27 September 2018
On 10 September 2018, the Ministry of Home Affairs (“MHA”) and Ministry of Law (“MinLaw”) jointly issued a consultation paper seeking feedback on proposed amendments to the Penal Code as set out in the recommendations of the Penal Code Review Committee (“PCRC”). The consultation closes on 30 September 2018.
The Penal Code (Amendment) Bill is targeted to be tabled in Parliament in November 2018.
In MinLaw’s addendum to the President’s Address in 2016, the Government announced its intention to undertake substantive reform of Singapore’s criminal laws to ensure they remain relevant and up to date. In July 2016, MHA and MinLaw convened the PCRC to undertake a review of the Penal Code, and make recommendations for reform. On 31 August 2018, the PCRC’s report and recommendations were submitted to the Minister for Home Affairs and Minister for Law.
Overview of PCRC’s recommendations
The PCRC’s recommendations are wide ranging and comprehensive, with proposals not only to harmonise the Penal Code provisions and update the Penal Code provisions on fault elements and defences, but also to introduce new types of offences to tackle crimes facilitated by technological developments, emerging crime trends, and crimes against vulnerable victims.
This article will focus on the key recommendations which have greater implications for corporations.
Crimes committed in the virtual arena
Recommendations to address crimes committed in the virtual area include:
- extending the definition of “property” to include intangible property (e.g. air miles and virtual currency) or incorporeal property (e.g. drawing rights from a bank);
- extending the definition of “valuable security” to include electronic records; and
- clarifying that a corporate entity can be deceived for the purposes of the offence of cheating, regardless of whether any of its human agents are personally deceived.
The PCRC recommends creating a new offence of illegal possession of another person’s identity information. Recent amendments to the Computer Misuse and Cybersecurity Act (“CMCA”) criminalise identity theft through computer misuse. The proposed identity theft offence will address a gap in the law to cover information obtained through non-technological means such as traditional theft
of identity documents.
To ensure a consistent approach to territorial jurisdiction for white collar offences under various statutes, such as the CMCA and the Securities and Futures Act, the PCRC proposes to clarify which fact elements must occur in Singapore for Singapore’s criminal justice system to have jurisdiction over white collar and property offences. The PCRC recommends:
- setting out a schedule of offences (consisting of important property and white collar offences) under which the Singapore courts will have jurisdiction where any fact element of the offence that takes the form of an event occurs in Singapore; and
- specifying that for scheduled offences, the Singapore courts will have jurisdiction where the offence involved an intention to make gain or cause loss or expose another to a risk of loss or cause harm to any person in body, mind, reputation or property, and that gain, loss or harm occurred in Singapore.
The PCRC recommends creating a new offence of “no-outcome fraud” to focus on the intent of an accused person rather than the effects of a deception on the victim. This new offence is committed by any person who, fraudulently or dishonestly, (a) makes a representation, (b) fails to disclose information which he is under a legal duty to disclose, or (c) abuses, whether by act or omission, a position he occupies in which he is expected to safeguard, or not to act against, the financial interests of another person.
Obtaining services fraudulently
The PCRC recommends creating a new offence of fraudulently or dishonestly obtaining a service knowing that it is being made available on a for-payment basis but not intending that any payment be made.
Criminal breach of trust
The PCRC proposes to update the language of the criminal breach of trust (“CBT”) provisions in the Penal Code and review the categories covered by the provisions. In PP v Lam Leng Hung  1 SLR 659, the Singapore Court of Appeal decided that section 409 did not cover directors of corporations, governing board members or key officers of a charity, and officers of a society. Such persons committing CBT would be punished under section 406 instead. The recommendations make clear the Government’s policy that such persons in positions of responsibility are more culpable and have an enhanced potential for harm when they commit CBT.
Emerging crime tactics
The PCRC’s recommendations to address emerging crime tactics include:
- Clarification of definitions: Clarifying the definitions of “wrongful gain”, “wrongful loss”, “dishonestly” and “fraudulently”;
- Dishonestly retaining stolen property: Aligning the offences of dishonestly retaining stolen property in the Penal Code with similar offences of money-laundering under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act;
- Cheating: Covering scenarios where the person cheated causes another person (as opposed to the person cheated himself) to deliver the property to the offender; and
- Falsification of accounts: Allowing a single charge to be tendered in respect of falsification of “a set” of books, electronic records, papers, writings, valuable securities or accounts, which will address current difficulties in defining what a single “electronic record” is (whether it is a single spreadsheet file, or a tab within the file, or a cell within the tab).