The Development of Criminal Law and Criminal Justice

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Historical background

Opening of the 1952 Assizes. In many English colonies, including Singapore, the Assizes were the principle criminal courts. The opening of the Assizes was a grand affair with guards-of-honour and a procession of all the judges. It is the precursor to our modern-day Opening of the Legal Year. (Source: Ministry of Information and the Arts Collection, Courtesy of National Archives of Singapore)

The Second Charter of Justice, which was promulgated in 1826 introduced English law (including the English criminal law) into Singapore (subject to the qualifications of suitability and modification). This was used until 1870, when the Penal Code was introduced. This code was almost an exact copy of the original code enacted in India in 1860, and remained the primary piece of criminal legislation for more than a century.

Sir Peter Benson Maxwell (1816-1893) arrived in the Straits to become Recorder of Penang in 1866. In 1867, he succeeded Sir Richard McCausland as Recorder of Singapore and then became the first Chief Justice of the Straits Settlements. (Source: Singapore Academy of Law legal heritage collection)

The Penal Code

Initially, when plans were made to extend the Indian Penal Code to the Straits Settlements, an actual Order to that effect was made by the Governor of the Straits Settlements. However, the (local) Penal Code Suspension Act of 1867 was passed cancelling the Governor’s Order. Hence when the Penal Code was ultimately enacted in 1871, it was a local re-enactment of the Indian Penal Code. In the early stages there was a sharp division of opinion within the Straits Settlements Bar about the desirability of the Indian Penal Code. Chief Justice Sir Peter Benson Maxwell and judge Sir William Hackett were opposed to the introduction of the Penal Code. They were in favour of English law although ‘they were not indisposed to accept the Indian Penal Code, provided it was clearly the wish of the community that it should be introduced’.[1] The Attorney–General, on the other hand, favoured the introduction of the Code as it was more efficient than the English criminal law.

The saga of the Penal Code finally came to an end when the Code became law in the form of Ordinance No. IV of 1871 incorporating the amendment Ordinance No. III of 1872.

The Criminal Procedure Code

The first local legislation dealing exclusively with criminal procedure was the Criminal Procedure Ordinance of 1890. After the Ordinance, there were other developments, but the more comprehensive code that was to form the foundation of the present Criminal Procedure Code was passed only in 1900. The Code had, in its essential form, already been drafted between 1873 and 1900 and was mainly based on the Indian Code of Criminal Procedure, with modifications to accommodate local circumstances. The main aim of the Code was to simply the procedure of Criminal Law.

It is to be noted that while the Criminal Procedure Code was originally brought into existence in 1892, the Code of 1892 was never brought into operation. Indeed, there was a delay of some eight years before the Code came into effect in 1900, and even then as a brand new re-enactment. One of the reasons being that the original Code was taken from the Indian Criminal Procedure Code which was said by many to be adapted to a different state of society to which existed in Singapore and Penang. There were also other reasons, for example, the simplification of procedure, the powers of the Public Prosecutor, as well as financial considerations. In the final analysis, the Attorney–General, W. R. Collyer appeared to suggest that the re-enactment in 1900 was more a matter of expedience than anything else.

There was a further major re-enactment in 1910 but no fundamental change was effected in either the Code’s structure or substance. The next major re-enactment was in 1955 and this version constitutes, with some subsequent amendments, the basic structure of the Code presently in operation.

The Evidence Act

Like both the local Penal and Criminal Procedure Codes, the Straits Settlements Evidence Ordinance was modelled on its Indian counterpart. The Indian Evidence Act was itself enacted in 1872, and was drafted by Sir James Fitzjames Stephen who completely recast the original bill prepared by the Indian Law Commissioners. The Evidence Act applies to both criminal and civil cases. The purpose of enacting the Evidence Ordinance was to simplify the local law of evidence, with the Indian Act being adopted for its relative efficiency.

Other major criminal laws in Singapore

The above three major pieces of legislation were enacted when Singapore was part of the Straits Settlements. More ‘specialised’ criminal legislation was subsequently promulgated. We now briefly consider some of these.

The Prevention of Corruption Act

The Prevention of Corruption Act was the main plank in the Singapore Government’s comprehensive battle against corruption. The provisions of this Act, which was first promulgated in 1960, were extremely stringent. They were also enforced equally strictly by the Corrupt Practices Investigation Bureau and in more recent times by the Commercial Affairs Department.

To provide more ammunition, Parliament enacted the Corruption (Confiscation of Benefits) Act in 1989. Up till then, the Prevention of Corruption Act had only provided for the payment of a penalty equal to the amount of gratification received or the value of the gratification. It did not deal with situations where it could not be proved that the accused’s assets were actually derived from corruption. Under the new Act, a presumption is made that a person derived benefits from corruption if that person holds assets disproportionate to his or her known sources of income. The onus of proof to provide a satisfactory explanation of the source of these assets falls on the offender. Similar provisions are now to be found in the Corruption, Drug–Trafficking and Other Serious Crimes (Confiscation of Benefits) Act.

The Misuse of Drugs Act

The Drug Trafficking (Confiscation of Benefits) Act empowers the authorities to confiscate assets of drug traffickers derived from drug trafficking. Originally enacted in 1993, the Act was amended in 1999 to extend its ambit to encompass the benefits of other serious offences as well. It should be noted that these (and other) provisions are now found in the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act.

The Criminal Law (Temporary Provisions) Act

This legislation was promulgated to deal with the Chinese secret societies and is discussed later.

The Arms Offences Act

The Arms Offences Act, enacted in 1973, regulates firearm offences. Any person who uses or attempts to use arms to commit scheduled offences, including rioting, kidnapping and housebreaking, is liable to face execution.

The Vandalism Act

The Vandalism Act provides for severe penalties, including mandatory caning on conviction. The Act illustrates the central rationale of deterrence that underlies virtually all Singapore’s criminal law legislation.

The Kidnapping Act

The present Act provides for either life imprisonment (with liability for caning) or the death penalty for kidnapping.

The Computer Misuse Act

New offences were created under this Act to secure computers against unauthorised access or modification of their contents and for crimes committed using computers. The Act was amended in 1998 to cover other types of computer-related offences. The offences created by this Act have extra-territorial effect.

Major developments in penal history

Outram Prison which was demolished in 1968. (Courtesy of National Archives of Singapore)
The gates of Changi Prison stand open after World War Two, when it was used to house prisoners of war. (Source: Australian War Memorial (019321))

The history of prisons in Singapore began with the arrival in 1825 of some 200 convicts from India who were sentenced to ‘transportation’. They were housed in atap-sheds in the Bras Basah Road/Stamford Road area.[2]

Singapore’s first proper prison was built in 1847 at Pearl’s Hill. An extension was built in 1882 and the complex was administered as the Outram Prison until 1968.

In 1873, ‘transmarine’ convicts stopped arriving and a new prison system was introduced, described as ‘penal labour, separation, and classification of convicts, penal diet, and remission for good marks’.[3]

Changi Prison was built in 1936 with a capacity for 600 inmates. In 1994, Changi Women’s Prison and Drug Rehabilitation Centre opened. In 2000, the old Changi Prison was demolished to make way for the new Changi Prison Complex. The 180-metre stretch of prison wall facing Upper Changi Road North, including two corner turrets and the main prison gate was preserved.

In 2004, Changi Prison Complex’s Cluster A opened. It consists of blocks, each containing three Housing Units which are self-sufficient units that include accommodation as well as support facilities such as workshops, dining halls, counselling rooms and an exercise yard. Inmates of Changi and Jalan Awan Prisons as well as Moon Crescent RTC were transferred to the cluster.

In 2010, Cluster B opened its doors. Only Kaki Bukit Centre, Admiralty West Prison and Selarang Park Centre remain outside Changi.

Presently, the new Changi Prison Complex, comprising more than 10 prison institutions, houses all of the country’s inmates, including those who are serving long sentences and those who have been sentenced to death. Judicial corporal punishment by caning is also carried out at the Changi Prison Complex.

Penal philosophy in Singapore

Until recently, most prison systems adopted a punitive regime based on hard labour and spartan living conditions, directed solely towards deterrence. This was acknowledged as being ineffective in decreasing recidivism. This rethink of penal philosophy was acknowledged by the 1948 Prison Commission and the 1960 Prisons Inquiry Commission.

However, the history of penal philosophy in Singapore is not a consistent one. The list of major developments, considered below, is unfortunately not exhaustive.

Penal servitude, rigorous and simple imprisonment abolished

To bring Singapore’s system of penal administration in line with modern practice, the Criminal Justice (Punishment-Amendment) Ordinance abolished sentences of penal servitude, rigorous imprisonment and simple imprisonment. The single sentence of imprisonment was substituted in their place. Once the Court has sentenced an offender to detention in prison, the matter of how he should be treated during the term of sentence is left to the prison officers.

Probation

The 1948 Prison Commission proposed that probation be widely used to keep first and minor offenders out of prison. They urged the extension of probation to offenders of all ages instead of limiting it to those below 16 years old as proposed in the then draft Children and Young Persons Bill. This extension was approved and the Probation of Offenders Ordinance finally came into being in 1951, modelled on the established United Kingdom system.

Hence, non-institutional rehabilitation of the offender was introduced in Singapore. It is a highly flexible instrument, as can be seen by the incorporation of a requirement to perform a certain number of hours of community service as part of the probation order since December 1996.

Reformative Training

Federal Minister of Welfare Services Tuan Haji Abdul Hamid Khan visits Bedok Reformative Training Centre in 1965. (Ministry of Information and the Arts Collection, Courtesy of National Archives of Singapore)

It was of concern to the 1948 Prison Commission that there was no alternative sentencing option for those between 16 and 21 years except prison. Its recommendation as to the setting up of a Probation Service is mentioned above. In addition the Commission considered the setting up of an exclusive institution, modelled on the Borstal system in the UK, for the training of offenders between 16 and 21 years of age.

However in view of the objections of the judiciary and the Police Force regarding the risk of these offenders absconding, recommendation was only made for the segregation and classification of these young offenders.

This issue was re-examined in 1951 by another Prison Commission, which found ‘the lack of any institution of this kind ... a very evident gap in the methods of treatment provided for young offenders in the Colony’.[4] Amendments to the legislation were finally made in 1956 to enable young offenders between 16 and 21 years to be received into reformative training centres, as the system came to be known locally. By 1974, the Prisons Re-organisation Committee recommended that only male offenders between 16 and 21 years of age who had been sentenced to less than three years’ imprisonment and met certain eligibility requirements should be sent for reformative training. All those who did not qualify should instead be accommodated in the Young Offenders Section in prison. The first batch of reformative trainees was received in the old Remand Prison at Pearl’s Hill. They were later transferred to Changi Camp in 1958. From 1961 to 1998, they were housed at Bedok Reformative Training Centre. In May 1998 the centre moved to the former Moon Cresent 2 premises and was renamed the Changi Reformative Training Centre.

The Pulau Senang Experiment

Pulau Senang, 1961. (Ministry of Information and the Arts Collection, Courtesy of National Archives of Singapore)

The number of secret society members detained for criminal activities under the Criminal Law (Temporary Provisions) Ordinance increased dramatically in the 1950s and 1960s. Problems with overcrowding, discipline, and segregation and classification of prisoners mounted. Little was done to rehabilitate the prisoners. Gang clashes and riots occurred within the prison walls and living conditions in the prison deteriorated.

The aftermath of the Pulau Senang riots, 1963.( Ministry of Information and the Arts Collection, Courtesy of National Archives of Singapore)

Three members of the 1960 Prison Commission formed an ad hoc committee to deal specifically with the rehabilitation of the Criminal Law detainees. They recommended a progressive rehabilitation scheme, with four distinct stages.

In the first stage they would be detained in Changi prison for a year. In the second stage rehabilitation would begin on the island of Pulau Senang. In the third stage, the detainees would be transferred to the mainland to live in open security camps and employed in construction projects with the Singapore Work Brigade. In the final stage, they would be placed under an Aftercare Officer or police supervision.

These recommendations were accepted and the first batch of 51 detainees arrived with several prison staff on Pulau Senang on 1 June 1960. By June 1963, 394 detainees had been rehabilitated successfully. On 12 July 1963 the detainees rioted, the settlement was burnt down and four officers killed. Eventually 59 detainees were brought to trial and 18 of them sentenced to death for murder. To date, there is no agreement as to why this experiment failed.

Work, vocational training and education in prisons

The 1948 Prison Commission recognised the important rehabilitative role of prison industries in occupying the greater proportion of a prisoner’s working day. In addition it recommended that a scheme of payment for work be implemented.

In 1965, a separate Prisons Industries Division within the Prisons Department was created. By 1974 this was found to be inadequate and The Prisons Re-organisation Committee 1974 therefore suggested the setting up of a statutory board. The Singapore Corporation of Rehabilitative Enterprises SCORE was set up by an Act of Parliament in 1975.

Presently, SCORE workshops in the prisons include, amongst others, the largest laundry in Singapore and a bakery which has achieved ISO9002 certification. Private firms have also set up workshops. Vocational courses available at various institutions include National Trade Certificate (NTC-3) Food Production, amongst others. In addition, SCORE’s Job Placement Unit assists prisoners and recovering addicts to find employment on their release.

Due to the findings of the 1974 Prisons Re-organisation Committee revisions were made to the payments and to differentiate skilled from unskilled prisoners. In 1987, the role of SCORE was expanded to include the provision of aftercare services as well.

In terms of academic education, a centralised ‘prison school’ was set up on 3 January 2000 at Kaki Bukit Centre to streamline the prisons’ education resources. General Certificate of Education, Worker Improvement through Secondary Education and vocational training courses are provided at this centre. In 2011, the Prison School moved to the former Tanah Merah Prison.

Conclusion

From this short account of Singapore’s penal history, we can immediately see that both the physical structure of the prisons and their underlying philosophy have changed over the years. A balance fairly struck between prisons as places of punishment and places for rehabilitation will go a long way towards giving the maximum number of prisoners the chance to rebuild their lives.

The decline and fall of the jury system

Singapore never had jury trial for civil cases. There was provision for jury trial for more serious criminal cases right from the outset of the founding of the modern Singapore legal system in the Second Charter of Justice of 1826. In 1960, however, jury trial in Singapore was restricted to capital offences. And, in 1970, the jury system was abolished altogether.

Some of the reasons cited for abolishing the system were its unreliability, miscarriages of justice, and the Chief Justice and judges’ opposition to it. In addition, other countries had been doing well without the jury system.

The Criminal Procedure Code (Amendment) Bill 1969 was in fact referred to a Select Committee where a vast variety of views were expressed. Of special interest were the views of the jurors themselves. What emerged was how all but one of the jurors who gave evidence before the Select Committee were of the view that laypersons of the working class (like themselves) were not competent to sit on a jury as trier of fact. A veteran court reporter, T.F. Hwang pointed out that superstition played a role: for instance one did not expect a pregnant woman to sentence a person to death while she was bearing a child in her womb.

There was nevertheless some heated debate during the Select Committee proceedings, particularly between Lee Kuan Yew and David Marshall but despite this, the 1969 Bill was passed. The Bill was read a third time and passed as the Criminal Procedure Code (Amendment) Act 1969 which came into force on 5 January 1970.

The two–judge system which replaced trial by jury was itself repealed in 1992. Capital cases are now heard by a single High Court judge, who is assisted in his task by two public prosecutors and two defence counsels.

Criminal law in context

A secret society initiation ceremony. (Courtesy of National Archives of Singapore)

The war against the Chinese secret societies

The Chinese secret societies were literally a law unto themselves. They were involved in criminal practices and illegal activities including but not limited to robberies, gambling and blackmailing brothels. Secret societies exerted virtually absolute control over their members, with no recourse being allowed to the British courts of law. By the 1950s the societies were intimidating voters to vote for the candidate they ‘supported’ whilst simultaneously preventing electors likely to favour another candidate from voting altogether. They caused massive law and order problems.

There was much legislative indecision (for seven decades) before the Societies Ordinance was finally passed in 1889 in order to suppress them. There was division of opinion in the local Legislative Council surrounding the passage of the Ordinance. There were arguments for the retention of such societies from the perspective of cultural tolerance, and the argument that the societies would simply go underground if suppressed. Unfortunately the Societies Ordinance 1889 did not solve the problem posed by the Chinese secret societies.

It has been argued that whilst the principle of suppression was entirely correct, its apparent failure during the 1890-1959 period was due to faulty implementation. It was also argued that although it had taken approximately seven decades to put the policy of suppression into legislative form, it was a half measure. One further step was necessary: the actual incarceration or detention of suspected secret society members without trial.

In 1958 (and just prior to the assumption of political power by the People’s Action Party in 1959) the concept of detention without trial of suspected secret society members was finally implemented. This concept is presently embodied within the Criminal Law (Temporary Provisions) Act. Although this law has not escaped criticism, it does in fact have built-in safeguards. The fact remains that secret societies, whilst remaining an irritation of sorts, have largely been routed. Industrialisation and modernisation were some of the other factors that contributed to the rout of the secret societies.

The war against drug trafficking

During the colonial period, the colonial government was interested only in the economic benefits to be gained from the opium farms and paid little attention to their effects on opium addicts. In contrast the modern law against drug trafficking is probably the most stringent in the world. It began with the Misuse of Drugs Act, which was first enacted in 1973.

In 1975, the death penalty was included in the arsenal of punishments for drug trafficking under the Misuse of Drugs (Amendment) Act. Further amendments have subsequently been introduced to increase the types of drugs that fall within the ambit of the Act. Revisions to the mandatory death penalty, with regard to drug traffickers were announced in 2012. Where an accused is convicted of trafficking, importing or exporting drugs above the quantity that attracts the mandatory death penalty, the Courts would have the discretion to sentence him to death or to life imprisonment (with caning in certain circumstances) if the following two conditions are met:

(i) the accused is found to be only a drug courier, and

(ii) either the Public Prosecutor certifies that the accused has substantively assisted the Central Narcotics Bureau to disrupt drug trafficking activities within or outside Singapore, or the accused proves that he was suffering from such abnormality of mind that it substantially impaired his mental responsibility for committing the offence.

Conclusion

A simple account of the development of criminal law and criminal justice in Singapore has been provided here.

Singapore continues to be relatively crime-free and this is due not only to the small size of the country but also to a constant updating of the criminal laws in the light of changing circumstances.

Other challenges will no doubt present themselves to the Singapore legal system in general and its criminal justice system in particular. Cybercrime is one such area and Singapore has already begun to address issues in this sphere: the Computer Misuse Act and the Mutual Assistance (Criminal Matters) Act are examples of steps that have already been taken in this direction.

(Write up adapted from The Development of Criminal Law and Criminal Justice, Essays in Singapore Legal History)

References

  1. See Phang, ‘Of Codes and Ideology’ id. at pp. 60
  2. See Walter Makepeace, Gilbert E. Brook & Roland St. J Braddell, eds., One Hundred Years of Singapore Vol. 1 (Singapore: John Murray, 1921) at pp. 282-283.
  3. See Walter Makepeace, Gilbert E. Brook & Roland St. J Braddell, eds., One Hundred Years of Singapore Vol. 1 (Singapore: John Murray, 1921) at pp. 288.
  4. Report of the Singapore Prison Enquiry Committee 1951 (Singapore: Printed at the Government Printing Office, 1952) at para.4

Sources

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