PROBATION OF OFFENDERS (AMENDMENT) BILL

Order for Second Reading read. 2.20 pm

The Minister for Community Development (Mr Yeo Cheow Tong): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

The Bill seeks to amend the Probation of Offenders Act (Chapter 252) to provide the Courts with the power to grant probation, or an order of absolute or conditional discharge, for young offenders who have attained the age of 16 years but have not attained the age of 21 years at the time of their convictions for their offences, notwithstanding that the offences concerned are punishable with specified minimum or mandatory minimum sentences.

In addition, such young offenders must also not have been previously convicted of an offence that is punishable with a specified minimum, or mandatory minimum sentence.

Sir, the Probation of Offenders Act, as it now stands, can apply to any offence except for those offences where the sentence is fixed by law. The proposed amendments are necessary in view of the decision by the Chief Justice on 30th June 1993 that the Courts have no power to grant probation to offenders convicted of an offence where a mandatory minimum sentence is prescribed for that offence.

The Chief Justice had ruled that the Court's discretion to make a Probation Order cannot over-ride the intention of the legislature in providing for specific sentences to be meted out for specific offences. He ruled that the words "fixed by law" appearing in section 5(1) of the Probation of Offenders Act apply to mandatory minimum sentences.

Sir, the Chief Justice's decision is correct. In granting probation to an adult offender in cases where the law specifies a mandatory minimum sentence, a Court would be defeating the intention of Parliament when it enacted mandatory minimum penalties for such offences.

The Probation of Offenders Act applies only to offenders above 16 years of age. Juvenile offenders below 16 years of age are dealt with under the Children and Young Persons Act.

What is of concern to us are the young offenders in the age group of 16-21 years. There are two points which we need to bear in mind.

First, my Ministry's experience with young offenders on probation shows that 94% were first offenders. About 84% of those granted probation complete it successfully. What is significant is that for young offenders who had committed offences involving mandatory minimum sentences and who had been granted probation, 81% of them successfully completed their probation.

Second, when an offender is sentenced with a custodial sentence, the sentence stands as a conviction in his or her record. On the other hand, if an offender is placed on probation, it will not be deemed as a conviction for the record. For young offenders, this will greatly facilitate their rehabilitation within the community.

Young offenders are more likely to be in school or higher institutions of learning or at early stages of employment. By placing them on probation, we allow them to continue with their education or employment. Furthermore, they will benefit from the personal care, guidance and supervision of a Probation Officer. It will give them the opportunity to turn over a new leaf, and become a responsible member of society.

This amendment will allow those who are deemed suitable by the courts to be put on probation. Only those with relatively stable family backgrounds, good school or employment records, and no previous delinquent traits are considered for probation. I have no doubt that the courts, which have always been careful and selective when considering offenders for probation, will continue to do so.

Sir, I beg to move.

Question proposed.

Mr Chiam See Tong: Sir, I cannot support this amendment to the Probation of Offenders Act. My objection is in clauses 2(a) and 3(a). Firstly, it is in respect of the age limit. A young person between 16 and before attaining the age of 21 and without a previous similar conviction can only get probation under this Act. This age is taken on the date of conviction. I think that it would be more proper if this age, especially the upper limit of 21 years, should be taken at the date of the offence. We can think of many situations where a person has committed an offence and he has not been apprehended for some reason, or he has gone away, or sometimes, although he has been arrested, police investigations take a long time and he has exceeded 21 years; or on other occasions where he has committed the offence, but there was very late reporting. So in all these situations, we can envisage that the upper age limit would have been exceeded, and therefore he would not be able to get a probation order or an order of discharge if this amendment comes about. For these reasons, I would suggest that it would be fairer if the age of 16 but not having attained the age of 21 years be taken at the date of the commission of the offence, rather than on the date of conviction.

The other objection to this amendment is the upper age limit. We have seen many court cases in which an offender, even on attaining the age of 26 years, comes from a good family background and there is a chance of rehabilitation. He has got proper training and he is on his way to turning a new leaf. It is still possible to rehabilitate that person, especially in our Asian society where the family is so supportive, even at the age of 25 or 26 years. So I say it would be fairer if, instead of taking the upper limit at 21 years, the upper limit is increased to 25 years.

In 1984, the Penal Code was amended to take away the discretion of the Judge in sentencing because mandatory minimum sentences were imposed. At that time, in the debate, the Minister did mention that if there was a deserving case where an offender had committed an offence in which a mandatory minimum sentence should be imposed and the accused person was a deserving case, there was still this provision that he could still be given a probation or a discharge. But now with this amendment, I think the chances of getting a probation, where there is a mandatory minimum sentence to be imposed, are almost nil. So that escape route, where there is a deserving case, there is no possibility of making a probation order.

Mr Kenneth Chen Koon Lap (Hong Kah GRC): Mr Speaker, Sir, I rise to support the Probation of Offenders (Amendment) Bill.

First, I must stress that I firmly believe that criminals who committed serious offences such as robbery, extortion, housebreaking, should be severely dealt with by the law. Therefore, I fully support the provisions that are in place in the Penal Code for mandatory minimum sentences for such offences. We must send the right signal to those would-be criminals that if they commit such offences, the full impact of legal sentence must bear on them and that they are old enough to be responsible for their own action. The message must be that crime does not pay, and this is how Singapore has always maintained one of the lowest crime rates in the world.

However, I realise that some of these young offenders who committed offences which attract mandatory minimum sentences may not really be callous in nature. They may be offenders without delinquent traits. To impose such harsh punishments may be inappropriate and counter productive. More importantly, we would lose all opportunities to rehabilitate them within the community. I am satisfied that juveniles between the age of seven and 16 years would continue to benefit with probation as well as they will be dealt with under the provisions of the Children and Young Persons Act and they are not affected by the Chief Justice's ruling.

My real concern is those young offenders between the age of 16 and 21 years. Although it is debatable whether they are to be considered juvenile and not as adult offenders, we must realise that many of them are still growing up and could have got involved in crime as a result of various mitigating factors and circumstances, like peer influence, peer pressure and the desire to seek thrills and excitement or even given in to a weak moment of impulse or greed.

When such a young offender under 21 years of age, without criminal traits, comes from a relatively stable family and personal background, for example, with a good school record and employment history, he should be a candidate to be considered for probation, especially when he knows that he is wrong and shows determination to repent. He should be given all the help under probation.

I disagree at this point that the age, as suggested by the Member for Potong Pasir, should be raised to 25 years old, because I think there must be a certain bar for such consideration. If we were to raise it to 25 years old, then what about 30? Are you saying that those who are 30 years old are not repentant and that they are not rehabilitative? So I would stick to the age of 16 to 21 years.

Sir, appropriate supervision and personal care by the probation officer can have a salient effect on such young offenders. I must commend the Minister for his goodwill and understanding in providing a chance to young offenders to redeem themselves through probation and introducing the amendment, so that the Judge and Magistrate can have the discretion to decide on a case-by-case basis.

I am extremely pleased to note that the success rate of young adult probationers completing supervision without further trouble is good - as high as over 80%. Nevertheless, I would request the Minister to carry out a survey on those who will benefit from the amendment, so as to find out what percentage of such young offenders steer clear of trouble during their probation period.

Mr Yeo Cheow Tong: Sir, I would like to thank the Member for Hong Kah GRC, Mr Kenneth Chen, for his support for the Bill.

Sir, I would definitely ask my officials to monitor those who are granted probation to see what are the effects of the probation on them in terms of their rehabilitation.

With regard to Mr Chiam's two points, first, I would like to clarify that only offenders who are guilty or who have been convicted of serious offences are denied probation, ie, they are convicted and sentenced with a mandatory minimum sentence and therefore they are denied probation. Sir, these are for very serious offences, like rape, robbery, being part of a syndicate in extortion, and so on. For the other lesser offences they are still eligible for probation.

Sir, with regard to his point that the age limit should be considered at the point of the offence rather than on the date of conviction, we had taken that point into consideration when we were reviewing the amendment and we looked to the United Kingdom for guidance. We studied the experience and the legislation in the United Kingdom. What we found was that in the UK they have stuck to this definition, which is the date upon conviction. I think there are good reasons for that. This is to ensure that those young offenders who commit serious offences are not given the incentive to go into hiding for as long as possible. Here, if they commit a serious offence and the Police are looking for them, the incentive is for them to really come out as quickly as possible, give themselves up and be subjected to the court's decision as quickly as possible. I think that the UK's practice has been a time-proven one. Since most of our laws are adapted from the UK model, it is wise that we stick to the UK practice.

Sir, the second point is that the upper age limit be moved higher to 25 years. As I have explained just now, this applies to offenders who have committed very serious offences. In granting probation, we have taken into consideration the fact that the young offenders are likely to be less mature, more easily misled by companion, and therefore we give them the benefit of the doubt and grant them probation.

Sir, it will be difficult for us to assume that those above 21 years are still immature. In fact, with modern education, I would say that most people in their late teens are already fairly mature. But, nonetheless, we have used 21 years as a cut-off point and I would urge the House to stick to this age limit of 21, rather than move it higher, because there must always be a cut-off point. The key point to take into consideration is this. Is 21 the appropriate age where a person is mature enough to be responsible for his own action, especially when he is committing a very serious offence?

Mr Chiam See Tong: Sir, can I get a clarification from the Minister? He says that the Ministry has looked into the UK's experience and decided to stick to the age of 16 to 21 years. But I am sure the UK has not got so many mandatory minimum sentences in their criminal law, as we have in Singapore. The 1984 amendment covered a wide range of offences and sometimes even for petty offences the Judge has to impose a mandatory minimum sentence. And sometimes where there is a mandatory minimum sentence and the offence is not that serious, there is a good case to give a probation order. Under this amendment, I think it is going to be very difficult.

Mr Yeo Cheow Tong: Sir, the point that we must remember here is that only offences which are very serious in nature carry mandatory minimum sentences, eg, rape, robbery. The less serious offences do not normally carry a mandatory minimum sentence. Therefore, those who commit less serious offences are still eligible for probation. We are talking here of offenders of serious offences.

Mr Chiam has mentioned that he has read the Hansard with regard to the amendment to the Probation of Offenders Act in 1984. The Minister at that time, Mr Chua Sian Chin, had stipulated the six categories of offences which carry mandatory minimum sentences.

Mr Chiam See Tong: Sir, can I get a clarification? The Minister refers to the 1984 amendment and the debate on it. If he will remember, in fact it was, I think, the hon. Member, Mr Chandra Das, who pointed out that even a youngster who stole a hubcap of a motorcar was subject to a mandatory minimum sentence, because it was part of a motor vehicle. And in such a case, if there is an amendment here and his age is slightly over 21, he will not get the chance to have a minimum sentence or if he repeats that similar offence. It is not a serious offence. It is only a hubcap of a motorcar.

Mr Yeo Cheow Tong: Sir, as I stated just now, there must be a cut-off point somewhere. Yes, if he is a youngster, 16-17 years old, who is caught stealing a hubcap, he is entitled to probation. But, of course, if he goes into hiding, he may not be. But the point that Mr Chua made at that time also was that the prosecutor had the flexibility of charging that offender under a different legislation but he need not charge him if that person was really of good character with no previous delinquent traits. The prosecutor can charge an offender under a different provision which does not carry a mandatory minimum sentence. So the flexibility is still there.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. - [Mr Yeo Cheow Tong].

Bill considered in Committee.

[Mr Speaker in the Chair]

Clause 1 ordered to stand part of the Bill.

Clause 2 -

Mr Yeo Cheow Tong: Sir, I beg to move,

(1) In page 2, line 8, to leave out "shall not", and insert "may".

Sir, this amendment, together with the next amendment, which I shall shortly move, is of a drafting nature. This is to make the section easier to read by avoiding the use of the double negatives "shall not" and "unless".

Amendment agreed to.

Amendment made:

(2) In page 2, line 9, to leave out "unless", and insert "if". - [Mr Yeo Cheow Tong].

Mr Yeo Cheow Tong: Sir, I beg to move,

(3) In page 2, lines 13 and 14, to leave out "the same offence", and insert "any such offence referred to in this proviso, and for this purpose section 11(1) shall not apply to any such previous conviction".

Sir, the expression "same offence" is ambiguous and can give rise to various interpretations. This amendment will make it clear that to qualify for probation, the young offender must not have any previous conviction for an offence which carries a specified minimum sentence or mandatory minimum sentence.

Sir, under section 11(1) of the Probation of Offenders Act, probation is not deemed a conviction. This amendment will make it clear that young offenders who have previously been convicted for an offence carrying a specified minimum sentence or mandatory minimum sentence and who have been granted probation shall not be eligible for probation should he or she commit a second offence carrying a specified minimum sentence or mandatory minimum sentence.

Amendment agreed to.

Clause 2, as amended, ordered to stand part of the Bill.

Clause 3 -

Mr Yeo Cheow Tong: Sir, I beg to move,

(1) In page 2, line 22, to leave out "shall not", and insert "may".

Sir, the amendments being proposed to clause 3 are similar to those proposed for clause 2 and are being proposed for the same reasons.

Amendment agreed to.

Amendments made:

(2) In page 2, line 24, to leave out "unless", and insert "if". - [Mr Yeo Cheow Tong].

(3) In page 2, lines 28 and 29, to leave out "the same offence", and insert "any such offence referred to in this proviso, and for this purpose section 11(1) shall not apply to any such previous conviction". - [Mr Yeo Cheow Tong].

Clause 3, as amended, ordered to stand part of the Bill.

Bill reported with amendments, read a Third time and passed.

Mr Speaker: Order. I suspend the Sitting and will take the Chair again at 3.15 pm.

Sitting accordingly suspended at 2.49 pm until 3.15 pm Sitting resumed at 3.15 pm