SMU Classification: Restricted

Professor Chan Wing Cheong

Email: wcchan@[Link]

LAW 103: CRIMINAL LAW

Semester 1, AY 2022/2023

(2) The Penal Code of Singapore

Learning objectives

 Assess the advantages and disadvantages of codification of the criminal law as compared
to a jurisdiction such as England where the criminal law is found in a mixture of statutes
and (predominately) common law
 Understand the origins of the Penal Code 1871 in Singapore
 Understand the proper approach to interpreting provisions of the Penal Code 1871,
including the use of illustrations and explanations found in the Code

Readings

 Interpretation Act 1965: ss 7A, 9A

 YMC: chap 1

Cases to read

 PP v Kwan Klong Weng [1997] 1 SLR(R) 316

 PP v Low Kok Heng [2007] 4 SLR(R) 183

* I have placed these 2 cases in eLearn. You are expected to access all cases in future by
yourselves.

Seminar questions

1. Singapore has a Penal “Code”. What does that mean and how different is it from a
jurisdiction where the criminal law is not codified (such as England)?

The Penal Code is an Act of Parliament that defines many common offences.

The Penal Code generally governs questions of scope (abetment, criminal conspiracy and
attempt) and of the conditions of liability (especially the various defences).
Sections 6 and 40(2) of the Penal Code

The Penal Code is different from a jurisdiction where the criminal law is not codified in the
way that it is accessible, easily understood by the masses, and specific.

A codified jurisdiction has written statues. Judges cannot come up with an offense. A
jurisdiction that is not codified has both statues and judge-made offenses.

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In a codified system, the law is made up by legislators who are voted in by the masses. They
should represent and pander to the views of the people. The legislature has to debate and have
active conversation before deciding on what legislation to enact.
V
In a jurisdiction that is not codified, the law is decided by the judges, who might not pander
to the views and opinions of the people. The law is dependent on isolated previous cases.

Changes in legislation:
(The Penal Code is efficient and has worked for many years, as the legislature did future-
proof and anticipated future interpretations of the legislation (encompasses potential
changes).)
When stated in a statue, wording and how a term is drafted matters
In a codified system: The legislators bring up these changes in the Parliament, and the
Parliament will debate and vet before reaching a conclusion and eventually re-writing the
law. This process takes a substantial amount of time, but more defined as there is a system of
checks-and-balances.

In a non-codified system (common law): Judges decide what case law is to be used in the
current case. This process is quicker, but less defined.

This is unlike the latter, which may be obscure, over-technical, and inaccessible. It might also
reflect the peculiarities of English legal history. At best, English criminal law was probably
only understood by the legal elite. At worst, as reformists such as Bentham and Romilly
argued, it was cruel, inefficient and haphazard.

2. What are the benefits of having a Code?

The Code is intended to supplant and not to supplement the common law. It aims to provide a
comprehensive statement of the range, scope and conditions of criminal liability.

 Comprehensible. The law should be easily understood by ordinary people who may
become subject to its offences and punishments.
 Accessible. The law is more accessible if it is contained in a written Code, and not
buried in previously decided cases which are the preserve of legal experts. One of the
ways the Code promotes comprehensibility and accessibility is the use of
‘explanations’ and ‘illustrations’, thus making it more easily understood. (However,
the Code might still use language that is not easily understood by the people.
Moreover, in Singapore, while the Penal Code contains all the defences and
principles, it is not the only document that contains offenses – e.g. Women’s Charter,
Misuse of Drugs.)
 Certain. The law must be certain, The Code must therefore be as clear, and precise as
possible. It must not be loosely or vaguely worded. The law is set down in the statue
and not decided by judges.
 More consistency. In a jurisdiction that is not codified, the judges may have
disagreement in how they regard laws. In a codified jurisdiction, the legislature and
government can go through “legality tests” before deciding on a legislation. The
codified system is more predictable as laws have already been enacted before they are
used.
 Comprehensive. The law should cover as much ground as possible.

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 Democratic. The source of the law will be determined by legislators, who are decided
in by the vote of the people. (V In a common law, the law-making is decided by the
judges, who may not represent the opinions and mind of the people – as they come
from different backgrounds and do not have interactions with the people, thus leading
different perspectives of the law as compared to the people. However, this can be
argued that judges are not affected by the opinion of the majority. They can represent
a objective view of the law and can represent the views of the minority.) Macaulay
believed that the power to make penal laws should lie with an elected legislature, not
with the courts. And the legislature should not abdicate its responsibility, either
directly (not enacting laws) or indirectly (enacting vague laws that hinge on judicial
interpretation). Macaulay even argued, in a proposal which was not adopted, that the
courts should refer any disputed issues to the legislature for correction.
 Precise. Statues are laid out in a more succinct manner.

3. Discuss PP v Kwan Kwong Weng. What does it show about the effect of having a Penal
Code?
In a codified system, there has to be an interpretation of the English criminal law, not a re-
explanation (re-codification) of it. Thus even if the system is codified, a further interpretation
of the words in the Code might still apply – this could lead to ambiguity and further
disagreement among the legislature.

The Penal Code ensures that concessions made by the Prosecution are rightfully given on an
accurate view of the law. It ensures that the understanding of the law is certain,
comprehensive, and democratic. It also provides the definition of crimes, which can aid in
ensuring that the right punishment or lack thereof is given to the accused.

The High Court decided that “carnal intercourse” only applied to the offences of sodomy and
bestiality, which was decided in the English criminal law at that time.

The use of the words “carnal intercourse against the order of nature” in s 377 clearly
indicated that the provision was intended to cover more than just the offences of sodomy
and bestiality.

[17]: … the words “carnal intercourse against the order of nature” used by the framers of
the Indian Penal Code clearly indicates that they intended to cover more than just the
offences of sodomy and bestiality by this one all-embracing provision concerning
“unnatural offences” in the Code.
[31]: Apart from when couples engage in consensual sexual intercourse willingly indulge
in fellatio and cunnilingus as a stimulant to their respective sexual urges, in every other
instance, the act of fellatio between a man and a woman will be carnal intercourse against
the order of nature and punishable under s 377 of the Penal Code.
[32]: When fellatio is a substitute for natural sexual intercourse between a man and a
woman capable in law of giving consent, the woman’s consent to perform the act of fellatio
cannot save it from being an offence under s 377 of the Penal Code.

4. Give an example of an illustration and an explanation found in the Penal Code 1871.
What function do they serve? What does s 7A Interpretation Act 1965 tell us?

Example of an illustration:

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6. (b) A, a police officer, without warrant, apprehends Z, who has committed murder. Here A
is not guilty of the offence of wrongful confinement, for he was bound by law to apprehend
Z, and therefore the case falls within the general exception which provides that “nothing is an
offence which is done by a person who is bound by law to do it”.

Function of an illustration:
Illustrations show how the law would apply to different fact situations.
- These illustrations will greatly facilitate the understanding of the law.
- Illustrations is an example given by the legislature to the judge enforcing the law. It is
a imaginary scenario in which the legislation will apply.
- Illustrations are not supposed to be inconsistent, as it is supposed to be vetted by the
legislature.
- The illustrations will lead the mind of the student through the same steps by which the
minds of those who framed the law proceeded, and may sometimes uncover a phrase
which may have struck him as uncouth, or a distinction which he may have thought
idle, was deliberately adopted for the purpose of including or excluding a large class
of important cases.

Example of an explanation:
53. Explanation.—Caning shall be with a rattan.

Function of an explanation:
Explanations expand on the meaning of words and phrases.
- Explanations are generally intended to clarify the substantive provision.
- They aim to avoid confusion and to avert arguments as to the scope of the law.
- Explanations thus form part of the law.

Examples and illustrations

7A. Where an Act includes an example or illustration of the operation of a provision —
(a) the example or illustration is not to be taken as exhaustive; and
(b) if the example or illustration is inconsistent with the provision, the provision
prevails.

5. What is the approach taken if any ambiguity is encountered in the Penal Code 1871 (or
any other statute)? Use PP v Low Kok Heng to illustrate your explanation. See also s 9A
Interpretation Act 1965. (The proper approach has been elaborated by the SGCA in Tan
Cheng Bock v Attorney-General [2017] 2 SLR 850, see the summary at [54]).

Where there is ambiguity in the wording, a number of principles come into play.
1. Firstly, the Code itself should be construed in accordance with its own structure and
principles, not by reference to the pre-existing common law or to current English law.
s 9A of the Interpretation Act mandates that a purposive approach be adopted in the
construction of all statutory provisions, and allows extrinsic material to be referred to, even
where, on a plain reading, the words of a statute are clear and unambiguous. The purposive
approach takes precedence over all other common law principles of interpretation.

2. Secondly, other legislation that creates criminal offences should be construed by

reference to its structure and language in conjunction with reference to the general
principles contained in the Code.
The courts should confine themselves to interpreting statutory provisions purposively with

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the aid of extrinsic material within the parameters set by the literal text of the provision and
assiduously guard against inadvertently re-writing legislation.
The general position in Singapore with respect to the construction of written law should be
the same whether the provision is a penal or civil one.

Purposive interpretation of written law and use of extrinsic materials

9A.—
(1) In the interpretation of a provision of a written law, an interpretation that would
promote the purpose or object underlying the written law (whether that purpose or
object is expressly stated in the written law or not) is to be preferred to an
interpretation that would not promote that purpose or object.
(2) Subject to subsection (4), in the interpretation of a provision of a written law, if any
material not forming part of the written law is capable of assisting in the
ascertainment of the meaning of the provision, consideration may be given to that
material —
a) to confirm that the meaning of the provision is the ordinary meaning conveyed
by the text of the provision taking into account its context in the written law and
the purpose or object underlying the written law; or
b) to ascertain the meaning of the provision when —
(i) the provision is ambiguous or obscure; or
(ii) the ordinary meaning conveyed by the text of the provision taking into
account its context in the written law and the purpose or object
underlying the written law leads to a result that is manifestly absurd or
unreasonable.
(3) Without limiting subsection (2), the material that may be considered in accordance
with that subsection in the interpretation of a provision of a written law includes —
a) all matters not forming part of the written law that are set out in the document
containing the text of the written law as printed by the Government Printer;
b) any explanatory statement relating to the Bill containing the provision;
c) the speech made in Parliament by a Minister on the occasion of the moving by
that Minister of a motion that the Bill containing the provision be read a second
time in Parliament;
d) any relevant material in any official record of debates in Parliament;
e) any treaty or other international agreement that is referred to in the written law;
and
f) any document that is declared by the written law to be a relevant document for
the purposes of this section.
(4) In determining whether consideration should be given to any material in accordance
with subsection (2), or in determining the weight to be given to any such material,
regard must be had, in addition to any other relevant matters, to —
a) the desirability of persons being able to rely on the ordinary meaning
conveyed by the text of the provision taking into account its context in the
written law and the purpose or object underlying the written law; and
b) the need to avoid prolonging legal or other proceedings without compensating
advantage.

The Penal Code 1871 is a statute, so the purposive approach applies to understand its
provisions. But it needs to be constantly reviewed to ensure that it is kept up to date and
meets the needs and interests of the people of Singapore in the 21st century.