fifteen years imprisonment and twelve strokes of the cane.
3. Category 3 – Cases where the victim is raped on multiple occasions, or where rape is perpetrated on multiple victims. This category shares the same sentencing benchmark as a Category 2 case. Rajah J justified this on the basis that the Prosecution would normally prefer multiple charges against the offender, thereby leading the courts to order that two or more of the sentences imposed run consecutively, thereby resulting in a higher sentence meted out.⁶
4. Category 4 – Cases where the offender has “manifested perverted or psychopathic tendencies or gross personality disorder, and where he is likely, if at large, to remain a danger to women for an indefinite time”.⁷ In such cases, the maximum sentence of twenty years imprisonment and twenty-four strokes of the cane would be handed out.

Ideally, the NF Framework operates by having the Court first determine the category under which the particular rape offence should be placed, followed by the Court then adjusting the benchmark sentence upwards or downwards to take into account the additional aggravating and mitigating factors disclosed on the facts.⁸

The NF Framework was first considered and approved of by the Court of Appeal in the context of rape simpliciter in Public Prosecutor v Mohammed Liton Mohammed Syeed Mallik.⁹ It was subsequently applied by the Singapore courts to a wide range of cases involving rape committed in various permutations and factual situations.¹⁰

III. PROBLEMS WITH THE NF FRAMEWORK

Notwithstanding the durability and versatility of the NF Framework over the past eleven years, the Court of Appeal in Ng Kean Meng Terence noted that problems remained with the NF Framework that, in its opinion, necessitated a revision of the sentencing law on rape. These were, firstly, that the categories laid down in NF were themselves not properly defined – to the extent that some of the categories served no clear purpose.¹¹ Category 3, for example, was defined in NF as encompassing cases involving the repeated rape of the same victim or rapes committed by a single offender on multiple victims. However, given that the Criminal Procedure Code¹² requires that (and tying in with longstanding prosecutorial practice) separate and multiple charges be pressed against an accused person based on the facts disclosed¹³ and separate sentences imposed for each charge which the accused person is convicted of,¹⁴ this appeared to remove the need for a separate Category 3 to deal with multiple offending under the NF Framework.

A second, more pressing problem, was the lack of conceptual coherence with which the Category 2 aggravating factors were included inside Category 2. While it is not possible to list out all the Category 2 aggravating factors here, the Court of Appeal noted with disquiet that “[T]here does not appear to be any conceptual unity or discernible unifying theme”¹⁵ underlying the inclusion of these factors and the exclusion of others. While Rajah J no doubt intended that the list of Category 2 aggravating factors themselves be complemented with the additional aggravating factors and/or mitigating factors of each specific case, there is considerable weight in the Court’s criticisms with regards to the admittedly unclear criteria on which the Category 2 aggravating factors were based on.

The final nail in the coffin was the Court of Appeal’s finding that the NF Framework did not properly account for the statutory aggravating factors already present in the Penal Code. Section 375(3) of the Penal Code¹⁶ provides for a minimum sentence of 8 years imprisonment and 12 strokes of the cane if an offender either (a) voluntarily causes hurt to a victim or any other person in order to commit or facilitate the commission of rape; (b) puts the victim in fear of death or hurt to herself or any other person in order to commit or facilitate the commission of rape; or (c) rapes a victim under 14 by having sexual intercourse with her without her consent. None of these factors are included in the Category 2 aggravating factors within the NF Framework. In the Court’s opinion, there was a need to clarify the relationship between the two groups of aggravating factors.

IV. THE NG KEAN MENG TERENCE SENTENCING FRAMEWORK

Having opted to do away with the NF Framework, the Court in Ng Kean Meng Terence embarked on the difficult task of developing a new sentencing framework (the “Ng Kean Meng Terence Framework”) for the offence of rape. After considering past approaches by the courts in the preceding case law, the Court of Appeal rejected these approaches as unsuitable and opted to adopt the framework developed in the New Zealand case of R v Taueki.¹⁷

Generally speaking, the Ng Kean Meng Terence Framework operates in two steps:¹⁸

1. Firstly, the court should identify which sentencing band the offence in question falls within by taking into account the offence-specific factors in the case. Once the sentencing band has been identified, the Court should then determine where within the aforementioned band the present offence falls in order to derive a sentence for a starting point.
2. Secondly, the court should then consider the aggravating and mitigating factors which are personal to the offender to calibrate the appropriate sentence for the offender.

Step 1. Classification of the Offence

The Court of Appeal stressed that only “offence-specific” factors which relate to the circumstances of the offence such as the particular harm caused, the manner in which the offence was committed, or the specific role played by the offender in the commission of a offence by a group.¹⁹ This proposition is a common-sensical one that recognises that different factual permutations of rape should attract different penal consequences.

A non-exhaustive list of offence-specific factors, drawing on existing case law, was proposed by the Court:²⁰

• Group Rape: Offences committed by groups of persons.
• Abuse of position and breach of trust: Where the offender is in a position of responsibility towards the victim or in whom the victim has placed her trust by virtue of his office of employment.
• Premeditation: Where the offender engages in some form of planning or exhibits premeditation in committing the act (e.g. through the use of drugs or engaging in predatory behaviour).
• Violence: Actual or threatened use of violence.
• Vulnerable victim: Whether the victim was especially vulnerable by reason of age, physical frailty, mental impairment or disorder, and/or learning disability.
• Forcible rape of a victim below the age of fourteen.
• Hate crime: Where the offence was committed as a hate crime, such as an expression of racial and/or religious prejudice, or in other situations where the victim has been specifically targeted by reason of her membership of a vulnerable minority group.
• Severe harm: Severe harm inflicted on the victim such as pregnancy, transmission of a serious disease or a psychiatric illness.
• Deliberate infliction of special trauma.

The Court of Appeal also cautioned against taking into account the two factors of (i) forgiveness by the victim towards the offender and (ii) consent given by a victim under fourteen on the basis that such factors were usually irrelevant.²¹ Rejecting the second factor in particular, ties in with the express wording of s 375 of the Penal Code in criminalising sex with a person under the age of fourteen.

Having regard to the offence-specific factors, the Court must then place the offence within an appropriate sentencing band.²² For ease of reference, the three sentencing bands, each with different sentencing outcomes, are laid out below:

Once the appropriate sentencing band has been identified, the Court would then identify where precisely along the range prescribed for the band a particular sentence falls.²⁴

Step 2. Calibrating the Sentence

Once the starting-point sentence has been identified, the Court must then consider the “offender-specific” factors of the case – that is to say, those factors which relate to the personal circumstances of the offender himself,²⁵ rather than relating to the manner and mode of the offending. In making this distinction, it seems that the Court of Appeal was clearly seeking to prevent any double-counting of factors that could lead to an imposition of more severe sentences than would usually be the case.

The possible offender-specific aggravating and mitigating factors recognised in Ng Kean Meng Terence are as follows:²⁶

One of the more controversial aspects of Ng Kean Meng Terence was whether pleas of guilt could constitute a mitigating factor. While this contentious point will be discussed in further detail below, it will suffice to say that the Court in Ng Kean Meng Terence was prepared to treat pleas of guilt as one of the many offender-specific mitigating factors.²⁷

V. COMMENTARY

From the outset, it should be noted that the Ng Kean Meng Terence Framework does not constitute a fundamental or radical revision of the sentencing law for rape. What the Ng Kean Meng Terence Framework does is to improve the present sentencing framework by better delineating the different factors that courts usually consider when determining the appropriate sentence to be meted out onto the offender.

Thus the distinction between “offence-specific” and “offender-specific” factors removes the problem of double-counting while ensuring that all relevant factors in each case are taken into consideration by the courts.²⁸ The offence-specific factors themselves have also been modified to circumvent the conceptual difficulties of the NF Framework while addressing the third problem raised as to the statutory-aggravating factors in the Penal Code.²⁹

A second noteworthy point is the use of sentencing bands which injects greater clarity in determining the starting-point sentence. Rather than having to work from scratch at a fixed benchmark sentence under the NF Framework, sentencing courts can now better identify which Band, and thus which part of the Band, the case in question belongs to.

It bears mentioning that since the decision of Ng Kean Meng Terence, there have been some additional developments in the local case law with regards to the Ng Kean Meng Terence Framework. While it is not possible to consider these developments in great detail, they warrant a mention in this article for completeness sake. In the later decision of Pram Nair v Public Prosecutor,³⁰ the Court of Appeal recognised that the intoxication of a victim could constitute an additional offence-specific aggravating factor though it cautioned that this factor would not necessarily manifest itself in all cases involving an intoxicated victim.³¹ Much would depend on the degree of intoxication in each particular case. More importantly, the Ng Kean Meng Terence Framework was transposed onto the offence of sexual assault by penetration, with three sentencing bands imposed with varying sentencing ranges.³² As a preliminary note, these developments ought to be welcomed as promoting unity in the courts’ approaches towards both types of sexual offences.

However, notwithstanding the merits of the Ng Kean Meng Terence Framework, it is submitted that the shift in the Court of Appeal’s attitude towards pleas of guilt could carry possibly adverse implications in the sentencing law towards criminal offences. Prior to Ng Kean Meng Terence, it was settled law that a plea of guilt would not entitle an offender to a sentencing discount unless it was made out of genuine remorse.³³ However, the Court of Appeal has since departed from that position by recognising in Chang Kar Meng v Public Prosecutor³⁴ [Chang Kar Meng] that a plea of guilt could constitute a mitigating factor for utilitarian reasons (i.e. it saves victims the horror of having to recount the ordeal and it saves the resources of the State if the case were to go to trial) besides the existing remorse-based justification. The Court galvanized this proposition in Ng Kean Meng Terence by citing Chang Kar Meng with approval.³⁵

While the utilitarian considerations admittedly cannot be discounted, the Court of Appeal’s pronouncement in Ng Kean Meng Terence has the effect of suggesting that a plea of guilt will almost certainly entitle an offender to a sentencing discount as long as he pleads guilty to a charge of rape, even if the guilty plea was not motivated by genuine remorse or contrition. Though the Court later sought to clarify that guilty pleas would only be treated as one of the many mitigating factors, it is not difficult to foresee that rape offenders would be more inclined to try their luck and enter pleas of guilt in the hopes of obtaining a lighter sentence. In a Band 1 case of rape with no further aggravating factors, a plea of guilt could potentially entitle an offender to a sentence beneath the lowest threshold in Band 1. In such situations, and where the offender does not seem to have displayed genuine remorse, can it truly be said that the public interest has been effectively safeguarded or that the overriding considerations of rehabilitation and/or deterrence have been achieved?

This leads us to a more fundamental problem with the Ng Kean Meng Terence Framework in that it does not provide any real change in the sentencing law for rape. While this was no doubt the express intention of the Court of Appeal itself,³⁶ one cannot help but feel that a golden opportunity was missed in reviewing the present sentencing law on rape and then determining whether or not the prescribed sentencing ranges ought to be revised upwards or downwards. Indeed, the lowest sentence of ten years imprisonment and six strokes of caning in Band 1 was clearly based on the earlier decision in Frederick Chia³⁷ but this writer submits that the sentencing ranges for the various sentencing bands should be revised upwards. A stricter sentencing regime would better accord with the longstanding deterrent aspect of the sentencing jurisprudence of the Singapore courts,³⁸ especially given a disturbing rise in sexual crimes over the past few years.³⁹

VI. CONCLUSION

The process of determining and laying down suitable and comprehensive sentencing guidelines for various offences is a continuous and challenging effort that often requires the courts to continuously take into account broader societal and legal changes in an effort to ensure that such guidelines remain relevant and up-to-date while ensuring that the public interest is safeguarded. Since the NF Framework, the criminal law in Singapore has evolved immensely, and the Courts must continue to refine and redevelop the existing case law to account for the new legal climate.

In light of the intrinsic seriousness of the offence of rape in particular, and the difficulties that courts sometimes encounter in threshing out the most appropriate sentence, the Court of Appeal has boldly decided to revise the sentencing law for rape by devising a new sentencing framework that meets these requirements. Although it remains to be seen whether the Ng Khean Meng Terence framework is sufficiently capable of withstanding future challenges in the form of hard cases, there is much to commend the Court for its efforts in tackling what has been a most complex area of criminal law.

---

[1] [2017] 2 SLR 449.

[2] [2006] 4 SLR(R) 849.

[3] [1992] 1 SLR(R) 63.

[4] Supra note 2 at [20]–[21].

[5] Ibid.

[6] Ibid, at [37].

[7] Ibid, at [21]; see also R v Keith Billam (1986) 8 Cr App R (S) 48 at pp 50–51.

[8] Ibid, at [23]; see also Ng Kean Meng Terence at [10].

[9] [2008] 1 SLR(R) 601.

[10] See PP v UI [2008] 4 SLR(R) 500 and PP v AOM [2011] 2 SLR 1057.

[11] Supra note 1 at [13]–[15].

[12] (Cap 68, 2012 Rev Ed).

[13] Ibid, at s 132.

[14] Ibid, at s 306(1).

[15] Supra note 1 at [17].

[16] (Cap 224, 2008 Rev Ed).

[17] [2005] 3 NZLR 372.

[18] Supra note 1 at [39].

[19] Ibid, at [43].

[20] Ibid, at [44].

[21] Ibid, at [45].

[22] Supra note 1 at [47].

[23] See PP v Bala Kuppusamy [2009] SGHC 97 at [28]–[29].

[24] Supra note 1 at [61].

[25] Ibid, at [62].

[26] Ibid, at [64]–[65].

[27] Ibid, at [71].

[28] Ibid, at [73].

[29] Supra note 16 at s 375(3).

[30] [2017] 2 SLR 1015.

[31]Ibid, at [126]–[132].

[32] Ibid, at [158]–[159]; although, strangely, the Court held that the respective sentencing ranges for sexual assault by penetration were to be lower than that for rape.

[33] Supra note 1 at [67]; see also Rajah J’s holding in Angliss Singapore Pte Ltd v PP [2006] 4 SLR(R) 653 at [56] and [77].

[34] [2017] 2 SLR 68 at [47].

[35] Supra note 1 at [68]–[69]; see also Chia Kim Heng Frederick v PP [1992] 1 SLR(R) 63 at [20].

[36] Ibid, at [74].

[37] Supra note 3 at [20].

[38] See PP v Law Aik Meng [2007] 2 SLR(R) 814 at [18]–[19].

[39] Seow Bei Yi, “Rise in sex crimes over past 5 years: State Courts”, The Straits Times (3 April 2017), online: <http://www.straitstimes.com/singapore/courts-crime/rise-in-sex-crimes-over-past-5-years-state-courts> ; see also “Violence: Rape Victims” (24 February 2017), online: Ministry of Social and Family Development <https://www.msf.gov.sg/research-and-data/Research-and-Statistics/Pages/Violence-Rape-Victims.aspx> .

---