REGISTRATION OF CRIMINALS (AMENDMENT) BILL

Order for Second Reading read. 2.30 pm

The Minister for Home Affairs (Mr Wong Kan Seng): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

Introduction

Sir, this Bill amends the Registration of Criminals Act to establish a Deoxyribonucleic Acid (or DNA) database of criminals. The Bill also makes several amendments to update the Act.

The Registration of Criminals Act provides for the registration of criminals. The Act enables the Police to record into the Register of Criminals, registrable particulars such as the photograph, finger impressions, and conviction records of persons convicted of serious crimes like robbery, assault and housebreaking. The Register of Criminals is a very useful tool which aids Police investigations. The registrable particulars are especially useful in helping the Police to identify suspects. For example, finger impressions lifted from crime scenes are matched against finger impressions recorded in the Register, thus helping the Police to narrow down the list of suspects. The court also makes use of these criminal records when sentencing a repeat offender.

Setting up of DNA Database

Why do we want to set up a DNA database? Sir, the setting up of a DNA database of criminals will greatly enhance the Police's investigative capabilities. The probability of two persons having identical DNA profiles is extremely low, and could be as remote as one in a billion, depending on the race of the person. Body samples, such as blood, semen and tissue samples, found at the crime scenes can be used to profile the DNA of the person to whom the body sample belongs. Through a DNA database of criminals, Police will be able to determine if a body sample found at the crime scene belongs to an ex-criminal. When a suspect is found, it will also enable the Police to match the DNA profile with that of the suspect to help narrow down the list of crime suspects. This is especially useful in investigating crimes with very few leads for the Police to work on.

The use of DNA profiling to enhance forensic capability in solving crime is not new. Foreign law enforcement agencies, such as those in the US, UK and Australia, have been using DNA profiling for many years and DNA databases have been set up in these countries to aid police investigations.

Clause 5 of the Bill gives effect to the establishment of the DNA database and the taking of body samples for the purpose of DNA profiling. Clause 5 also specifies the purposes for which the collected DNA information may be used, namely, for forensic comparison with other DNA information and for any proceedings for any offence.

Definition of Body Sample

What is a body sample? Sir, a body sample is defined as a sample of blood, head hair with follicle and a swab taken from a person's mouth. Clause 5 empowers the Minister to prescribe the taking of any other body samples, such as saliva and skin cells. This is to cater for instances where it is not possible to obtain any one of the three types of body samples from a person because the person is a haemophiliac and suffering from severe mouth ulcers or is bald. However, there would be very few cases where we would not be able to take any one of the three types of body samples from a person.

Persons whom Body Samples may be taken from

Who can Police take body samples from? Clause 5 also empowers the Police to take a body sample from a person who is arrested and accused of a crime specified in the Act. This ensures that Police is able to compare the accused person's DNA information with the DNA evidence found at the scene of a crime. A body sample may also be taken from a person who is convicted of a crime or is currently serving an imprisonment term. However, those who have completed their sentences when the Act comes into operation will not be included as the Act will not apply retrospectively to this group of criminals.

Who can give a Body Sample Voluntarily?

Clause 5 also provides for persons who were at the scene of a crime, or are being questioned in connection with the investigation of a crime, to give body samples voluntarily. In practice, this provision would apply mostly to Police investigators who work at the scene of a crime and is intended to eliminate their DNA from the DNA found at the scene. The DNA from Police investigators would also be stored in the DNA database even after the case is closed. This is because Police investigators would invariably investigate new cases and it is not cost efficient or effective to re-take body samples from Police investigators for DNA profiling.

Who can take Body Samples?

Clause 5 also provides that only trained persons, such as a registered medical practitioner or an authorised officer, who have received training in taking body samples, can do so. In practice, all Police officers would be trained on the proper and safe taking of body samples. For example, Police officers would ask a person whether he is suffering from any blood disorder or blood-related disease. If the person informs the Police officer that he is a haemophiliac or suffering from other blood-related disease, the Police officer would take either a sample of the head hair with follicle or a swab from the person's mouth, rather than a blood sample.

Currently, the Act makes it a duty for every person legally bound to submit to having his photograph and finger impression taken to do so. Any such person who refuses to have his photograph and finger impression taken shall be guilty of an offence. The Act also empowers the Police to use necessary force to obtain the photograph and finger impression. Clause 5 extends these provisions to make them applicable to the taking of body samples as well.

Consent for the taking of Blood Samples

Must consent be sought before the taking of blood samples? Yes, consent must first be obtained before a blood sample may be taken from a person who is arrested and accused of a crime. However, there is no need for consent to be obtained before head hair with follicle or a swab from a person's mouth is taken for the purpose of DNA profiling. The difference in treatment is because the taking of blood from a person is more intrusive than taking of a head hair or a swab from the person's mouth. If a person refuses to give consent for his blood to be taken and offers no good reason for the refusal, the court may order the person to give the blood sample. The court may also draw inferences from the refusal and treat the refusal as corroboration, or amounting to corroboration, of any evidence against him.

Persons Acquitted or Discharged

What happens to the body samples of persons acquitted or discharged? Currently, the Act requires the Registrar of Criminals to destroy the photograph and finger impression of a person acquitted or discharged within three months from the date of acquittal or discharge. Similarly, clause 5 requires the Registrar to remove the DNA information of a person from the DNA database within three months of his acquittal or discharge. As the DNA information is stored in electronic form in the DNA database, removal of the information from the database is equivalent to the destruction of a physical record like a photograph.

Sir, let me now move on to the other amendments to fine-tune and to update the Act. Other Amendments relating to the Keeping of Records

New Definitions

Clause 2 of the Bill introduces several new definitions, namely "authorised officer", "other particulars" and "photograph". Currently, only police and customs officers may exercise the powers under the Act. This arrangement is not satisfactory because immigration officers have to seek Police's assistance to take registrable particulars of immigration offenders arrested. Also, as the Health Sciences Authority will be commissioned to operate the DNA database, officers from the Health Sciences Authority must also be allowed to take body samples. The new definition of "authorised officer" has thus been amended to cover the police, immigration, customs and other law enforcement officers, and a person so appointed by the Commissioner of Police. While the power to take registrable particulars and body samples would be extended to all immigration officers and officers from the Health Sciences Authority, in practice, only those officers tasked with the responsibility to take registrable particulars and who have received the proper training will be allowed to do so.

Sir, currently, "registrable particulars" means the particulars of any conviction, sentence, banishment, expulsion or deportation, and any name, description, photograph, or finger impression of any person so convicted, sentenced, banished, expelled or deported, as the case may be. However, the Act also empowers prisons officers to record a more detailed description of the prisoner convicted of a crime, such as his sex, age or apparent age, bodily appearance, height, distinctive marks on his body and any other available information that helps to identify the prisoner. Such information is very helpful in identifying a person, especially when a victim is trying to identify the culprit. For this reason, a new definition of "other particulars" is proposed to enable the authorised officers to record information other than the registrable particulars. Also, a new definition of "photograph" is proposed to enable the authorised officers to take photographs, including distinguishable body marks, such as tattoos and scars, which would be very useful for identifying criminals.

Upgrading of Automated Fingerprint Identification System

Police is upgrading the Automated Fingerprint Identification System, or AFIS in short, to allow for electronic capturing of finger impressions. When upgraded, the new AFIS will enable Police to search and match finger impressions more quickly. Currently, sections 8, 9 and 10 of the Act make reference to the sheet of paper upon which the finger impression is made. When the new AFIS is implemented, finger impressions will be captured electronically, instead of onto a sheet of paper. Clause 3 repeals and re-enacts sections 8, 9 and 10 to do away with the reference to the sheet of paper upon which the finger impression is made.

Increase in penalty for refusal to submit to taking of photograph and finger impression

Sir, the current penalty for refusing, without reasonable excuse, to submit to the taking of photograph and finger impression is a fine not exceeding $250 or a maximum imprisonment term of one month. This has not been changed since 1949 when the Act was first enacted. Clause 4 therefore increases the fine to a maximum of $1,000 to take into account rises in income level and to maintain the deterrent effect. No change is proposed for the imprisonment term.

Removal of registrable particulars of persons aged 100 years or more

Currently, the Registrar would remove the registrable particulars of persons whose death is registered under the Registration of Births and Deaths Act. However, as foreign offenders who die do not register under the Registration of Births and Deaths Act, the Register still contains records of foreign persons who may have passed away. For example, the Register now holds 18 names of foreign persons who are over 100 years old but the police is not able to determine if these foreigners are still alive. Clause 6 therefore empowers the Registrar to remove the registrable particulars from the register of criminals and DNA information from the DNA database of any person aged 100 years or older or whose death has been registered under the Registration of Births and Deaths Act.

Sir, technology advancements have opened new ways for us to fight crime. The police must harness these technological advances to enhance its capabilities to stay ahead of criminals. The DNA database and the upgrading of the AFIS will go a long way in improving the police's ability to fight and solve crimes.

Sir, I beg to move.

Question proposed.

Assoc. Prof. Chin Tet Yung (Sembawang): Mr Speaker, Sir, this proposed Bill, as the Minister stated, seeks to amend the Registration of Criminals Act. That seems to be an innocuous enough Bill. But the proposed amendments in the Bill actually go beyond mere registration. It has provisions that affect those who may be only suspected of a crime, but not yet charged, tried or convicted. It involves criminal procedures to obtain blood samples and other body samples from suspects, as distinct from convicted persons.

Given the application of the provisions to suspects, the title of the Act is somewhat misleading. My reaction to this is one of unease, because in provisions relating to criminal procedure, it has always been the practice to enact those provisions in the Criminal Procedure Code, where there is a comprehensive code covering all aspects of criminal procedure and investigation. It is therefore somewhat inappropriate to find matters of criminal procedure dealing in an Act which has a very innocuous title called Registration of Criminals. In any case, if someone asked what does that suggest to a layman, it suggests registration of convicted criminals, not of suspects. So, I hope that the opportunity will be taken to re-enact such provisions and to take them out of the Registration of Criminals Act in due course.

Second, naturally I would want to express my support in the setting up of this new DNA database as a means to combat crime. I think it is a good idea. But there are a couple of concerns that I hope the Minister can address.

First of all, the Minister has already explained that in the case of blood and body samples, which involve an invasive procedure in obtaining such samples, the consent of the suspect must be obtained. But, of course, he then went on to say that if the consent is not forthcoming, the suspect can then be taken to a magistrate and, there, the court can order the sample to be taken. With that I have no objections.

However, there is the additional sanction provided in the Act which is that if the suspect did not consent, adverse inferences could be drawn against him in terms of his liability or his guilt relating to the taking of such samples. In the past, drawing of adverse inferences, especially those laid down in the Criminal Procedure Code, requires a warning to be given to the suspect that if he did not give an explanation or a good reason, the court may draw adverse inferences against him. But in this particular proposed amendment, there is no such warning enacted, as can be found, eg, in the CPC (section 122). Therefore, a suspect may not really know what is going on. There would be no means of putting him in a position to be informed that adverse inferences could be drawn against him.

So I hope that in the enacting, not so much of this Bill, but in the enacting of the rules concerning this Bill, the Minister would take the chance to put in provisions relating to warning, as far as this consent element is concerned.

Next, I wish to raise a matter which I hope would have been dealt with in the Bill but which has not so far materialised. In the Budget debate earlier this year, a number of hon. Members, including myself, had brought up the issue whether people who are convicted of minor crimes should not, after a period of time, have their particulars removed from the Register of Criminals. The reason is that there have always been problems for them finding jobs, and they were hardly given a chance by employers and who are always, it seems to me, adversely affected by the stigma of having been convicted of a crime, no matter how minor.

The Minister had explained that the removal of particulars from the Register today in the Bill only relates to those 100 years and above, and do not really take into account this category of persons who have just been convicted of minor offences. I hope the opportunity will be taken to amend the Act relating to this group in future.

Sir, with those concerns, I support the Bill.

Mr Chandra Mohan K Nair: Mr Speaker, Sir, the Registration of Criminals (Amendment) Bill introduces the deoxyribonucleic acid (DNA) tests into the criminal law. The DNA information, ie, the genetic information derived from the forensic DNA analysis of a body sample is being introduced to assist the law enforcement agencies and the prosecuting authorities to investigate and obtain evidence against accused persons. There is also a provision in the proposed section, ie, section 13(C)(3) which provides as follows:-

"Where it is shown that the appropriate consent required under subsection (1) for the taking of a sample of blood from a person was refused without good cause, the court, in determining -

(a) whether to commit that person for trial in connection with the crime of which he is accused of committing;

(b) whether there is a case to answer against that person; or

(c) whether that person is guilty of the crime with which he has been charged,

may draw such inference from the refusal as it thinks proper and, based on such inference, may treat the refusal as corroboration or amounting to corroboration of any relevant evidence against that person."

In this regard, I am in agreement with Assoc. Prof. Chin Tet Yung who made the observation that this is a matter of concern.

There is therefore the introduction here of an almost or close to the concept of "presumption of guilt" in a sense, if the accused does not cooperate in giving his DNA sample. Because of these powers being conferred, the enforcement and prosecuting authorities must ensure there are enough safeguards and proper checks and balances so that there is no opportunity for potential abuse to the detriment of accused persons, and to ensure that there is proper administration of justice according to the rule of law.

It would therefore be prudent that proper warnings of adverse inference be administered to the arrested or accused person along the lines of section 122(6) of the Criminal Procedure Code about adverse inference and, in this case, with the appropriate modifications of course. Section 122(6) provides as follows:

"Where any person is charged with an offence or officially informed that he may be prosecuted for it, he shall be served with a notice in writing, which shall be explained to him to the following effect:

'You have been charged with/informed that you may be prosecuted for ...' and the charge is set out."

And the question will be asked:

"Do you wish to say anything in answer to the charge? If there is any fact on which you intend to rely in your defence in court, you are advised to mention it now. If you hold it back till you go to court, your evidence may be less likely to be believed and this may have a bad effect on your case in general. If you wish to mention any fact now, and you would like it written down, this will be done."

So this is a precautionary measure that is very useful, and the courts would take into cognisance this fact whether the accused did give his defence or not.

Perhaps, Mr Speaker, Sir, clause 3 relating to section 10(b) of the Act could also be modified as follows:-

"(b) the Registrar shall cause the finger impressions, photographs and registrable particulars that he had received in respect of that person under section 8(c) to be destroyed ..." and I would add these words:

"... and the Registrar shall notify in writing to that person within 14 days".

This is to ensure fairness to that person who has been acquitted or discharged without a conviction being recorded against him. It is also to ensure the efficiency of the Registrar of the Register of Criminals, and to ensure that he complies expeditiously with the duties under this Act.

I would also suggest, as an alternative, that a provision be added to require the Registrar to return the record of photographs and finger impressions and registrable particulars to the person concerned. If he or she does not want them, then the Registrar shall destroy them. This was the case when the Registration of Criminals Act was passed in 1949 in the Legislative Council of the Colony of Singapore.

Clause 5 gives far-reaching powers to the "authorised officer in charge" to take body samples of persons arrested and accused of a crime, or convicted of a crime, or is serving his term of imprisonment in connection with a crime of which he has been convicted. These are provided for in the proposed section 13B of the Act.

The accuracy of the DNA tests and the proper and competent management of the samples taken must be observed carefully, and it is the responsibility of the relevant Government authorities that there is absolutely no abuse. Are we absolutely sure that DNA tests are accurate enough? Do we have enough competent officers, both scientific and law enforcement officers, to carry out these tasks? There must be proper training for these officers, so that the system is respected. I do hope that investigating authorities would still rely on the age-old tool of proper and thorough investigation in any case, big or small, to arrive at the truth of any case.

Mr Speaker, Sir, I now refer to clause 6 (section 13H), which provides as follows:-

"The Registrar shall remove from the register and from the DNA database the registrable particulars and DNA information of any person -

(a) whose death has been registered under the Registration of Births and Deaths Act (Cap. 267); or

(b) who, the Registrar is satisfied, has attained 100 years of age."

This so-called concession is really of very little value to the person whose registrable particulars and DNA information are kept by the said Registrar. I would propose that for the details about the "registrable particulars" the age should be reduced from 100 years to, say, 55, or use a different criterion, namely, to remove the "registrable particulars" 10 years after the date of conviction by a court of law (for non-custodial cases) or 10 years from release from prison. Most human beings do not live beyond 80 years of age and, therefore, 100 years is not a practical age.

The proposal I am suggesting will give a more realistic approach to wanting to give a clean slate to the convicted person and to remove the stigma and bad image that is connected to any form of criminal record. Everyone deserves a second chance in life and hopefully through such amendments, the State is seen to be compassionate and caring to its citizens who may have committed some crime at a younger age.

Mr Speaker: Order. I propose to take the break now. I suspend the Sitting and will take the Chair again at 3.20 pm.

Sitting accordingly suspended at 3.00 pm until 3.20 pm. Sitting resumed at 3.20 pm