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Kalco

Aug 24
2
Legally challenging to deal with sexual assault in virtual reality, say lawyers

Joshua Tong Quoted in Straits Times: “Legally challenging to deal with sexual assault in virtual reality, say lawyers”

By | In the News

On 2 August 2022, The Straits Times interviewed Kalco Law LLC Senior Associate, Joshua Tong, in an article revolving around the question on whether current laws extend to sexual crimes in the virtual space.

Author David Sun explores these legal difficulties in the novel nature of virtual spaces as unlike the real world where the alleged perpetrators and victims are clear, the question of who the offenders and victims are in virtual realities (“VR”) can be debatable.

In a hypothetical question of whether molestation within the VR would be made out as an offence as provided under the Penal Code, Joshua offers that “the mere fact the victim’s sense of feeling is affected through the VR’s immersive experience is not sufficient” given how molestation under the Penal Code has an element of criminal force which requires physical contact with the victim’s body, clothes or accessories.

Joshua offered that “whether such forms of harassment should be punished with equal severity using the criminal justice system is a far more complex question. It would require extensive consultation and debate before a decision is reached, given the fact that the two situations are, on the surface, not identical.”

While it may be possible to deal with acts such as the above via a harassment claim under Protection of Harassment Act (“POHA”) for example, Joshua notes that it may not be sufficient for victims particularly “if one is of the view they have been sexually assaulted, a harassment claim may not give these individuals the redress they feel they deserve, especially given the fact that the penalties for harassment claims are a lot lighter as compared to the sentences for sexual offences.”

Jan 17
3

Offence of Corruption (Penalties, Presumptions and Defences)

By | Criminal Law

What amounts to corruption?

In Singapore, the offence of corruption is set out in Sections 5 and 6 of the Prevention of Corruption Act (“PCA”). Section 5 deals with general cases while Section 6 applies to agents who commit corruption in respect of their principal’s affairs.

For the Prosecution to prove an offence of corruption, the following 4 elements must be shown:

  • The offender gave or received gratification (e.g. money, loan, employment, sexual services);
  • The gratification was an inducement or reward for any act/favour/disfavour;
  • There was an objectively corrupt/dishonest element in the transaction; and
  • The offender gave or accepted the gratification with guilty knowledge.

When charged with corruption, the following do not count as valid defences:

  • “I did not in fact show favour to the giver of the bribe.”
  • “I did not have the opportunity/power to show favour to the giver of the bribe.”

Possible defences:

  • “The gratification was purely a gift that was given/received without any expected favour in return.”
  • “I was not being dishonest and was authorised by my supervisor to enter into the transaction.”

Presumptions:

If the recipient of any gratification is a government officer or agent, it is presumed that such gratification was given or received corruptly as an inducement or reward. The burden would then be on the accused person to prove otherwise.

What are the different offences for corruption?  

OffenceProvisionAdditional elements to be provenPrescribed punishment
OffenceSection 5 of the PCA-Fine up to $100,000, or imprisonment up to 5 years, or both.
OffenceSection 6 of the PCAGratification is made to an agent as an inducement or reward in relation to his principal’s affairs. Fine up to $100,000, or imprisonment up to 5 years, or both.
OffenceSections 7 and 12 of the PCA• Gratification is made as an inducement or reward in relation to a public or government contract; or
• Gratification is made to a member of a public body as an inducement or reward in relation to his public office or powers. 		Fine up to $100,000, or imprisonment up to 7 years, or both.

What penalties can one expect for corruption?

Due to the fact-sensitive nature of corruption cases, courts have adopted a robust 5-step approach in sentencing offenders. At the first step, courts will refer to the following table to identify the relevant factors that go towards harm and culpability:

Factors going towards harmFactors going towards culpability
• Actual loss caused to principal.
• Benefit to the giver of gratification.
• Harm caused to the giver of gratification.
• Type and extent of loss to third parties.
• Public disquiet.
• Offences committed as part of a group or syndicate.
• Involvement of a transnational element.
• Amount or value of gratification given or received. 		• Degree of planning and premeditation.
• Level of sophistication.
• Duration of offending.
• Extent of the offender’s abuse of position and breach of trust.
• Offender’s motive in committing the offence.
• The presence of threats, pressure or coercion.
• Amount or value of gratification given or received.

At the second and third step, courts will decide what is the level of harm and culpability, before identifying a “starting point” sentence with reference to the following diagrams:

For purely private sector corruption, with/without agent (PCA Sections 5 and 6):

[table “” not found /]

For public sector corruption (PCA Sections 7 and 12):

[table “” not found /]

Finally, at the fourth and fifth step, courts will adjust the sentence according to the following offender-specific factors and ensure that the total sentence is proportionate to the seriousness of the offender’s offences:

Aggravating factorsMitigating factors
a. Offences taken into consideration for sentencing purposes.
b. Relevant antecedents.
c. Evident lack of remorse. 		a. A guilty plea.
b. Co-operation with the authorities.
c. Actions taken to minimise harm to victims.
Jan 14
3

I have been asked to take a urine/blood test. Can I refuse to do so?

By | Criminal Law

No.

Blood Tests

Under Section 13 of the Intoxicating Substances Act, any officer of the Bureau may require any person to provide a blood sample for a blood test if he has used or inhaled, or is reasonably suspected of having used or inhaled, any intoxicating substance for the purpose of inducing or causing a state of intoxication.

Anyone who without reasonable excuse fails to provide a specimen of his blood for a laboratory test is found to have committed an offence under Section 13 of the Intoxicating Substances Act.

The penalty is a fine not exceeding $2,000 or imprisonment for a term not exceeding 3 months.

Urine Tests

Under Section 31(1) of the Misuse of Drugs Act (MDA), any officer of the Bureau may require any person who he reasonably suspects to have smoked, administered to himself or otherwise consumed a controlled or specified drug to provide specimens of his urine for a urine test.

Anyone who without reasonable excuse fails to provide a specimen of his urine for a urine test is found to have committed an offence under Section 31(2) of the MDA.

The penalty for this is a maximum of 10 years’ imprisonment or a fine of $20,000 or both.

What effect will my Blood Test/ Urine Test have on my drug offence(s)?

Presumption of misuse of intoxicating substances: Under Section 14 of the Intoxicating Substances Act, if you are proven through a blood test to contain an amount of any chemical compound over the amount specified, you shall be presumed, until the contrary is proved, to have used or inhaled any intoxicating substance for the purpose of inducing or causing in himself a state of intoxication.

Presumption relating to urine test: Under Section 22 of the MDA, if any controlled drug is found in a person’s urine, he shall be presumed, until the contrary is proved, to have smoked, consumed or administered to himself that controlled drug.

Conclusion

It is clear that Singapore takes an extremely strict stance on drug and substance abuse. The above summary of 6 types of drug related offences and the range of penalties should provide sufficient insight on what to expect if you are found guilty of such offences. Do note that the presumptions under each offence apply automatically until the contrary is proven.

Read more about Drug Offences in our other article.

Jan 14
2

Drug Offences in Singapore

By | Criminal Law

What Drug Offences are there in Singapore?

In Singapore, the list of controlled drugs and inhalants can be found under the Misuse of Drugs Act (MDA) and Intoxicating Substances Act (INSA).

The list includes:

• Buprenorphine (Subutex, Tec, Su su)
• BZP and TFMPP (Party Pills)
• Cannabis (Marijuana, Pot, Grass, Joints, Weed, Ganja, Hashish)
• Cocaine (Crack, Coke, Snow)
• Ecstasy (MDMA, MDEA, MDA)
• Heroin (White, Smack, Junk, Powder, Putih, Ubat)
• Inhalants (Glue-sniffing, Solvent abuse, Solvent inhalation, Solvent Sniffing)

• Ketamine (K, Special K)
• Kratom
• Lysergide (LSD, Acid, Trips, Stamp, Tabs)
• Mephedrone (Bubbles, Mcat, Snow and Meow)
• Methamphetamine (Ice, Glass, Crystal, Quartz, Yaba, Sybu, Hirropon)
• New Psychoactive Substances (NPS)
• Nimetazepam

Main Drug Offences in Singapore:

  1. Drug Trafficking
  2. Drug Possession
  3. Drug Consumption
  4. Possession of Utensils
  5. Inhaling Intoxicating Substances
  6. Offering to or Supplying Intoxicating Substances

Offences for Drug Trafficking

Anyone found involved in selling, giving, administering, transporting, delivering or distributing a controlled drug commits an offence of trafficking under Section 5 of the MDA. In addition, simply offering to traffic and to do/ offer to do any act in preparation of trafficking a controlled drug also constitutes an offence under Section 5.

(Note: It is also an offence under Section 7 of the MDA to import or export controlled drugs.)

The penalty for drug trafficking largely depends on the class (Class A, B, C) and quantity of drugs trafficked. The range of penalties can be found at the Second Schedule of the MDA.

Presumptions for drug trafficking

Under Section 17 of the MDA, you are automatically presumed to be trafficking in drugs if you are found in possession of the following amounts:

  • 100 grammes of opium;
  • 3 grammes of morphine;
  • 2 grammes of diamorphine;
  • 15 grammes of cannabis;
  • 30 grammes of cannabis mixture;
  • 10 grammes of cannabis resin;
  • 3 grammes of cocaine;
  • 25 grammes of methamphetamine;
  • 113 grammes of ketamine; or
  • 10 grammes of any or any combination of the following:
    • N, α-dimethyl-3,4-(methylenedioxy)phenethylamine;
    • α-methyl-3,4-(methylenedioxy)phenethylamine; or
    • N-ethyl-α-methyl-3,4-(methylenedioxy)phenethylamine

Is there a death penalty?

Yes. Several trafficking offences under the MDA carry a mandatory death penalty.

Anyone found guilty of such offences may be able to avoid the mandatory death penalty if it can be proven that they were only couriers. In addition to that, they must have either helped the Central Narcotics Bureau in some substantive way or be suffering from a mental disability.

In such cases, the drug trafficker would instead be sentenced to life imprisonment and caned not less than 15 strokes.

Offence for Drug Possession

Anyone found to possess a controlled drug is found to have committed an offence under Section 8(a) of the MDA.

The penalty for this offence is a maximum of 10 years’ imprisonment or a fine of $20,000 or both.

Presumption of drug possession: Under Section 18 of the MDA, if you are found with drugs contained inside something you own (e.g. backpack), inside your home or an item or place that you have keys to (e.g. locker), you are automatically presumed to be in possession of drugs and to have known that it was a prohibited drug unless proven otherwise.

Offence for Drug Consumption

Anyone found to have smoked, consumed or administered to himself a controlled or specified drug is found to have committed an offence under Section 8(b) of the MDA.

(Note: Specified drugs refer to certain controlled drugs that are listed separately in the Fourth Schedule of the MDA)

The penalty for this offence is imprisonment of not less than 1 year but not more than 10 years, and a fine not exceeding $20,000.

Presumption relating to urine test: Under Section 22 of the MDA, if any controlled drug is found in a person’s urine, he shall be presumed, until the contrary is proved, to have smoked, consumed or administered to himself that controlled drug.

What if I am a repeat drug offender?

If you are a repeat offender, (i.e. previously been admitted into an institution or convicted for a drug related offence), the penalty for consuming a controlled drug is imprisonment of at least 3 years. Depending on the nature of your previous conviction and the number of such previous convictions, you may be subject to mandatory minimum imprisonment of at least 5 or 7 years and given a minimum of 3 or 6 strokes of the cane.

What if I consumed the drugs outside Singapore?

Any Singaporean or Singapore Permanent Resident found to have smoked, administered to himself or otherwise consumed drugs outside Singapore would be dealt with as if that offence had been committed within Singapore.

Possession of Drugs Utensils

Anyone possessing any pipe, syringe, utensil, apparatus or other article intended for the smoking, administration or consumption of a controlled drug has committed an offence under Section 9 of the MDA. It does not matter whether they had consumed any controlled drugs or had any on them in the first place.

The penalty for this offence is imprisonment for a maximum of 3 years or a fine of $10,000 or both.

Presumption of premises: Under Section 19 of the MDA, where a utensil of such nature is found in any premises, it is presumed, until the contrary is proved, that the premises were used for the purpose of smoking, administering, or consuming a controlled drug.

Presumption of persons in such premises: Also, under Section 19 of the MDA, anyone found inside or escaping from any place used (or presumed to be used) for the purpose of smoking or administering a controlled drug will be presumed to have been smoking or administering a controlled drug in that place or premises, unless proven otherwise.

Offences for Inhaling intoxicating substances

Anyone who uses or inhales any intoxicating substance for the purpose of inducing or causing in himself a state of intoxication, has committed an offence under Section 3 of the Intoxicating Substances Act.

The penalty for this offence is admission to an approved centre for treatment and rehabilitation for up to 6 months, or up to 6 months of imprisonment or S$2,000 fine or both.

Presumption of misuse of intoxicating substances: Under Section 14 of the Intoxicating Substances Act, where the blood test results reveal any chemical compound with an amount that is over the specified limit, it will be presumed, until the contrary is proved, that you have used or inhaled any intoxicating substance for the purpose of inducing or causing a state of intoxication.

Offence for Supplying or offering to supply intoxicating substances

A person is found to have committed an offence under Section 4 of the Intoxicating Substances Act if he is found selling, supplying, or offerings to sell or offerings to supply an intoxicating substance to any person. The offender also has to know or believe that the intoxicating substance is, or its fumes are, likely to be used or inhaled by the other party to for the purpose of inducing or causing a state of intoxication in himself.

The penalty for this offence is a fine not exceeding $5,000 or to imprisonment for a term not exceeding 2 years or to both.

Jan 14
3

How much would it cost for a lawyer to defend me?

By | Criminal Law

There are firms that quote a fixed fee for certain types of cases. However, we do not share that practice because each case has different charges and different number of charges. It would be helpful to know what your options are and based on the option that you decide to take we would be able to better inform you of the legal fees that you are looking at.

We don’t wish to short change you by only doing your defense up to a certain amount. If we decide to take on your case and defend you, you can trust that we will be with you all the way and that we would be reasonable in our fees as well.

Our first consultations are free and that’s where we assess your charges and matter so don’t worry and schedule a consultation session with us and we can take it from there.

If you require more information that are not listed in our articles, or legal advice on a specific matter, please contact us for a free first consultation.

Jan 14
3

What happens after I plead guilty?

By | Criminal Law

If the accused indicates to the court that he wishes to plead guilty, a court date will be fixed for him to do so. Prior to indicating that he would be pleading guilty, the accused and/or his lawyers may write to the AGC (known as a letter of representations) with one or more of the following requests (this list is non-exhaustive):

  1. For certain charges to be withdrawn (because the elements of the offence are not made out);
  2. For certain charges to be reduced from a more serious charge to a less serious one;
  3. For the Prosecution to only proceed on a smaller number of charges, and apply to have the remaining charges taken into consideration for the purposes of sentencing; or
  4. For the Prosecution not to object to the Defence’s position on sentence.

The Prosecution may extend to an accused person a plea offer. This would usually involve either a reduction of some or all the charges against the accused, or to proceed on a smaller number of charges instead.

Having these charges reduced to a less serious one may help an accused person avoid these mandatory minimum sentences. It is therefore important to secure as favourable a plea offer as possible before pleading guilty to the charges. It is recommended that you engage a lawyer for such matters as they would have sufficient experience to advise you if a plea offer is favourable to you or to work on your defence to ensure that you get an acceptable and reasonable conviction.

If you require more information that are not listed in our articles, or legal advice on a specific matter, please contact us for a free first consultation.

Jan 14
3

I received a stern warning or conditional warning. What does it mean and what happens to me?

By | Criminal Law

A stern or conditional warning is of no legal effect, as it is merely a statement by the authorities that they are of the view that an offence has been committed. It does not form part of a suspect’s criminal record.

Therefore, while the Attorney General Chambers may consider a previous issuance of a stern or conditional warning in determining whether to charge a suspect who has reoffended, it cannot be raised as an aggravating factor during sentencing.

If you require more information that are not listed in our articles, or legal advice on a specific matter, please contact us for a free first consultation.

Jan 14
3

Can I reject a urine test or polygraph examination by the police?

By | Criminal Law

A urine test or polygraph examination would usually take place during the investigation process and if you are a suspect to the case.

After seizing the physical evidence relevant to the investigations, the Investigation Officer would then refer the evidence to various experts to conduct the necessary tests on the evidence if necessary. These include:

  • extracting data from mobile phones / laptops etc,
  • DNA / fingerprint examinations,
  • analysis of drug samples and/or urine samples etc.

The reports published from these tests would then be used as evidence during the investigative process.

If you are a witness and/or suspect to the case, you may also be asked to undergo a polygraph examination (also known as a lie detector test).

It is important to note that the Police cannot compel anyone to undergo this examination as the results of this examination is not admissible as evidence in court. Instead, it gives the Investigation Officer general guidance on whether a witness or suspect is “probably truthful” or “probably untruthful”.

If you require more information that are not listed in our articles, or legal advice on a specific matter, please contact us for a free first consultation.

Jan 14
3

How long can a person be remanded or held in custody for in Singapore?

By | Criminal Law

A suspect who is not informed of their charges cannot be in remand for more than 48 hours.

However, the Police may charge a suspect before investigations are complete. This is known as a holding charge, and is served on an accused when the Police wishes to place a suspect in remand longer than the permitted 48 hours.

After serving the holding charge on the suspect, they would then produce him in court, and make an application that he be remanded for a further period (usually three weeks) for the Police to continue investigations into the suspected offence.

Holding charges are usually used where the offences committed are serious.

While in remand, you may request to call to your family or a criminal lawyer who will be able to help you or visit you. You may also request a lawyer of your choice if you already have one. This is to help you understand your rights and to seek advice on any defences that may be applicable and available for you.

If you require more information that are not listed in our articles, or legal advice on a specific matter, please contact us for a free first consultation.

Jan 14
3

I am being currently being investigated, how long will an investigation by Singapore Police take?

By | Criminal Law

There is no fixed amount of time in which the investigations need to be concluded by. Accordingly, the investigative process can last anywhere between a few weeks to several years. This depends on, amongst other things, the complexity of the case and how easily the witnesses can be identified and contacted.

However, if you are unsure of where things are headed and would like to get some clarity, feel free to call us or book a free consultation for us to assist you.

If you require more information that are not listed in our articles, or legal advice on a specific matter, please contact us for a free first consultation.