ENVIRONMENTAL CRIMINAL LAW IN SINGAPORE1
| Citation | (1997) 9 SAcLJ 294 |
| Date | 01 December 1997 |
| Published date | 01 December 1997 |
| Author | FOO KIM BOON |
Criminal sanctions are the basic means of enforcing environmental laws in Singapore2. However, an intermarriage of three types of measures — criminal sanctions, administrative guidelines, and civil sanctions — can clearly be discerned in these laws. The rationale behind criminal sanctions is primarily deterrence and punishment, and in themselves, cannot protect the environment effectively. The punishment for a crime is a ‘one-off’ affair and may do nothing to eradicate the root cause of a problem. As the saying goes, ‘prevention is better than cure’. This common-sense adage is reflected in Principle 15 of the Rio Declaration on Environment and Development as follows3:—
‘In order to protect the environment, the precautionary approach shall be widely applied by States according to their capabilities. Where there are threats of serious or irreversible damage, lack of full scientific certainty shall not be used as a reason for postponing cost-effective measures to prevent environmental degradation.’
Preventive measures are almost as important as deterrent and punitive measures. For maximum effectiveness, our environmental laws have married all three measures together. Each of these measures will be discussed in turn.
Protection of the environment forms an important concern in our criminal laws. We have various environmental statutes which impose criminal sanctions on offenders. These include fines, imprisonment, forfeiture, confiscation, and, in the case of littering, a corrective work order (CWO)4.
By far, the most common sanction in all the environment statutes is the fine. There is a wide range of fines under the various statutes. It has
been recognized as a useful tool in the enforcement of environmental criminal law. In Chandra Kumar v PP5, the appellant was convicted for illegally dumping refuse contrary to s20(1) of the Environmental Public Health Act (‘EPHA’). The vehicle used in the commission of the offence was ordered to be forfeited by the district court. On appeal, the vehicle was ordered to be returned to its owner. The learned Chief Justice pointed out that in cases involving the illegal dumping of refuse, forfeiture is not a suitable punishment. Instead,
‘…a discretion to impose a wide range of fines would be more effective in punishing offenders and deterring the commission of such offences…A range of fines…would be a better tool in combating illegal dumping than forfeiture. Fines are precise, amenable to variation and therefore more likely to be efective.’6 (emphasis added)
While fines can be meted out more precisely, the astronomical prices of vehicles in recent years would have rendered forfeiture inappropriate, in some cases, as being out of proportion to the offence.
The statutes are administered and enforced by various government bodies. For example, the Primary Production Department (‘PPD’) is responsible for the Wild Animals and Birds Act (‘WABA’)7 and the Endangered Species (Import and Export) Act (‘ESA’)8. The Ministry of the Environment (‘ENV’) is mainly concerned with inland environmental laws. The more significant statutes that come under its purview include the Clean Air Act (‘CAA’)9, the Environmental Public Health Act (‘EPHA’)10, Poisons Act (‘PA’)11, and the Water Pollution Control and Drainage Act (‘WPCDA’)12. Such a system of administration and enforcement ensures optimal deployment of resources and manpower.
Many offences are prosecuted by lay prosecutors within the relevant government ministry or department. The ENV, for example, has its own
Prosecution Unit. However, appeals are handled by Deputy Public Prosecutors from the Attorney-General’s Chambers since appeals are likely to involve issues of law which the lay prosecutors may not be well-acquainted with. For more serious offences, a written consent from the Public Prosecutor must be obtained before prosecution can be initiated13. For example, s18(1) of the Poisons Act states that:—
‘No prosecution shall be instituted under this Act without the sanction in writing of the Attorney-General or any person authorised thereto by him in writing to grant such sanctions.’
Enforcement, of course, does not always mean prosecution, because the decision to prosecute is an exercise of discretion by the prosecuting authority upon examination of all the relevant facts of a case. Sometimes a warning or advice by the enforcement authority would suffice. For minor littering offences, offenders are required to view a 15-minute video-tape as part of an education programme and then pay the appropriate composition fine14!
Apart from criminal sanctions, many administrative measures are also in place. This is a very useful means of controlling environmental problems. Firstly, administrative measures ensure a continuing control on pollution activities. In contrast, criminal and civil sanctions are more one-off measures. Secondly, they are preventive or anticipatory in nature. This accords with the precautionary principle which is strongly advocated in many international environmental conventions15. Thirdly, they ensure that
certain quality standards are complied with or achieved. This also enables such standards and qualities to be determined well in advance.
The issuance of licences and permits ensures that activities which may potentially affect the environment in an adverse manner are controlled and monitored closely. Before an activity is allowed to be carried on, the relevant government body must be satisfied that the activity has some utility. For instance, the ENV issued 38,210 licenses to operators and stall-holders in markets, food centres and eating establishments16. It also issued 628 poisons licenses, 940 poisons permits and 250 transport approvals under the Poisons Act and the Poisons (Hazardous Substances) Rules.
Some very utilitarian activities necessarily involve some sort of risk to the environment. For example, most industries produce wastes as a by-product. Where the industries are allowed to operate, they may even be said to be ‘licensed to pollute’. However, as far as Singapore is concerned, the extent of such pollution allowed is regulated by international standards. These standards have to be complied with strictly on pain of revocation of the licence or permit. This, in addition to criminal sanctions like fines or imprisonment, encourages adherence to the standards laid down. Likewise, the issuance of certificates is also a way of ensuring compliance with specifications, standards, and other conditions that may exist.
An owner or occupier who does not comply with the requirements, standards, or conditions set down in the relevant statute may find a notice or order issued against him. Such a notice or order will require the owner or occupier to comply with the requirements set down in it. Failure to do so may make him liable to pecuniary penalties. These include compensation, damages and costs, and expenses incurred in the execution of works or processes to comply with environmental requirements.
These are attempts to give effect to the ‘polluter pays’ principle. As can be seen from Principle 16 of the Rio Declaration:—
‘National authorities should endeavour to promote the internalization of environmental costs and the use of economic instruments, taking into account the approach that the polluter should, in principle, bear the cost of pollution, with due regard to the public interest and without distorting trade and international investment.’
It is a classic example of paying for your own sins and making the proper amends. However, an aggrieved person is usually provided with the recourse of an appeal. If he chooses to appeal against the notice or order, the commissioner or Minister concerned may either confirm, vary, or rescind it. This decision is final.
In the event that the order issued is a mandatory one, an aggrieved person may lodge an appeal with the High Court17. However, it is important to note that if the matter which the notice or order is concerned with involves a degree of urgency or emergency, the court or an authorized person from the relevant government ministry or body may sanction the execution of the work. Such situations would arise where the immediate implementation of the work is imperative for public safety, service, or health.
It may be helpful at this juncture to discuss briefly the use of civil sanctions in enforcing environmental law. Civil sanctions are provided for by the common law and by statute. Several environmental statutes provide for various types of civil liabilities. The amount of damages or costs which may be recovered from the offending party is usually provided for as well. These may include clean-up costs, and damage caused in the process of clean-up operations.18
It may be worth pointing out at this juncture that the Merchant Shipping (Oil Pollution) Act19 (‘MSOPA’) provides that when oil is discharged or escapes from a ship into the territorial waters of Singapore (or that of any other Convention country), the shipowner shall be liable for any damage resulting from such discharge, the cost of any remedial measures taken and any damage caused as a result of such remedial measures being taken20. The Convention referred to here is the International Convention on Civil Liability for Oil Pollution Damage 196921. The shipowner would not be liable if he can show that the discharge or escape is (a) the result of an act of war, insurrection, hostility, civil war or an exceptional, inevitable or irresistible natural phenomenon or act; (b) the result of an act by a third party or; (c) the result of negligence or wrongful act of a government or other authority in exercising its functions of maintaining
lights or other navigational aids. The...
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