Articles - Page 2 of 11 - Amarjit Sidhu Law

June 28, 2022

Does sexual consent also apply to drunk people?

In previous articles, we explained the meaning of consent as well as sexual offences. Based on a recent case in Singapore, we will explore whether consent also applies if the victim of an alleged sexual offence was drunk.

In his oral judgement on the case, the judge noted from a previous apex court decision that the mere fact that the alleged victim was intoxicated was not enough to establish a lack of capacity for consent.

Definition of sexual consent

Consent is the voluntary agreement to engage in sexual activity. It must be freely and actively given and can be withdrawn at any time. Consent may be given by words or actions (or a combination of both).

Does consent apply when one of the parties is drunk or under the influence?

The common understanding of consent is that it must be given by someone who is capable of understanding the act and its consequences, which means being able to make decisions about what they want to do. A person who is extremely drunk may be impaired in judgement and may not remember what’s happening. If a person attempts sexual activity with someone who’s drunk or drugged—without first obtaining explicit verbal consent—then this could result in rape charges.

Highlights from the case

“She appeared to be inhibited and said that she did not remember the sexual encounters due to an alcoholic blackout, but it did not mean that she was not able to perform cognitive functions,” said the judge.

The judgement referred to expert evidence estimating that she would have had a blood alcohol level of between 164 and 182mg/100ml around 3am to 4am when the incidents took place. By comparison, the legal limit for driving is 80mg/100ml.

He added that, based on expert opinion, “alcohol-induced blackout merely means that alcohol has affected the ability of the brain to encode memories, and that a person experiencing alcohol-induced blackout may still retain the ability to understand the nature and consequences of their actions.”

The judge added that the “ultimate inquiry” was not whether she was intoxicated but if she had lost the capacity to “understand and decide”. He provided several instances from the evening of the incident to illustrate this point.

One was when she repeatedly rejected her friend’s offer at the bar to drive her home, saying that it was to avoid worrying her friend, which showed that she could look beyond her immediate needs and consider her friend’s. Because of this and other factors, the prosecution failed to prove beyond a reasonable doubt that she lacked the capacity to consent, he added.

The importance of objective evidence

There are two main types of evidence: objective and subjective. Objective evidence is the type that can be measured or observed by a third party. This can include, but is not limited to:

Text messages between you and your partner;
Photos or videos documenting the sexual activity in question (if it’s consensual);
A witness who saw you giving consent

One crucial aspect of this case that led to its clear resolution was the existence of “objective evidence” in the form of audio recordings from the in-car camera.

The judge said that the accused’s account was materially consistent with the first statement he gave to police after the arrest, and was also corroborated by the audio recordings. This objective evidence is very important as it gives the court “a clearer glimpse into the demeanour and behaviour of the complainant”. Without such evidence, establishing the facts of the case will become more complex.

Consent, like any other element of a sexual offence, is not a binary concept. There is no clear line between drunk and sober, and the law requires that all of the facts be considered in each case to determine whether consent was given. If you’re currently in a situation that mirrors this article, then it’s best for you to speak to a lawyer who can help guide you.

Engaging a Lawyer

Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years, from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.

May 2, 2022May 2, 2022

What types of Detention Orders are used in Singapore?

A detention order is a court sentence that requires the offender to be detained in a specific place for a certain period of time. However, unlike a prison sentence, which follows a basic prison schedule for the inmate, detention orders tend to have specified conditions that the offenders will need to follow, such as attending rehabilitation programmes.

The main difference between a detention order and remand is the former is only given out after someone has been found guilty of a crime, while remand is detention of a person in a prison cell before the trial or police investigations have started. In Singapore, the police detention period can last up to 48 hours after which, the accused can be released on bail, unless the court rejects the bail for further investigations.

There are generally seven types of detention orders used in Singapore.

Detention Order for Youths
Weekend Detention Order
Short Detention Order
Home Detention Order
Preventive Detention Order
Preventive Detention under ISA
Detention Without Trial

Detention Order for Youths

For offenders below the age of 16 years, a Detention Order (DO) will be issued and the offender can be detained under a DO until the maximum age of 18. Unless the child really cannot be dealt with, courts usually won’t place children under 10 years old in detention.

If a young offender is found guilty of committing a crime, the Youth Court can order the offender to be detained for up to six months at a place of detention for troubled youths. If the Youth Court orders detention along with a probation order, then the detention period will not exceed three months. This will then be followed up by the probation order. However, if the youth is found guilty of a serious offence that would result in a long jail term, then the youth may be detained the same number of years, and then subsequently moved from detention centre to prison.

If the offender is found guilty of another offence while serving detention, the Youth Court may extend the detention order.

Weekend Detention Order

The court may issue a Weekend Detention Order (WDO) for youth offenders where they will be detained in a place of detention for a specified number of weekends, with the maximum of 26 weekends, of half a year.

With a weekend order, the youth will only be detained at a specified detention place from 3:00 p.m on Saturdays until 5:00 p.m on Sunday. During this period, the youth will be required to undergo programmes from academic, holistic development to rehabilitation while for the rest of the week, they will be able to continue attending their school or work as usual. Depending on the case, the court may also impose a probation order, community service order or a fine, together with the weekend order.

Short Detention Order

For offenders above the age of 16 years, the court may issue a Short Detention Order (SDO) where the offender will be detained in prison for a maximum of 14 days. An SDO is usually meted out by the court for minor offences, with the rationale that SDOs will limit the detention period of low-risk offenders, reducing the stigma of prison and criminal records and thus, allowing the offender to rehabilitate without disruption to their education, job or family commitments.

Due to its nature of being a community service-based order, SDOs do not carry a criminal record. However, if the SDO is breached, the court may revoke the SDO and impose a prison sentence on the offender instead.

Home Detention Order

Also commonly known as a ‘house arrest’, a Home Detention Order (HDO) is issued to offenders with the purpose of confining them in their home, under strict curfew rules. Technically, prisoners who have served at least 14 days of a prison sentence longer than 4 weeks are eligible to serve the rest of their sentence under home detention instead of prison as part of an initiative to prioritise their rehabilitation.

During the HDO, offenders will have to remain indoors for the duration specified in the order and attend counselling or rehabilitation sessions, together with occasional urine and hair tests. The person will also need to wear an electronic tag to monitor their whereabouts. If the offender has breached their HDO, the Superintendent of Prisons may revoke the order and recall the offender back to prison.

Offenders are not eligible for HDOs if they are serving a life sentence, convicted for serious offences such as drug trafficking or attempted murder, or in the case of foreigners, if they are expected to be deported upon the completion of their sentence.

Preventive Detention Order

One of the more serious orders that are issued in Singapore courts. A preventive detention order is a three-stage order issued only when the court is satisfied that the offender may reoffend, and should be imprisoned to protect the public from this person. The duration of this order varies from 7 to 20 years and offenders are only liable for this order if they are above the age of 30, and certified mentally and physically fit for detention.

The offender must also meet at least one of the following:

Convicted of an offence that carries a jail sentence of at least two years, and was previously convicted at least three times since the age of 16 years and sentenced to either prison or corrective training at least twice; or
Convicted for three or more offences carrying jail sentences of at least two years, with prior conviction of the same offence, with at least one month in prison, since turning 16.

These offences could have been committed either in Singapore or overseas.

Stage one: between one to two years where periodic reports by the Superintendent Officer to the Commissioner of Prisons will determine the offender’s ability to proceed to the next stage

Stage two: the offender will be allowed privileges enjoyed by regular prisoners such as sending and receiving letters and allowing visitors. The offender will be able to move on to the final stage if the Commissioner considers and is satisfied with the offender’s conduct during the second stage and recommends the offender’s release on licence. If the Commissioner defers the decision, the case will be heard again in intervals of at least six months.

Stage three: the offender will live in modified security conditions to prepare their release and transition back into the community. However, the Commissioner may order the offender back to stage two if the conditions are not met. Upon release, the offender will still be expected to comply with the conditions in the licence or risk re-imprisonment.

Preventive Detention under the ISA

The Internal Security Act (ISA) allows the government to take quick action against any national security threats in Singapore. Preventive Detention under the ISA is only considered as a last resort and if prosecuting the offender might endanger witnesses, or expose intelligence and investigation methods.

Police officers can detain a person under the ISA for up to 24 hours without a warrant, and up to 48 hours with one. For offences that are not so serious, the offender may be released and issued with a Restriction Order (RO) that will prevent the person from leaving the country without permission. However, for serious offences, the detention may be extended up to a maximum of 30 days by an officer holding the rank of Superintendent of Police, and above.

The Minister of Home Affairs must be informed if the person is detained for more than 14 days, and the Minister can detain someone beyond 30 days only with the permission of the President. Detainees will also need to be given the reasons why they have been detained, in writing, and their families will be informed of their detention too.

Detention Without Trial

Last but not least, Detention without trial is for offenders above the age of 18 years. Under section 30 of the Criminal Law (Temporary Provisions) Act (CLTPA), the Minister for Home Affairs has the authority to detain a person without trial for up to a year if the detention is in the interests of public safety, peace and good order. The Public Prosecutor will have to consent to the detention, and it can be extended up to a year by the President.

Some criminal activities that fall under this category include:

Drug trafficking
Human trafficking
Secret society involvement
Robbery with firearms
Gang rape
Kidnapping
Murder

Besides committing these offences, aiding or abetting can also result in detention without trial. An advisory committee will review the detention order within 28 days and make recommendations to the President on whether the detention order should be issued. The President will then confirm or cancel the order. The police are also allowed to detain the offender for a maximum of 48 hours, which can be extended up to 14 days if more time is needed for the investigation.

If you are currently being issued with a detention order, you can also clarify with a lawyer what it entails.

Engaging a Lawyer

If you are currently in a situation that requires drafting legal documents like deeds and wills, mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.

Mr Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years from traffic offences, high-profile criminal cases – to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.

May 2, 2022

What You Need to Know About Writing a Will in Singapore

Writing a will is one way an adult can legally ensure their loved ones are taken care off if they happen to pass away unexpectedly. There is no specific time or age requirement to write a will so whether you’re a retiree, a single parent or even unmarried, you’ll be able to allocate your assets to family members who may need financial support or even appoint a legal guardian to continue caring for your child.

What is a Will?

Writing a will allows you to ensure your assets end up with the people you choose. A will is a legal document indicating your wishes regarding the distribution of your estate, and everything you own, as well as appointing care for your children, after your death.

In Singapore, the laws relating to wills can be found in the Wills Act 1838. If a person were to die without writing a will, then according to the Intestate Succession Act 1967, the person’s assets will only be distributed evenly among the deceased spouse and children (if married), and not necessarily to other specific family members, including parents or siblings, even if they may be facing financial hardships.

The main requirements to make a Will

For your will to be valid in Singapore, you will need to ensure:

You are at least 21 years old;
The will is committed to writing;
You must sign at the foot of the will, with 2 or more witnesses who must also sign the will in your presence;
The witnesses cannot be beneficiaries of the will;
Your spouse cannot be a witness

If you are unable to sign at the foot of the will, you may appoint another person to sign it on your behalf, but you will need to be present too.

What needs to be included in the Will

You’re required to list all of your assets and liabilities in the will. This means all the assets that you own, and which are registered in your name. The same applies for all your debts (if any) and how you want them to be paid off, before your assets can be distributed to your chosen beneficiaries. These assets include HDB flats, private apartments, plots of land or buildings, as well as investments such as shares, unit trusts and bank accounts and physical items such as furniture and ornaments, and many others. You should consult a lawyer if you’re looking for clarity in such matters.

You will need to name the executors to carry out your will, as well as your advisors such as your lawyers and accountants involved in the process. If you are writing a new will to replace an older one, you will need to include a revocation clause to revoke the previous will.

With a will, you can allocate specific amounts and percentages to your beneficiaries. If your beneficiary is too young, you can allocate them to a guardian. You are also allowed to include reserve beneficiaries in case your chosen one dies at the same time as you.

What About CPF Savings?

If you wish to transfer your CPF savings to another person after your death, you can only do so by making a CPF nomination. Otherwise, the amount will be transferred to the Public Trustee’s Office.

Reasons to write a Will

Besides appointing a trusted person to manage your affairs, a will also allows you to name a testamentary guardian to care for your children on your behalf, if they are still minors, after your death. In a simultaneous death situation, involving both you and your spouse, the testamentary guardian will be able to have custody of your children. Otherwise, anyone can apply to the court for their custody. If there are no applications for guardianship, the children will be placed in a home under the care of the Ministry of Family and Social Development (MSF).

Another reason for writing a will is to ease your spouse’s financial burden by specifying that you wish to sell a certain asset you own, to repay a loan or mortgage, after your death. If you are looking for more information regarding your situation, it’s best to speak to a lawyer who can guide you through the process.

Engaging a Lawyer

March 8, 2022

How to become a legal guardian in Singapore?

In Singapore law, a ‘legal guardian’ is defined as a person who is responsible for the welfare and safety of a child. There are two different types of legal guardians:

Natural Guardian: Parents
Appointed Guardian: Appointed by the court, a deed or will

The child’s parents are also guardians by default, but if one parent passes away, the other parent will become the child’s guardian.

It is also possible to apply to be the legal guardian of a child under the Guardianship of Infants Act (GIA). In the event where there was no deed or will appointing a guardian after the child’s parents have passed away, a legal guardian can also be appointed by the court.

Appointing a Guardian by Deed or Will

Also known as a “testamentary guardian”, it is possible for a guardian unrelated to the parent or child to be appointed via a will to be the legal guardian of the child under section 7 of the Guardianship of Infants Act (GIA). This can include a distant relative or even a close family friend appointed in a deed or in the parent’s will. Whether both guardian and child are based in Singapore, or overseas with the court’s permission, they will be required to live together.

Guardian application process

If you wish to apply to be appointed the legal guardian of a child, you may do so under the GIA provided you are living in Singapore. You are not required to be a family member, or directly related to the child or parent.

Generally, it is best to go through this process with a family lawyer. The documents you will need to get started will be the Originating Summons and an affidavit to support it. The lawyer may also ask you for other documents that may be required, depending on your situation.

In a previous article, we explained how child custody works in Singapore after a divorce. In this context, if you are looking to amend an existing court order regarding custody of your child, you may be able to do so under the GIA by providing your lawyer with additional documents like your marriage certificate, for example.

What is a court-appointed guardian?

There are several possible situations where the court may make the decision to appoint someone as the child’s guardian. One scenario is the absence of a deed or will appointing a guardian if the child’s parents have passed away.

For court-appointed guardians, the duration of the whole process will depend on how complicated the circumstances are. Throughout this time, the child will be placed in foster care. To prevent this scenario from happening, it is always advisable to appoint a guardian by deed as soon as you can.

Engaging a Lawyer

March 8, 2022March 8, 2022

What happens when a child commits a crime?

In Singapore law, anyone under the age of 18 is referred to as a minor. However, if the child were to commit a crime, there is a minimum age where the child can be held responsible for their actions.

The Minimum Age of Criminal Responsibility (MACR) in Singapore is 10 years. Therefore, as long as the child is above the age of 10, they will be liable for any criminal offence they may commit and if they are below 10, the child cannot be sentenced or found guilty.

When does a child attain maturity?

If a child who has passed the minimum age commits an offence, it is then up to the court to decide – based on the facts of the situation, assessment of the child’s level of maturity, awareness of the severity and consequences of their actions – if the child can be held criminally responsible for the offence.

Did you know that in Singapore, words such as “conviction” and “sentence” can’t be used in cases involving children? This is to ensure that the child would not be stigmatised with a blemished record at such a young age.

What happens if a child is found guilty?

According to Sections 84A and 84B of the Children and Young Persons Act, If the child is found guilty of committing a crime by the Youth Court, no one will be allowed to broadcast or publish any information that could lead to the identity of the child such as their name, address or school.

This is one reason why news media coverage of cases involving children tend to leave out names, whether they are the victims or otherwise, and there will also be no pictures published. For example, If a newspaper happens to publish or broadcast such information while reporting on a case involving a child as the offender, the court can order the newspaper to remove it immediately. Beyond that, the editor, publisher and distributor may all also be held liable for an offence of non-compliance which may lead to a fine.

Can a child get a criminal record?

We previously explained what a criminal record is and how it works. For children, it will depend on whether the offence was a registrable or non-registrable offence. For offences that fall under the First and Second Schedules of the Registration of Criminals Act such as murder, theft and trespass, the child may have a criminal record. However, minor offences like jaywalking or littering will likely not leave a criminal record.

If the child had committed an offence and was ordered by the Youth Court to undergo probation, detention or rehabilitation, then his/her criminal record related to that crime will expire once the court order ends. This is also possible if the child was sentenced in the High Court instead of the Youth Court and has gone five consecutive years without committing a crime, but this only applies if the initial crime was just a minor offence like littering or causing mischief.

Can children go to jail in Singapore?

In Singapore, children under the age of 14 will not be imprisoned for any sentence committed. If the child is between the ages of 14 and 16, and depending on the severity of the offence and the Youth Court’s decision, the child may be:

Sent to a juvenile rehabilitation centre for up to 3 years;
Sent to a reformative training centre, if between 14 to 16 years old, and has already been sent to a juvenile rehabilitation centre;
Detained in a place of detention for up to 6 months, eg. boys’ home;
Placed under probation for a period of 6 months to 3 years;
Required to perform up to 240 hours of community service.

While uncommon, it is still possible for a child to be imprisoned for an offence only in extreme circumstances where the child’s character or behaviour might justify imprisonment as a more appropriate measure than detention or juvenile rehabilitation. The Youth Court may also order the child, or the parent, to pay a fine or damages to ensure that the wrongful conduct committed is dealt with, besides assisting the child in rehabilitation.

What if children commit serious crimes?

In the unfortunate circumstance where the child has been found guilty of committing a grave crime like murder, attempted murder or voluntarily causing grevous hurt, and the court determines that the abovementioned orders are all unsuitable, then the court may sentence the child to be detained.

The detention period will be determined by the court based on sentencing guidelines for that particular offence and at a place and on conditions that may be decided by the Minister for Social and Family Development.

However, regardless of the severity of the offence, no person below the age of 18 can be sentenced to death. If he/she commits an offence that would otherwise lead to the death penalty, the court will sentence him/her to life imprisonment instead.

Can parents get in trouble too because of their child?

There isn’t any law for parents to be held liable for their child’s actions, but if the child is between 14 to 16 years old, the Youth Court may decide, under section 39 of the Children and Young Persons Act (CYPA) that:

The parent will have to give security for the child’s good behaviour if he/she is charged with any offence; or
The parent will have to pay the damages or costs ordered on behalf of the child.

Some parents may not have realised this yet, but if a child’s act causes damage, the child can be sued in his or her own right, and that also means the parents can be liable for the child’s mistakes if the act was a result of the parents’ negligence.

To provide an example, a child is walking outside with his parent, and the parent has to answer a call and thus gets distracted. The child takes this chance to wreak havoc on something nearby, but ends up injuring an innocent third-party. In court, the parent can be sued and found liable for negligence for failing to exercise proper supervision over the child.

However, if the child is on his own outside of school while the parent is at work, and the child injures someone innocent, then only the child will be liable as the parent wasn’t physically present to stop the child.

If you are currently in a situation that requires mediation or legal advice involving a juvenile, it’s best to consult a lawyer who will be able to guide you through your options.

Engaging a Lawyer

January 9, 2022

What is an Arrestable Offence and What Isn’t?

Sometimes, when scrolling through social media posts, you may come across videos or photos of incidents where a potential criminal act has happened, yet the person who committed it did not get arrested, or the police may have shown up but only recorded the identities of those involved.

A common reaction to such posts is that of general confusion about what is deemed a crime and what isn’t. However, it’s actually up to the police to determine if a crime is arrestable or not, based on a few factors.

Arrestable Offences

The main difference between an arrestable and non-arrestable offence is the requirement for an arrest warrant. By law, the police will need a warrant before they are allowed to make the arrest, and they will have to follow a specific arrest procedure. This means that even if it’s a non-arrestable offence, the police can still make the arrest once they obtain the warrant or if the victim decides to press charges.

However, for arrestable offences, the police are empowered by the law to arrest the suspect without a warrant, following the same arrest procedure. According to the Criminal Procedure Code (CPC), arrestable and non-arrestable offences are labeled as “may arrest without warrant” and “shall not arrest without warrant”. One way to remember this:

Arrestable: Offences punishable with 3 or more years of imprisonment, or death
Non-arrestable: offences punishable with less than 3 years of imprisonment, or with a fine

Examples of Arrestable Offences:

According to the Penal Code, here are just some examples of arrestable offences where the police can arrest the suspect without a warrant:

Murder, or a rash act, or an attempt that could cause death
Voluntarily causing grievous hurt, or using a dangerous weapon
Rash or negligent driving
Rape
Theft and robbery
Assault, or use of criminal force with intent to outrage modesty, such as molest
Criminal trespass
Committing an obscene act in public, unlawful assemblies, fighting in a public place or rioting
Impersonating, threatening or obstructing a public servant

A person can also be arrested if found to be an army deserter or possessing housebreaking tools without a good reason for doing so.

Most of the confusion between arrestable and non-arrestable offences in social media videos usually revolves around the difference between causing hurt, which is non-arrestable, and causing grievous hurt, which is an arrestable offence.

Non-arrestable Offences

If the police deem that the offence is non-arrestable, that doesn’t mean the suspect gets away. The police will recommend the victim to file a police report and a Magistrate’s Complaint at the Community Justice Tribunals Division (CJTD) for the Court to decide on issuing an arrest warrant for the suspect.

The police will then follow up by gathering witness reports, recording the identities of the parties involved and also ensure that any injured persons receive immediate medical treatment. Once the Magistrate decides that the case is worth pursuing, the police will then receive the warrant and proceed to arrest the suspect.

Engaging a Lawyer

If you are currently in a situation where you’re still unsure of the difference between an arrestable and non-arrestable offence and need to speak to a legal professional, it’s best to consult a lawyer who will be able to guide you through your options.

Mr. Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years, from traffic offences, and high-profile criminal cases to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr. Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.

Additional Resource: https://singaporelegaladvice.com/law-articles/arrestable-or-not-seizable-and-non-seizable-offences-in-singapore/

January 9, 2022

Sexual Harassment and the Effects of the Protection from Harassment Act (POHA)

Sexual harassment is defined as the making of unwanted sexual advances and can take many forms, including but not limited to, physical or verbal bullying, sexual coercion or the inappropriate promise of rewards in exchange for sexual favours.

The Protection from Harassment Act (POHA) of 2014 was enacted to provide a variety of criminal and civil remedies against such acts. Its purpose is to protect people from harassment, stalking, cyberbullying, and other anti-social and undesirable behaviours.

The legislation was recently amended to strengthen the existing penalties for harassment. In response to sexual harassment, it introduced new offences such as unlawful stalking and provided a range of self-help measures, civil remedies, and criminal sanctions. POHA has been a critical legislative tool in protecting harassment victims by providing them with effective redress. According to a press release from the Ministry of Law, more than 1700 prosecutions and over 3000 Magistrate’s Complaints have been filed under the Act.

It is critical to distinguish harassment from mutual flirting or consensual romantic relationships. It encompasses a wide range of behaviour and is not limited to physical conduct. Surprisingly, the term “sexual harassment” is not legally defined. The POHA will, however, prosecute a few standard offences. Here are the various types of offences covered by POHA

Non-physical Offences

This includes verbal abuse and lewd remarks, intentionally causing harassment, alarm, or distress through threatening, abusive, or insulting words, behaviour, or communication, according to Sections 3 and 4 of the POHA. The POHA also provides examples to demonstrate this.

The maximum penalty for intentionally causing harassment, alarm, or distress is a fine of up to $5,000 and/or a 6-month prison sentence. For repeat offenders, the maximum penalties are doubled.

Even if the accused had no intention of harassing, alarming, or distressing the victim, he or she can still be prosecuted under Section 4 of the POHA. For example, if X makes comments about Y on a widely accessible social media platform that causes Y distress, X will be found guilty even if he/she had no intention of distressing Y.

Such an offence will attract a fine of up to $5000. Repeat offenders may expect enhanced penalties of up to a $10,000 fine and/or an imprisonment term of up to 6 months.

Causing fear or provocation of violence

This offence is distinct from the threat of physical violence because harassment, alarm, or distress are examples of non-physical harm. It is a crime to intentionally lead someone to believe or act in a way that leads them to believe that unlawful violence will be used against them.

For example, if X makes threatening and abusive remarks on a publicly accessible website, followed by a post containing Y’s identity information and threats to physically attack Y, then X has committed a crime by threatening physical violence.

The maximum penalties for instilling fear or inciting violence are a $5,000 fine and/or a 12-month prison sentence. For repeat offenders, the maximum penalties will be doubled.

Unlawful stalking

Section 7 of the POHA makes unlawful stalking a crime. It includes stalking-related acts or omissions that cause the victim to feel harassed, alarmed, or distressed. The court will consider whether the accused person:

a) intended to harass, cause alarm, or distress the victim; or

b) had known, or ought reasonably to know that his/her conduct was likely to harass, alarm, or distress the victim.

Some examples of stalking include:

Following the victim or a related person;
Making, or attempting to make communication with the victim, relating to the victim, or purporting to originate from the victim;
Entering or loitering in any place (whether public or private) outside or near the victim’s residence or place of business or any other place frequented by the victim;
Interfering with property in the possession of the victim;
Giving or sending material to the victim, or leaving it where it will be found by, given to or brought ot the attention of the victim; and
Keeping the victim under surveillance

These are some examples to illustrate what constitutes unlawful stalking pursuant to the POHA provisions.

Y repeatedly sends emails to Y’s subordinate (X) with suggestive comments about X’s body;
Y sending flowers to X daily even after X has asked Y to stop doing so
Y repeatedly circulates revealing photographs of a classmate (X) to other classmates

Perpetrators may be subject to a fine of up to $5,000, imprisonment of up to 12 months or both, with maximum penalties doubled for repeat offenders.

Doxxing

Doxxing is to publish a person’s personal information with the intent of harassing, threatening, or facilitating violence against them. This law is aimed to enhance victims’ protection against undesirable online behaviour. Sharing one’s personal information on social media and asking others to “teach them a lesson” is an example of doxxing.

Publishing any information revealing the identity of the target person or their relations is considered harassment under sections 3 and 4 of the POHA. An intention to harass may be found on the facts if this is done in the hope of shaming or distressing the victim.

Publishing someone’s personal information with the intent to harass may result in a fine of up to $5000 and/or a 6-month prison sentence. Repeat offenders face double the maximum penalties.

If the post was intended to cause or facilitate violence or physical harm, the maximum penalties are a fine of up to $5,000, imprisonment of up to 12 months, or both.

Voyeurism

The number of charges filed against perpetrators who deliberately and wilfully invade the victim’s privacy has increased in recent years. For example, the highly publicized Monica Baey case, in which a man secretly filmed a woman showering, made headlines and brought to light a common problem afflicting women in Singapore.

Previously, voyeurism could only be prosecuted under Penal Code Section 509 for insulting a woman’s modesty. However this time, Singapore’s Penal Code has been amended to include Section 377BB in order to broaden the scope of the law. The following acts are now classified as voyeurism under this section:

Intentionally observing the victim doing a private act, knowing and believing that the victim does not consent to being observed. This includes the classic “peeping Tom” act.
Operating equipment, such as binoculars, to enable one to observe the victim doing a private act. An example would be watching the victim change clothes without his/her consent and regardless of whether the private act was recorded.
Operating equipment, such as mobile phones, to enable one to observe the victim’s private parts without the victim’s consent and with the knowledge or belief that the victim does not consent to it. This includes using a mobile phone to look under victims’ skirts in public.
Recording an image of the victim’s private parts without the victim’s consent and with the knowledge or belief that the victim does not consent to it. This includes taking underskirt pictures or videos of victims in public.
Installing equipment such as a camera in the victim’s bedroom or in other private areas to enable one to commit any of the aforementioned acts.

If found guilty of voyeurism, one can expect a prison sentence of up to two years, as well as a fine or caning (or any combination of these). Minors under the age of 14 will be imprisoned for up to two years and fined or caned. Alternatively, they could be placed on probation. The defendant’s age is also an important factor in determining the sentence.

Physical offences

When sexual harassment takes the more egregious form of molest or rape, the Penal Code prescribes harsher penalties for the offender. Section 354 of the Penal Code defines what constitutes an outrage of modesty, and Sections 375 and 376 define what constitutes rape. These sections provide protection for both men and women.

The civil actions and orders relating to the above contraventions are as follows: Both individuals and entities can be held liable for harassment-related offenses.

Protection Orders

A protection order (“PO”) can prohibit the wrongdoer from continuing his or her wrongful order or from publishing specific communications. Counselling or mediation may also be recommended for the parties involved. Notably, POs and EPOs can be granted to people who are related to the victims as well as the victims themselves.

When a harasser is reasonably suspected of failing to comply with a PO or EPO, the police may arrest him or her without a warrant. Under the POHA, a victim may apply to the court for a PO against the perpetrator for the following offenses.

Intentionally causing harassment, alarm or distress under Section 3 of the POHA;
Harassment, alarm or distress under Section 4 of the POHA;
Fear or provocation of violence under Section 5 of the POHA
Threatening, abusing or insulting public servant or public service worker under Section 6 of the POHA; and
Unlawful stalking under Section 7 of the POHA

A Protection Order is a flexible remedy and the period of protection will vary according to the factual matrix of the victim. This will be influenced by the court’s discretion. The following are the factors the court will look at to grant a PO:

The nature and severity of the harassment
The perpetrator’s motive and purpose
How much emotional and psychological harm did the victim suffer?
To what extent is the harassment known to the public?
Whether the victim could have avoided the harassment
Whether the perpetrator genuinely tried to ensure that the victim would not misconstrue or misunderstand his/her actions and
Whether the harassment could be expected to be tolerated by reasonable people.

In urgent cases, one may also be able to get an Expedited Protection Order.

Expedited Protection Orders (EPOs)

This is a temporary order that will be in effect for 28 days from the date it was served on the respondent. It is usually granted based on the severity of the victim’s situation.

If a Protection Order or Expedited Protection Order is violated, the perpetrator will be charged with an additional offense under the POHA. In this case, victims can file a police report against the harassers. The harasser faces a maximum fine of $5000 and/or a prison sentence of up to 6 months if convicted.

Obtaining compensation for criminal offences

A convicted offender can be ordered by the court to pay monetary compensation to the person injured under Section 359 of the Criminal Procedure Code. However, compensation orders under the CPC have rarely been given for molest offences.

Parliament has seen fit to provide the victim with a civil cause of action for statutory torts for the offences of harassment, threats, and stalking under the POHA.

Enhanced penalties

Enhanced penalties may be imposed on accused persons who have an intimate relationship with the victim and are involved in a case involving vulnerable people. The maximum penalties for crimes against vulnerable people, particularly those with mental and physical disabilities, have been doubled, regardless of age.

An individual or entity, for example, who commits the offence of causing fear or provocation of violence against a vulnerable person can be fined up to $10,000 and/or imprisoned for up to 24 months.

In cases where the offender and victim have an intimate relationship, the court will decide whether or not both parties are in an intimate relationship based on the facts and circumstances.

The court will consider the following:

Whether or not both parties are living in the same household
Whether they share the tasks and duties of their daily lives
Remedies for victims of falsehoods

Stop Publication Orders

Under the recently amended POHA provisions, victims of falsehoods will be able to obtain remedies against falsehoods instead of just individuals.The court has the authority to issue a “Stop Publication Order” (“SPO”), which prohibits further publication of false statements. An SPO effectively requires offenders to stop publishing false statements by a specific deadline. This is in accordance with Section 15A of the POHA.

Additionally, an Interim Stop Publication Order (“IPSO”) may be granted under Section 16A of the POHA to expedite the issuance of a stop publication order. This is a temporary order that will only be in effect until it expires or is revoked by the court.

General and targeted correction order

General and targeted correction order requires the offender to publish a correction notice within a specified time, in a specified form. This requires the offender to publish a correction notice within a specified time, in a specified form.

Disabling order

This order requires an internet intermediary to block users’ access to content that allegedly spreads falsehoods. If the court believes it is necessary to expedite the issuance of such an order, an interim disabling order to the same effect may be issued while the disabling order is being sought.

The Protection from Harassment Courts

The recently amended POHA has resulted in the establishment of Protection from Harassment Courts in Singapore for harassment victims. These courts may hear both criminal and civil cases, with filing procedures and case timelines expected to be simplified.

Victims will be able to file more straightforward claims instead of an Originating Summons for claims of up to $20,000 in damages and applications for Protection Orders. Most applications for Protection Orders (POs) and Expedited Protection Orders (EPOs) will be heard by the Court within 4 weeks and 48-72 hours, respectively. This could be completed in 24 hours for more urgent cases.

Is it possible for overseas offenders to be prosecuted under the POHA?

It is possible to prosecute POHA offenders who are overseas if at the time of the offence,

The victim was in Singapore, and
The offender knew or had reason to believe that the victim was in Singapore.

For instance, where an overseas offender circulates revealing photographs of a victim (who is in Singapore) knowing that the victim studies in Singapore, may be charged and convicted of unlawful stalking in Singapore.

Engaging a Lawyer

If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.

Mr. Amarjit Singh Sidhu of Amarjit Sidhu Law Corporation has represented numerous clients in a wide variety of matters over the years, from traffic offences and high-profile criminal cases to family and divorce matters. With a vast knowledge of Singapore’s laws and a wealth of experience, Mr. Amarjit Singh Sidhu will be able to provide valuable and timely advice for your situation. For more information, feel free to contact us for a consultation.

November 23, 2021

What is Mandatory Counselling?

Usually with disputes involving family members, the litigation process may not always resolve the situation. One way to help family members or related parties reach an amicable settlement in their dispute is usually through counselling.

However, did you know that in certain circumstances, the court may order that counselling be made compulsory as an attempt to resolve the case?

Mandatory Counselling Order

In cases where individuals and families are dealing with challenging legal issues, they may be issued with a court order that will require the parties to attend counselling sessions as a means to provide therapeutic support for their situation.

The counselling order is usually issued in cases involving:

Divorce Proceedings for couples with at least one child below 21 years old
Family violence – administered by the Ministry of Social and Family Development (MSF) to keep family members safe by teaching them ways to resolve conflicts amicably, this order may also be issued with a Personal Protection Order (PPO).
Young offender – the Youth Court may issue an order for both the youth and parents to attend counselling to resolve conflicts or for rehabilitation purposes
Youth in need of protection or state intervention by MSF’s Child Protective Service (CPS) if it involves serious child protection concerns or cases of sexual abuse, severe injuries inflicted by a parent or signs of serious neglect. In such cases, the child may also be placed in foster care. For less serious cases, the child may be referred to a community-based Child Protection Specialist Centre (CSPC) for support and improvement on parenting, caregiving methods and counselling to strengthen the relationship between parent(s) and child.
Pre-Abortion – under the Ministry of Health’s Guidelines on Termination of Pregnancy, all pregnant women are required to undergo mandatory pre-abortion counselling regardless her nationality to ensure she’s making an informed decision before proceeding with it.

Cases Involving Youths Below 16 Years Old

The Youth Courts may issue an order according to section 44 of the Children and Young Persons Act (CYPA) for youth arrest cases which can include community service or a stint at a juvenile rehabilitation centre.

The Youth Court may also add other orders for the youth and their parents or guardians too if necessary to resolve their relationship problems; assist in rehabilitating and managing the young offender and to enhance, promote and protect the physical, social and emotional wellbeing and safety of the young offender.

What To Do When You Are Issued With a Counselling Order?

For a divorce proceeding involving parents of at least one child below 21 years old, the parties will have to meet with a Court Family Specialist (CFS) from the Counselling and Psychological Services for Counselling and a court-appointed mediator to resolve any disagreements over the divorce and issues related to maintenance. These sessions only involve the couple without the lawyer’s presence.

For cases involving a Personal Protection Order (PPO) issued together with the Counselling Order like family violence, the court will inform you of the objectives of counselling and the consequences of not attending it with the date and time when you have to return for the Court Review.

A counsellor from a Social Service Agency will contact you to set your first counselling appointment. The counsellor may also conduct an interview to better understand your situation and depending on the progress made during these counselling sessions, may also decide how many sessions will be needed, if there will be a need for individual and/or group sessions with family members or with people who have similar experiences – all as long as the Counselling Order is still in effect.

Failure to abide by a counselling order is equivalent to being in contempt of court which is a punishable offence by law. In cases involving youth offenders, parents or guardians may also have to execute a bond to ensure the youth complies with the order or they will be liable for a fine of up to S$2,000.

If you need more information on this matter, it’s best to speak to a family lawyer who can guide you through the process.

Engaging a Lawyer

If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.

Additional Resource: https://singaporelegaladvice.com/law-articles/mandatory-counselling-ordered-by-court/

November 23, 2021

What Should You Do Right After a Traffic Accident?

While we may have some of the most stringent requirements for obtaining a drivers’ licence with state-of-the-art traffic safety and surveillance systems in place, accidents still can, and do happen on our roads sometimes.

Those who are directly involved in such accidents, depending on the severity, may experience elevated levels of anxiety and confusion, and as a result, become completely unsure of what to do next. In this article, we will provide a simplified guide on what you should do right after a traffic accident, whether you’re directly involved, or acting as a witness.

Casualties at the Accident Site

If you are at the scene, check if there is anyone who is in need of medical attention. If there are bodies on the road, don’t move them by yourself. Make sure you call 995 immediately for an ambulance.

You should only call 999 for the Police too if needed in scenarios such as:

Hit-and-run case where the party leaves the scene without helping the victim
Victims injured badly enough that they may have to be taken to the hospital
Pedestrians or cyclists involved in the accident
Fatalities
Damage to public property due to the impact of the accident
Involvement of a foreign-registered vehicle

If you do need to make a police report, you should be as detailed as possible with all the information you have because the report can also be used as an official written record of the accident which your insurance company and lawyer will require when processing accident claims.

A general rule of thumb is the accident has to be reported to the police if the victim was given at least 3 days of medical leave. If the victim was hospitalised because of the accident, the police report can be made right after they have been discharged.

Besides visiting your nearest police station, you can also lodge your report via the police’s e-Traffic Accident Report service.

Gather the Contact Details and Evidence

The next thing you want to do is to exchange your contact information with the other party, preferably in a composed and civil manner regardless of the extent of the accident and whoever’s at fault, and gather evidence of the accident. You may also engage a lawyer who can guide you through the whole process.

Unless the other party in the accident is seriously injured, you should exchange your full name, NRIC number, mobile number, home address, and your insurer’s details with them. This also extends to the other parties involved in the accident such as passengers or bystanders and witnesses.

If the accident is severe enough where there might be a dispute over damages, it is advisable to gather as much evidence of the accident scene. This evidence can consist of:

Photos, preferably wide-angle shots of the accident scene and surrounding areas. If there are other noticeable signs of the accident such as skidmarks on the road or nearby debris caused by the accident, they should be visible in the photo
Footage recorded from your dashboard or in-vehicle camera if you have one
Note the date, time, and location of the accident scene, any nearby landmarks, as well as weather and road conditions during that period.
License plate numbers of the vehicles involved
Evidence of damage to your own vehicle from the accident, including your own license plate number in the shot
For accidents involving multiple vehicles, try to capture photos where both the front and rear vehicles are in the shot too.

You can also draw a detailed sketch of the accident scene and it will be accepted if the position of the vehicles relative to any nearby landmarks is clearly depicted, eg. to the side of a specific statue or building.

Please ensure that the vehicles are moved from the scene only after you have taken photographs of the accident, which you should conclude as quickly as you can, to minimise disruption to traffic. If the vehicles are moved before evidence has been gathered, it may affect the parties’ liabilities or claims for damages.

Your insurer should also be able to guide you if a tow truck is needed for your case and you should ask them to provide you with contacts of authorised tow trucks as there are unauthorised services being offered that may complicate matters if you are making a claim against the other party or worse, you may get scammed.

Another general rule of thumb is to always contact your insurance company within 24 hours whenever you’re involved in an accident whether you plan to claim damages from the other party or their insurer, or even if there isn’t any visible damage to your vehicle.

Claims for Damages

If you are making a claim for damage to your vehicle from the accident, you should also allow the other party to inspect your vehicle before the repair has started for transparency purposes when submitting third-party damage claims.

If you are claiming for personal injury or property damage due to the accident, you may also apply for the third party’s motor accident report from the General Insurance Association after filing your own motor accident report.

Engaging a Lawyer

If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.

Additional Resource: https://singaporelegaladvice.com/law-articles/what-to-do-in-a-traffic-accident/

October 4, 2021

Postnuptial Agreements in Singapore

Nuptial agreements between couples determine what will happen if the parties end up separated or widowed. Prenuptial agreements are made before the marriage and function like a contract between the couple covering practical areas such as maintenance, custody-related issues if there is a child involved, as well as the ownership and division of property.

Postnuptial agreements are written during the marriage and are a more accurate and updated reflection of the couple’s attitudes and intentions after the marriage. It is also presumed that postnuptial agreements are made after the couple have fully understood the responsibilities and expectations of married life. Because of this difference, the courts will generally give more weight to postnuptial agreements with a higher likelihood of it being enforced.

Difference Between Postnuptial Agreement and Deed of Separation

In a previous article, we explained what a Deed of Separation is and how to get one. The difference between that and a postnuptial agreement is that a deed of separation is for couples that already have the intention to separate, but have yet to meet the conditions for divorce.

A postnuptial agreement can be made by any couple, even if their relationship is fine and they have no intention to separate.

The other difference is that a Deed of Separation is a legally binding agreement that kicks in automatically once it’s signed whereas a postnuptial agreement may only be enforced by a court decision. The court may also choose to take the postnuptial agreement into account when deciding on the couple’s ancillary matters such as maintenance and child custody.

In the unfortunate event where a spouse dies, the postnuptial agreement also serves a secondary function as a will. The only difference is that while a will applies to anyone related to the deceased, the postnuptial agreement will only be applicable to the surviving spouse.

Common Terms for Postnuptial Agreements

There isn’t a standard template or list of items to include in a postnuptial agreement and generally, the terms will be up to the parties drafting it. Not all postnuptial agreements will be automatically enforced, especially if they contradict established family laws.

Some of the more common postnuptial agreement terms include:

Allocation and division of property and other assets after divorce
Custody, care and control of the child after divorce
Division of marital debt after divorce
Maintenance and duration of payments
Allocation of assets if a spouse dies during the marriage

While it is technically possible for you to draft a postnuptial agreement by yourself, it is advisable to hire a lawyer as they will be able to draft an agreement that complies with legal requirements, while providing timely and accurate advice to ensure the agreement is watertight and does not run afoul of any established family laws.

The lawyer will also be able to help you navigate more complex terms that will require calculation of liabilities such as marital debts. Due to the sensitive nature of postnuptial agreements, it is always advisable to carefully consider the terms and arrangements before finalising it.

While a couple will only need a single postnuptial agreement, each party may hire their own respective lawyer, or hire the same lawyer to draft the agreement, provided both parties are agreeable to all the terms of the agreement.

Engaging a Lawyer

If you are currently in a situation that requires mediation or legal advice, it’s best to consult a lawyer who will be able to guide you through your options.

Additional Resource: https://singaporelegaladvice.com/law-articles/post-nuptial-agreement-singapore/