Oct 27, 2007

Two Men and a Hypothetical Woman in a Public Place

Just three days ago, PAP MP Charles Chong suggested in Parliament that the laws in the Penal Code should be drafted in a more gender-neutral manner. A quote from the ST report:
"TAKING a swipe at what he considered anachronistic differentiations between the sexes in the Penal Code, MP Charles Chong (Pasir Ris-Punggol GRC) said the law seems to consider men 'less modest' than women.

Arguing for gender neutrality in the way statutes are framed, he noted that under criminal law, a woman's modesty can be insulted by words, sounds, gestures or objects, but a man does not seem to have modesty enough to be outraged, he said in a speech peppered with the glib humour that has become his trademark."
For example, if a man enters the ladies' changing room at a public swimming pool, strips himself naked, peeks into a cubicle where a woman is changing and then masturbates himself in front of her, this would be an offence under section 509:
Word or gesture intended to insult the modesty of a woman.
509. Whoever, intending to insult the modesty of any woman, utters any word, makes any sound or gesture, or exhibits any object, intending that such word or sound shall be heard, or that such gesture or object shall be seen by such woman, or intrudes upon the privacy of such woman, shall be punished with imprisonment for a term which may extend to one year, or with fine, or with both.
However, the victim must always be a woman. If the victim is a man, then there is no offence under Section 509.

Today, it so happens that the Straits Times reports such an incident - except that it takes place in the men's changing room and the victim is a man. Therefore Section 509 cannot apply:
ST Oct 26, 2007
Man fined for exposing himself in changing room

A 39-YEAR-OLD man was fined $500 on Friday for exposing himself to a swimming instructor at a male changing room.

Chur Kim Guan, unemployed, admitted to the obscene act in the changing room of the public swimming pool on April 23.

The 27-year-old instructor was whistling while changing into his swimming trunks when Chur peeped out of the cubicle he was in.

Shortly later, Chur stepped out and used his right hand to masturbate himself in front of the victim, who shouted at him and threatened to call the police.

Chur dashed out and was detained by a lifeguard who heard the commotion.

His lawyer said he committed the offence due to his mental illness. Since 2000, Chur had been in and out of the Institute of Mental Health after a relapse.
The ST article says that Chur was fined, but it does not specify which specific provision of the law was used. From the wording of the first sentence of the article - "fined for exposing himself to a swimming instructor at a male changing room" - my guess would be that the prosecution used section 27A of the Miscellaneous Offences (Public Order and Nuisance) Act:
Appearing nude in public or private place
27A. —(1) Any person who appears nude —

(a) in a public place; ....

shall be guilty of an offence and shall be liable on conviction to a fine not exceeding $2,000 or to imprisonment for a term not exceeding 3 months or to both.
The men's changing room of a public swimming pool is still a public place (any man can walk in, and in fact as far as I'm aware, it wouldn't be illegal for a woman to walk in either). In our case, section 27A does get the job done, in the sense that Chur the offender still gets convicted and receives a punishment.

However, the section 27A charge is conceptually unsatisfactory given the facts of the case. In fact it would be quite displeasing to those lawyers who desire as a general principle that the law reflects clearly what a person is being punished for.

After all, men are always walking around nude in men's changing rooms, in full view of one another, and no one ordinarily gets prosecuted for that.

In Chur's case, the offence really lies in the masturbatory display. The section 27A charge would have failed to reflect that, for section 27A merely talks about appearing nude in a public place. Section 509 of the Penal Code would have worked very well to capture the essence of the crime, except that section 509 doesn't work where the victim, as in our present case, is a man.

One significant point is that while the same act may theoretically be prosecuted as different offences, the sentencing options available differ from offence to offence. For example, all robbery is theft (but not all theft is robbery); and all rape is also outrage of modesty (but not all outrage of modesty is rape). Yet we wouldn't expect robbers to be punished merely as thieves, or rapists to be punished merely as molesters.

Of course, Chur is mentally ill, and a regular IMH patient - another important factor in the overall sentencing considerations.

13 comments:

Desmond Lim said...

Hahaha... I can think of why our laws are not gender neutral. It is because Singapore will never be in the forefront of change. We will be the followers. ;)

Anonymous said...

desmond lim:

of cos except when it comes to our own ministers deciding to pay themselves 3million plus plus a year

Anonymous said...

Mr Wang,

In your latest blog on Thio's speech you noted ....

See for yourself what hate speech means. Note how the term is legally defined under the laws of Ireland, Canada, Iceland, Sweden, Denmark and Norway - "... publicly making statements that threaten, ridicule or hold in contempt a group due to race, skin colour, national or ethnic origin, faith or sexual orientation" etc.

Then ask yourself whether Thio Li Ann's parliamentary speech would have constituted a criminal offence, if she had made that speech in any of those countries. Although I, as an ex-Deputy Public Prosecutor, have prosecuted crimes only in Singapore, and not in any of those other countries, I personally think that the chances would be ... high!


Avoiding the subject of whether Thio is right or wrong, I just want to talk about chances of being prosecuted in those country you listed on the general issues of "hate speech".

I note that in no where in the paragraph have you explicitly talk about the chances of being prosecuted. By prosecuted, I mean the chances of securing a successful conviction. So I am going to be careful by putting words in your mouth so to speak. However, let's use the issue of "chance of prosecution" as a point of debate.

As a once-DPP, you will be in a better position to say but my impression is that the law as it is practice in Singapore takes only into account the action (or literal interpretation of the law) and not so much the intent.

So, if we took Thio's case as a point of illustration nothing else, I suspect, securing a guilty verdict on the basis of the definition that you put forth will be quite straight forward in a Singapore court. After all, I note that in Singapore jurisdiction, it does not require the prosecution to argue intent. It seemed to me the Judge can infer intent on the part of the defendant and that's it. In other words, no need for the prosecution to proof whether a speech that may have seemingly hateful content, was indeed intentionally inflicted by the defendant to be in contempt.

However, I like to point out to you that in those countries that you noted, as a DPP or equivalent, it is the job of the prosecution to proof intent. In theory, Thio defence could be that she was stating what might be fact, albeit a slanted one. So it is not so easy to prosecute as you might think. Seemed to me DPP job in Singapore is quite easy.

PS: Since you close the comment on the relevant section, I had to resort to using this. Apologies for that. Just wanted to discuss about the topic of jurisprudence rather than the Thio controversy. It's just that when you raise comparison with other jurisdiction, I thought it useful opportunity to compare practices.

Mr Wang Says So said...

No, I think that you have probably misunderstood mens rea (the mental element constituting a crime) in general, in Singapore.

In general, Singapore's requirements of the proof of the requisite mens rea is no different from that of other countries generally.

What the requisite mens rea is, differs from offence to offence, and this is a matter of interpreting the relevant provisions.

For example, X causes Y's death; however, it is X's mental state, (or his intention), that determines whether he is guilty of, say, murder, or culpable homicide not amounting to murder, or voluntarily causing hurt; some other offence such as causing death by rash act; or causing death by negligent act.

Two things may have confused you:

1. a special category of "strict liability" offences (which are actually very limited in scope) - eg many types of driving offences. (As long as you have parked your car on a double yellow line, the offence is committed; it is not a legal defence to say that you did not notice the yellow line and therefore had not intentionally parked on the double yellow line)

2. Certain specific types of offences, the law may specifically prescribe that given certain facts X, Y, Z, the accused will be presumed to have a particular mens rea Z (eg if you have ___ amount of a certain drug, you will be presumed to have it for the purpose of trafficking, not personal consumption (a rebuttable presumption, however the burden shifts to the accused to rebut it); or if you, a driver, have ___ level of alcohol in your blood, you will be presumed to be drunk (an irrebuttable presumption - it is not a defence to say "I have Scottish blood, I can drink three bottles of whisky without getting even a little drunk).

All that said and done, the types of crimes I have described in (1) and (2) above are legally unusual and the mens reas aspects are not representative of crimes in general (whether in Singapore or other countries).

The 3rd point that may have confused you is evidential & procedural in nature - suffice it to say that the prosecution's case always needs to be proven beyond reasonable doubt, by the end of the trial, for a conviction to be handed; however, the prosecution's case need not be proven beyond reasonable doubt, by the close of the prosecution's case, for the accused to be asked to enter a defence.

---

It is correct to say that different countries may prescribe differing mens rea requirements for similar offences. However, since hate speech concerning sexual orientation is not explicitly illegal in Singapore, it isn't quite possible to do a comparative analysis of Singapore's situation vis-a-viz Denmark, Norway, Iceland, Canada etc.

Anonymous said...

Have you heard of this theory that men are stimulated visually while women are stimulated mentally?

Thats why men read pornography while women read romance novels. Men rush to RA movies while women cannot get enough of soap operas. :)

By logic, then women are less likely to rape or molest as compared to men. Thus the law assumes such a stand.

Of cos, there are always exceptions and I agree law should be gender neutral.

Philip

Anonymous said...

Mr Wang,

Thanks for taking the trouble to clarify.

Yes, I am fully aware of your points (1), (2) and (3). May not have put it so succinctly in my last posting.

Let me rephrase my query. The impression I am getting in Singapore law is that "strict liability" seemed to be very prevalent in its legal statutes whether in written form or practice. Thus it seemed to me there is very few cases in Singapore have any scope for mens rea defence, hence the job of DPP seemed to very straightforward.

Is my impression misplaced?

Anonymous said...

Apologies Mr Wang, in my last posting, I forgot to add, in English law at least, when in comes to imposing strict liability the guidelines can be found in the following case law:

In Gammon (Hong Kong) Ltd v Attorney-General for Hong Kong [1984] 2 All ER 503, Lord
Scarman laid down the criteria upon which a court should decide whether or not it is
appropriate to impose strict liability:
(1) there is a presumption of law that mens rea is required before a person can be held guilty of a
criminal offence;
(2) the presumption is particularly strong where the offence is “truly criminal” in character;
(3) the presumption applies to statutory offences, and can be displaced only if this is clearly or by necessary
implication the effect of the statute;
(4) the only situation in which the presumption can be displaced is where the statute is concerned with an
issue of social concern;
(5) even where a statute is concerned with such an issue, the presumption of mens rea stands unless it can
be shown that the creation of strict liability will be effective to promote the objects of the statute by
encouraging greater vigilance to prevent the commission of the prohibited act.


Do the Singapore courts apply the above case law as precedence?

PS: I am asking these questions out of general curiosity not specifically to debate the Thio's or your "Two men and..." posting. Hope you don't mind.

Mr Wang Says So said...

"The impression I am getting in Singapore law is that "strict liability" seemed to be very prevalent in its legal statutes whether in written form or practice."

Not really. For example, offhand, I cannot think of a single offence in the Penal Code which is a strict liability offence.

"Thus it seemed to me there is very few cases in Singapore have any scope for mens rea defence, hence the job of DPP seemed to very straightforward."

To be precise, we don't normally speak of mens rea defences. That's because mens rea is usually an element to be proven by the prosecution, rather than to be raised as a legal defence by the accused.

But certainly in practice as well as in theory, the prosecution would have to prove mens rea. For example, in every type of cheating or theft offence, it would be necessary to show that the accused had dishonest intentions (as opposed to, say, taking money by mistake). In every type of VCH offence, it has to be shown that the accused intended to cause hurt (as opposed to accidentally hurting someone).

As a matter of fact, the prosecution already considers men rea at the point of deciding whether to charge the person or not, and if so, what to charge him for. It's an inevitable part of the process, because the differentiation between types of offences.

Mr Wang Says So said...

Frankly, the Gammon case will only ever be relevant where there has been lousy legislative drafting, leaving the relevant provision open to argument as to whether a particular offence is "strict liability" or not.

With proper legislative drafting, it would be clear from the wording of the provision whether the offence is supposed to be strict liability or not.

Eg if you wanted to make an offence clearly "strict liability", all you have to do is describe the offence, then add another sentence and say, "It shall not be a defence for the accused to prove that [he did not know X]/[he had not intended Y]" etc.

Anonymous said...

Mr Wang,

You indicate:

Not really. For example, offhand, I cannot think of a single offence in the Penal Code which is a strict liability offence.

Don't take what I am going to say a challenge. Just need some clarification on what your statement means.

Anyway, off my head would you say Singapore laws pertaining to:

a) Public assemblies;

b) Drug trafficking;

c) Public speaking;

falls under strict liability offence?

Are these laws not considered part of Penal Code?

Mr Wang Says So said...

By "public assemblies", you might be referring to the offence of unlawful assembly. By "public speaking", you're probably referring to the offence of providing public entertainment without a licence ("public entertainment" is defined widely under the relevant legislation and would cover, say, giving a public speech on political issues).

And if that is what you mean, then yes, unlawful assembly falls under the Penal Code, but no, drug trafficking does not fall under the Penal Code but under the Misuse of Drugs Act, and no, the public entertainment offence does not fall under the Penal Code but under the Public Entertainments and Meetings Act.

Unlawful assembly is most definitely not a strict liability offence; in fact, the prosecution must prove mens rea for every member of the group being charged; and further that they had a similar mens rea ("common object"), being a common intention to do one of five possible things ((a) to (e) below); and in addition the prosecution must demonstrate that each member had intentionally joined the unlawful assembly, and must have been aware of facts that made such assembly illegal.

141. An assembly of 5 or more persons is designated an “unlawful assembly”, if the common object of the persons composing that assembly is —

(a) to overawe by criminal force, or show of criminal force, the Legislative or Executive Government, or any public servant in the exercise of the lawful power of such public servant;

(b) to resist the execution of any law, or of any legal process;

(c) to commit any mischief or criminal trespass, or other offence;

(d) by means of criminal force, or show of criminal force, to any person, to take or obtain possession of any property, or to deprive any person of the enjoyment of a right of way, or of the use of water or other incorporeal right of which he is in possession or enjoyment, or to enforce any right or supposed right; or

(e) by means of criminal force, or show of criminal force, to compel any person to do what he is not legally bound to do, or to omit to do what he is legally entitled to do.

Explanation.
An assembly which was not unlawful when it assembled may subsequently become an unlawful assembly.

Being a member of an unlawful assembly.
142. Whoever, being aware of facts which render any assembly an unlawful assembly, intentionally joins that assembly, or continues in it, is said to be a member of an unlawful assembly.


Drug trafficking most definitely is NOT a strict liability offence. (As mentioned earlier, you may be confusing strict liability with the legal presumptions of certain mental states). In fact, in practice, just about every drug trafficking trial case revolves around mens rea

(eg the accused's defence will be that he did not know what he was carrying was illegal drugs; OR

he had no intention of trafficking the drugs, but merely had them for the purpose of personal consumption).

The public entertainment offence is also not considered a strict liability offence, although the nature of the offence is that it would be in quite unusual circumstances that one may accidentally or unintentionally provide "public entertainment" (as defined in the Act). Hypothetically, for example, if you were invited to speak at a certain venue, and you mistakenly believed that this was a private function only for invited guests (when in fact it was open to the public), and you went ahead to speak at the event without knowledge of this public element and without a license, then you would not be guilty of committing the offence.

Anonymous said...

Mr Wang thanks for taking the trouble to explain. Useful insights.

tVotA said...

[QUOTE]Thats why men read pornography while women read romance novels. Men rush to RA movies while women cannot get enough of soap operas. :)[/QUOTE]

Saddened immensely, I am. I read romance novels regularly - does it make me any less a man, or any more a woman?

As an aside, since Thio Li Ann made her speech in Parliament, it was protected under absolute privilege. It's not for the PP to prosecute her criminally; unfortunately she's unelected so she can't get kicked out either. So who's fault is it really? What party came up with the hare-brained NMP scheme?

As for the gender-neutrality argument - let's look at why social inertia is so strong. Consider it from the perspective of the Singaporean woman: why would she want such a thing, or why would she care at all? It would only curtail her rights. The ever pragmatic Singaporean woman would obviously want to maintain the status quo. If she didn't have those unfair privileges in the first place, she probably wouldn't be agitating very much for them, but since they're already there, why change them?

From the perspective of a Singaporean man: agitation will only make him appear less of a gentleman. Furthermore men in Singapore, though legally discriminated against in several ways, are nowhere near as oppressed as women in Victorian times. Where then are the grounds for dissent?

This is one of those few areas where direction from parliamentarians is in fact necessary for society to advance, for it is rather difficult for either ordinary men or women to fight for gender neutral laws. The justification is simply not there. Unfortunately our parliament never puts on it's paternalistic hat for the purposes of societal advancement; they only do that when passing such bills as the raising of GST.

What, then, is the solution? Electorate, decide ye the fate of our country. We can still be a great land yet.