BROADENING THE AMBIT OF THE “UNSOUNDNESS OF MIND” DEFENCE FOR ACCUSED PERSONS; AND A RELOOK AT THE SENTENCING PROVISIONS FOR SERIOUS SEXUAL OFFENCES THAT PROVIDE FOR CANING.

The Penal Code was last reviewed in 2019. 2 years later, several amendments were sought to be introduced via the Criminal Law (Miscellaneous Amendments) Bill. In my speech, I conveyed my broad agreement to the aims of the Bill. The focus of my speech in Parliament on 13 Sep 2021 was: (1) To consider broadening the ambit of the “unsoundness of mind” defence for accused persons; and (2) to relook at the sentencing provisions for serious sexual offences that provide for caning to ensure that they are fit for purpose.

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Mr. Speaker, Sir, I agree with the broad aims of the Bill, as articulated by the hon Minister and the hon Minister of State. I wish to touch on two areas in my speech.

First, noting that it is intended to narrow the applicability of the defence of unsoundness of mind, I would argue that public interest may be better served to go to the other direction — to broaden the grounds for raising the defence of unsoundness of mind. Second, in keeping with the raison d’etre of this Bill, which is to protect women, children and vulnerable persons from sexual predators, there should not be an age limit to caning as punishment. Instead, we should look to whether the person is medically fit to be caned. If it is found to be so, age should be no impediment.

On the first point, I note that it is proposed that before an accused may rely on the defence of unsoundness of mind under section 84 of the Penal Code, he needs to prove that he is both incapable of knowing that what he did was wrong by the ordinary standards of reasonable and honest persons; and wrong as contrary to law. In other words, he did not know what he did was both morally and legally wrong.

I further note that the amendments do not seek to widen the ambit of section 84, which covers only cognitive disorders, to include conative or volitional disorders; meaning to include situations where the accused simply cannot control his actions because of a mental disorder.

I am concerned that, because of the two observations that I made, the ambit of the proposed section 84 is too narrow and this may not be in public interest.

Let me explain. Any lawyer who has raised the defence of unsoundness of mind in Court, and I have done so, would know that an acquittal represents somewhat a Pyrrhic victory. This is because when an accused is held to have done the offending act but acquitted on the grounds of unsoundness of mind, will be ordered by the Minister to be kept in safe custody, usually, in a psychiatric institution “during the President’s pleasure”.

In other words, he will be incarcerated at the institution indefinitely. Whilst there, he would receive treatment and would be monitored every six months. The Minister who gets the six-monthly reports on the accused, may order him to be discharged, if it is determined that the accused would not be a danger to himself and to others.

Instead of narrowing the ambit of section 84 of the Penal Code, it is my respectful view that public interest may be better served with a broader section 84, so that in an appropriate case, the Court is able to invoke the provisions to ensure that a person who is suffering from a serious mental illness, gets inpatient psychiatric treatment for as long as he would be a danger to himself and the public.

As it stands today, he may be punished and sentenced in the usual way. If he were to be sentenced to imprisonment, the public will then have to run the risk that the person may reoffend after serving the sentence, causing harm to himself or others, because of his continuing mental illness.

Let me illustrate this through a case — the 2001 High Court decision of PP vs Dolah bin Omar. In that case, the accused, aged 55, murdered his own uncle by bludgeoning him to death with a stool. He then cut off his uncle’s genitals. The trial judge described the killing as “utterly gruesome”. The accused, however, was suffering from chronic schizophrenia which brought about a persecutory delusion. Through his counsel, he pleaded guilty to a charge of culpable homicide not amounting to murder on the basis of diminished responsibility. The accused however did not raise the defence of unsoundness of mind.

The Court was faced with a dilemma. It recognised that it is arguable that the accused should deserve compassion and leniency since what he did was because of his mental illness. Ordinarily, this would have meant that he should be sentenced to imprisonment not exceeding 10 years.

That in turn, would have meant he would have been back in circulation in about seven years’ time after taking into account remission. Given his mental illness, this may cause further danger to himself and others. Naturally, the Court felt that such an eventuality was not desirable. It rued over the fact that the defence of unsoundness of mind was not invoked because that would allow the accused to be kept in custody in a psychiatric institution for so long as necessary. In the end, the Court, after expressing a lot of difficulty, decided to impose a life imprisonment sentence purely on a utilitarian basis, that is, of course, not doctrinally ideal.

I would also add that since then, we have passed in this House, provisions that would allow for the imposition of Mandatory Treatment Orders (MTOs) on persons who, as a result of their psychiatric conditions, committed minor offences.

Some years back, I argued in this House for a widening of the ambit of offences for which MTOs may be imposed. This led to the issuance of the Criminal Procedure Code (Prescribed Offences for Mandatory Treatment Orders) Regulations 2018 which prescribed a wider list of more serious offences for which MTOs can be imposed. So, the trend where persons with mental illnesses are concerned, is where possible, to impose sentences which will allow them to get treatment which will, hopefully, allow them not to continue with their harmful behaviour.

In 2018, the Penal Code Review Committee, in its seminal report issued in August 2018 that precipitated the amendments to the Penal Code in 2019, also advocated a broadening of section 84 of the Penal Code that would allow accused persons with serious mental illnesses to receive clinical intervention instead of being punished.

It made two points: that section 84 should be broadened to include volitional acts because “there is no good reason why the criminal law should not account for the fundamental principle that a person should not to be held criminally responsible for his involuntary conduct”.

The majority of the Committee also felt it would be sufficient for an accused to be entitled to the defence of unsoundness of mind even if he knew what he did was legally wrong, so long as he did not know what he did was morally wrong, by reference to an objective standard. Against this backdrop, amendments were made in this House to the text of section 84 of the Penal Code in 2019.

I had occasion to review the speeches made by the hon Senior Parliamentary Secretary then, who moved several Penal Code amendments, which included section 84 of the Penal Code in 2019. With respect, it was a missed opportunity for the Government to explain why it was taking a different tack from the PCRC which advocated a broadening of the unsound mind defence.

In fairness, as the hon Minister of State said, I noted the illustration too, that was introduced through the amendment of section 84 of the Penal Code which, on its own, seems to manifest an intention that a conjunctive interpretation should be adopted for the amended section 84 of the Penal Code. I am however not surprised that the current amendments are still being sought to amend the wording of section 84.

This is because it is specifically provided under section 7A of the Interpretation Act, where an illustration is inconsistent with the provision, the provision prevails. In other words, parliamentary intention could not have been sufficiently manifested by mere reference to the illustration. As a result of these developments, even though this provision is being amended for the second time in two years, this is probably the first time that we will be able to hear why is it that it is being proposed to narrow the ambit of section 84 of the Penal Code.

I would invite the hon Minister of State to please explain why is it felt that the conjunctive interpretation is to be preferred over the disjunctive interpretation of section 84 of the Penal Code; and why is that section 84 is still not broadened to include volitional acts?

I now turn to the primary intention of this Bill which is to enhance penalties for some sexual offences such as outrage of modesty, sexual activity in presence of a minor and so on. Having regard to the crime trend that is being highlighted, I support the amendments to the sentencing provisions that will enable more deterrent sentences to be imposed in egregious cases. This includes not just imprisonment but caning too.

What I would like to focus on in my speech is whether the provisions providing for the sentence of caning that may be imposed by the Court on male offenders for committing serious sexual offences are fit for purpose. As is well known, sentences of caning prescribed in the Penal Code provisions dealing with serious sexual offences are subject to a requirement in the Criminal Procedure Code that a male offender of or above the age of 50 cannot be caned.

This has been interpreted by the Court of Appeal in 2015 decision of Yong Vui Kong vs PP, to mean that Parliament intended to use the age of 50 as “a convenient proxy to screen out those who are likely to be unfit for caning”, given that there is “an inverse relationship between one’s age and one’s physical condition”.

In March 2020, I highlighted in this House, that the cut-off age of 50 was first introduced in 1900. I also highlighted that the life expectancy at birth for males in Britain, from which the Criminal Procedure Code was enacted in Singapore through Imperial legislation, was 47. The cut-off age more or less coincided with the life expectancy of males at that time. More than 120 years later, the life expectancy at birth for males in Singapore is slightly more than 80 years.

I further pointed out that in Malaysia, whilst the age of 50 has still been retained as a cut-off point for caning, when it comes to serious sexual offences, there is no cut-off age for a male convicted for a serious sexual offence. So long as he is assessed to be medically fit, he can be caned.

I asked if the provision limiting caning for serious sexual offenders to males below 50 is fit for purpose. In reply, the hon Minister of State informed this House then, that her Ministry will look into it and take steps as necessary. More than a year later, I remain concerned whether the provision is still fit for purpose.

I also wish to highlight an unintended consequence of maintaining the age of 50 as a cut-off age. A repeat offender over 50 may potentially get a less deterrent sentence even after taking into account that he may get an additional term of imprisonment of up to 12 months in lieu of caning.

Just a few days ago on 31 August 2021, The Straits Times published an article of a case of a man who was convicted in 2001 and sentenced to 19 years’ jail and 24 strokes of the cane for rape and other sexual offences committed against his then-stepdaughter. After coming out of prison in 2013, the man, after less than three years, sexually abused his two grand-nieces aged nine and 11 respectively. He pleaded guilty to these offences. The irony is that even though he is a repeat offender, he will be getting a sentence without caning because he crossed the age of 50.

This state of affairs, with respect, is not desirable. I do not see why Parliament should presume in his favour, in favour of a repeat sex offender that he is not fit to be caned when he is clearly fit to commit those heinous acts. I also think it is not a coincidence that such middle-aged offenders tend to target younger victims. We need to ensure that such like-minded offenders will be strongly deterred from harming them.

In my respectful view, it is for this House to ensure that the caning provisions being passed as punishment for serious sexual offences continue to be fit for purpose. That is, whether a person can be caned or not should be determined by medical fitness, and not age. It is this House’s duty to deal with the unintended consequence of maintaining 50 as the cut-off age for such sexual offenders.

I welcome the hon Minister of State’s response to the points I make about caning.

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Murali Pillai

Member of Parliament, Bukit Batok SMC, Advisor to Bukit Batok SMC GROs.