Comment: REVITALISING THE PENAL CODE WITH A GENERAL PART: A COMMENTARY

• Citation: (2005) 17 SAcLJ 476
• Date: 01 December 2005
• Published date: 01 December 2005
• Author: HUI Choon Kuen LLB (Oxford), LLM (New York University); District Judge, Subordinate Courts of Singapore.

Prof Stanley Yeo argues in an article that our Penal Code has, over the extended period of time since its inception, fallen into a “dismal state”. Major repair is required in the form of a General Part. The writer argues that our Penal Code is not in such an abject state as painted by Prof Yeo. The current blend of code and case law continues to serve the criminal justice system well and such a major overhaul would not be warranted. Instead, the writer advocates a “band-aid” approach whereby legislative amendments to the Penal Code are made to specific areas.

I. Introduction

1 In putting forward the case for introducing a General Part in the Penal Code (Cap 224, 1985 Rev Ed), Prof Stanley Yeo, in his article entitled “Revitalising the Penal Code with a General Part”,1 makes the following arguments:

(a) The Penal Code is in need of major reformation. This is because with the passage of time, it no longer satisfies the criteria of a good code. These are:

(i) precision;

(ii) comprehensibility;

(iii) being democratically made; and

(iv) accessibility.

(b) The main reason why the Penal Code does not satisfy the four criteria above is because it does not define comprehensively the general principles or elements of criminal responsibility, ie, fault elements (mens rea), physical elements (actus reus and causation), ancillary liability and general defences. Instead, the average Singaporean man in the street has to refer additionally to a very large body of case law in order to understand the criminal law as contained in the Penal Code.

(c) There are two ways to reform the Penal Code. The first is to redraft the Code in specific areas to deal with specific problems. This “band-aid” approach is rejected because it may lead to inconsistency between the new part and the rest of the Penal Code.2

(d) The second method is to introduce a General Part which will define the general principles or elements of criminal responsibility. This is the recommended method.

II. The four criteria

2 It is of course the aim of all legislatures to pass legislation that is precise, comprehensible, democratically made, and accessible. However, centuries of drafting experience show that the first characteristic is impossible to achieve. In the words of Lord Denning MR:3

Whenever a statute comes up for consideration it must be remembered that it is not within human powers to foresee the manifold sets of facts which may arise, and, even if it were, it is not possible to provide for them in terms free from all ambiguity. The English language is not an instrument of mathematical precision. Our literature would be much the poorer if it were. This is where the draftsmen of Acts of Parliament have often been unfairly criticized. … It would certainly save the judges trouble if Acts of Parliament were drafted with divine prescience and perfect clarity. In the absence of it, when a defect appears a judge cannot simply fold his hands and blame the draftsman. He must set to work on the constructive task of finding the intention of Parliament, and he must do this not only from the language of the statute, but also from a consideration of the social conditions which gave rise to it, and of the mischief which it was passed to remedy, and then he must supplement

the written word so as to give “force and life” to the intention of the legislature.

3 Of course, merely because statutes cannot be drafted with “divine prescience and perfect clarity”, it does not follow that therefore codification of the criminal law is an unworthy exercise. However, the point is that it is virtually impossible to draft a code in such a precise and comprehensible manner, such that no judge is ever required to make a judicial interpretation of it. It then follows that one must always have a large body of case law to be read together with such a code. This point will be elaborated on later.

A. Comprehensibility and accessibility

4 Prof Yeo has correctly pointed out that many of the important terms in the Penal Code are not defined in the Penal Code itself: eg, “rash”, “intention”, etc. And it is also true that there are some terms where, whilst a definition is provided, it is decidedly unhelpful: eg, “fraudulently”.4 However, case law has developed over the years to flesh out the meaning of these terms. The lack of a definition for these terms is therefore not a problem with regards to a just and efficient application of our Penal Code. In fact, I would argue that it is preferable for the meaning of such terms to be fleshed out by case law. As pointed out by Lord Denning above, it is not within human powers to foresee the manifold sets of facts which may arise. A statutory definition of “intention” for example, would by nature be restrictive compared to judicial precedent, and could very well hinder the court’s application of a just interpretation in a particular case. In addition, there is a rich body of law in other jurisdictions which our courts may find helpful in determining the just interpretation in a particular case. For example, the meaning of “intention” has been considered by...