Public Prosecutor v Ng Kok Wai

• Jurisdiction: Singapore
• Court: District Court (Singapore)
• Judge: Kow Keng Siong
• Judgment Date: 30 September 2022
• Neutral Citation: [2022] SGDC 231
• Citation: [2022] SGDC 231
• Hearing Date: 19 September 2022,30 September 2022
• Published date: 06 October 2022
• Year: 2022
• Docket Number: District Arrest Case 906075 of 2022 & 906077 of 2022
• Plaintiff Counsel: DPP Jocelyn Teo
• Defendant Counsel: Mr Ryan David Lim (I.R.B. Law LLP)
• Subject Matter: Criminal law,Merchant Shipping Act (Cap 179, 1996 Rev Ed),Extraterritoriality,Whether s 178 of the Merchant Shipping Act extends s 378, s 380, s 441, s 442 and s 451 of the Penal Code (Cap 224, 2008 Rev Ed) to acts committed by a passenger on a foreign ship outside Singapore,Whether s 180 of the Merchant Shipping Act extends s 378, s 380, s 441, s 442 and s 451 of the Penal Code (Cap 224, 2008 Rev Ed) to acts committed by a passenger on a foreign ship outside Singapore,Statutory Interpretation,Construction of Statutes,Application of an Act outside the territory by implication,Words and Phrases,"For the purpose of giving jurisdiction under this Act",Section 178 of the Merchant Shipping Act (Cap 179, 1996 Rev Ed),"every offence","any offence",Section 180 of the Merchant Shipping Act (Cap 179, 1996 Rev Ed),Persons who "does not belong" to a ship

District Judge Kow Keng Siong: Introduction

Crime can strike anywhere. Including on cruise ships. Indeed, these “floating cities”¹ – which have a high concentration of holiday makers with possibly a lowered sense of self-inhibition and security consciousness – can be a fertile ground for crime. If a passenger commits a criminal act on a non-Singapore registered ship (“foreign ship”) on the high seas, can that passenger be held criminally liable under Singapore law? This important issue – which appears to have eluded consideration by Singapore courts thus far – is raised in the present case.

Charges

The accused person in the present case is Ng Kok Wai (“the Accused”), a Singapore citizen. He is alleged to have committed the following offences while being a passenger on the “World Dream” (a Bahamas-registered cruise ship) on the South China Sea: An offence punishable under s 451 of the Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) read with s 180 of the Merchant Shipping Act (Cap 179, 1996 Rev Ed) (“Merchant Shipping Act”) for having allegedly climbed over the balcony of the cabin room of another passenger (“victim”) to gain access into the victim’s cabin room in order to commit theft (“House-breaking Charge”). An offence punishable under s 380 of the Penal Code read with s 180 of the Merchant Shipping Act for having allegedly dishonestly taken a bra and one luggage out of the victim’s cabin room (“Theft Charge”).

Preliminary Legal Issue

The Accused has claimed trial to his charges. The Defence submitted that the Accused cannot be held criminally liable even if the elements of the House-breaking Charge and Theft Charge are made out. This is because the acts are alleged to have taken place outside Singapore. According to the Defence, the Penal Code provisions which are relevant to his charges – namely, s 378, s 380, s 441, s 442 and s 451 (“the Relevant Penal Code Provisions”) – do not apply extraterritorially.

Before proceeding with the Accused’s trial, the parties agreed that I should first determine whether the Relevant Penal Code Provisions can apply extraterritorially (“Preliminary Legal Issue”).

Prosecution’s submissions

It is not disputed that the Relevant Penal Code Provisions, on their own, do not apply to criminal acts committed on a foreign ship on the high seas. To extend the Relevant Penal Code Provisions extraterritorially in this case, the Prosecution relied on s 180 of the Merchant Shipping Act. It was submitted that s 180 has two legal effects. First, it extends the Relevant Penal Code Provisions to criminal acts committed extraterritorially on ships. Second, s 180 confers on Singapore courts the jurisdiction to try such criminal acts. The Prosecution further submitted that save for one difference, s 178 of the Merchant Shipping Act has similar legal effects as s 180. That difference is this – s 178 applies only to offences under the Merchant Shipping Act while s 180 applies more broadly to all offences under Singapore criminal law. The Prosecution explained that this is why they had chosen to rely on s 180 – and not s 178 – as the legal basis to prosecute the Accused.

Defence’s submissions

According to the Defence, s 178 and s 180 merely confer on Singapore courts the jurisdiction to try offences under the Merchant Shipping Act committed extraterritorially. They do not render extraterritorial acts punishable as offences under Singapore law. To interpret s 178 and s 180 otherwise would be inconsistent with the text and legislative history of these two provisions, as well as established case law and policy. Finally, the Defence submitted that even if s 180 does have extraterritorial effect, that provision applies only to persons who trespass on ships – and not to passengers such as the Accused.

Key issue for determination

Given the parties’ submissions, the Preliminary Legal Issue can thus be further refined as follows:

Do s 178 and/or s 180 of the Merchant Shipping Act have the effect of extending the Relevant Penal Code Provisions to acts committed by a passenger on a foreign ship outside Singapore?

Applicable principles

Before addressing the Preliminary Legal Issue, it is helpful to first set out the applicable principles. In this regard, it is well-established that two distinct requirements must be met before an accused person can be tried and convicted for acts that he has committed outside Singapore.

1st Requirement – Provision that criminalises acts outside Singapore

The first is that there must be a statutory provision that expressly criminalises acts committed outside Singapore (“ambit extension provision”). In the absence of such a provision, there is a presumption that a criminal enactment is not intended to apply extraterritorially. This presumption arises out of respect for the sovereignty of other nations: Public Prosecutor v Taw Cheng Kong [1998] 2 SLR(R) 489 at [66] – [69] and [88]; Public Prosecutor v Pong Tek Yin [1990] 1 SLR(R) 543 (“Pong Tek Yin”) at [13], [14], [16] – [21].

There is no single or “standard” formulation for ambit extension provisions. My research reveals that there are at least four different ways in which such provisions have been formulated. These are set out in Annex B.

2nd Requirement – Provision that confers jurisdiction on courts to try offence

The second requirement is that a court trying an accused person on a charge involving an extraterritorial offence must have the jurisdiction – i.e., the authority to hear and determine – the charge. As courts are creatures of statute, this authority must be established by legislation (“venue provision”): Muhd Munir v Noor Hidah [1990] 2 SLR(R) 348 at [19]; Re Nalpon Zero Geraldo Mario [2013] 3 SLR 258 at [13] – [16] and [20].

Section 50 of the State Courts Act 1970 (“State Courts Act”) and s 15(1) of the Supreme Court of Judicature Act 1969 (“Supreme Court of Judicature Act”) are oft-cited examples of venue provisions: Public Prosecutor v Quek Chin Chuan [2000] 2 SLR(R) 138 at [9]; Pong Tek Yin at [7] – [14]; second reading speech for the Supreme Court of Judicature (Amendment) Bill (No. 12 of 1993) in Singapore Parliamentary Debates, Official Report (13 April 1993) vol 61 at cols 130 – 137.

My decision Ruling on Preliminary Legal Issue – Summary

Having set out the applicable principles, I now come to the Preliminary Legal Issue. After considering the parties’ submissions, I find that – Section 178 is an ambit extension provision. In other words, it has the effect of extending the Relevant Penal Code Provisions to criminal acts committed on foreign ships outside Singapore. Section 180 is a venue provision. It authorises courts to try offences under the Relevant Penal Code Provisions committed extraterritorially.

I will now explain how I had come to the above findings.

Approach to statutory interpretation

To address the Preliminary Legal Issue, I would need to determine how s 178 and s 180 ought to be interpreted. In approaching this task, I adopted the purposive interpretation approach which involves the following steps: Attorney-General v Ting Choon Meng [2017] 1 SLR 373 and Tan Cheng Bock v Attorney-General [2017] 2 SLR 850 (“Tan Cheng Bock”): First, ascertain the possible interpretations of s 178 and s 180, having regard to both the ordinary meaning and the context of these provisions within the Merchant Shipping Act. (“Step 1”) Second, ascertain the legislative purpose of s 178 and s 180. This purpose may be discerned from the language used in these provisions. (“Step 2”) If the ordinary meaning of s 178 and s 180 is clear, then extrinsic material can only be used to confirm the ordinary meaning but not to alter it. If the ordinary meaning of s 178 and s 180 is ambiguous or will lead to a manifestly absurd or unreasonable result, then extrinsic material can be used to ascertain the meaning of these provisions. Finally, compare the possible interpretations against the purposes of s 178 and s 180 and select the interpretation that best advances the purpose of these provisions. (“Step 3”)

Interpretation of s 180 The elements of the provision

I begin my analysis with s 180 since this is the provision relied on by the Prosecution to extend the Relevant Penal Code Provisions extraterritorially in this case. The full text of s 180 is in Annex A. For ease of understanding, s 180 can be broken up into its elements as shown in the right column below. My comments are reflected in the left column.

Comments	Text of s 180
	Where any person
Condition 1	is charged with having committed any offence
Condition 2: Scenario A	on board any Singapore ship on the high seas or elsewhere outside Singapore or
Condition 2: Scenario B	on board any foreign ship to which he does not belong
Condition 3	and that person is found within the jurisdiction of any court in Singapore which would have had cognizance of the offence if it had been committed on board a Singapore ship within the limits of its ordinary jurisdiction,
Legal effect if conditions are met	that court shall have jurisdiction to try the offence as if it had been so committed.
	[emphasis added]

Section 180 is a venue provision

To recap, both the Prosecution and the Defence had agreed that s 180 is a venue provision. This is because it confers on a court the “jurisdiction to try” an offence committed extraterritorially on a foreign ship. According to s 180, the offence can be tried “as if” it had been committed on a Singapore ship “within the limits of the court’s ordinary jurisdiction”. Given that courts ordinarily exercise jurisdiction within the territorial limits of the States by which they are established, s 180 is in effect stating that a Singapore court has the authority to try a criminal act committed extraterritorially as if that act had been committed on a...