Criminal Defence Archives | PKWA Full Service Law Firm

Criminal Breach of Trust

Criminal breach of trust (CBT) is a serious offence in Singapore. A person found guilty of CBT can be sentenced to up to 20 years imprisonment, a fine or both. Several high-profile CBT cases led to the introduction of amendments to the Penal Code in January 2020.

To many ordinary citizens, the term criminal breach of trust is complicated or vague. What does it mean? In simple terms, it refers to the misappropriation (theft) of funds or property and includes a wide range of activities.

How does the Penal Code define Criminal Breach of Trust?

Section 405 states that a person commits CBT when they:

dishonestly misappropriate property or funds that were entrusted to them, or over which they have dominion; or
converts such property for their own use; or
dishonestly uses or disposes of such property in violation of any express or implied contract or law prescribing the mode in which such trust should be discharged; or
intentionally allows any other person to do so.

This is a mouthful to digest. Let’s look at a few examples to explain.

Person B entrusts his household contents to Person A, a warehouse owner, whilst B goes overseas for a few months. The contract stipulates that A will keep the goods safely for a specified sum and return it to B on his return. A then dishonestly sells the goods.

Person C is employed as a financial advisor at a company. He receives cash payments from a client. Instead of handing the money to the company, he uses the money to pay his debts.

The examples illustrate that there are always certain elements when dealing with Criminal Breach of Trust.

A person is entrusted with property or given control over it.
The person then acts dishonestly by:
1. misappropriating the property or funds; or
2. converts the property or funds for their own use; or
3. uses or disposes of the property in violation of a contract or law; or
4. intentionally allows someone else to do any of the above.

For the prosecution to succeed with a charge of CBT, each of these elements must be addressed.

Elements of CBT

Entrustment

The element of entrustment implies that the individual does not receive the property or funds for their use or purposes. They are given the goods to supervise or have control over it or to deal with it in a specific way expressed or implied in a contract or specific law.

For example, an investment manager receives funds to invest on behalf of someone else. A transportation company receives goods to transport, or an executor gets control over a deceased’s estate to distribute the assets according to the will.

Dishonesty – intention

To be found guilty of CBT, the individual must have acted dishonestly. The Penal Code defines “dishonesty” as acting with intent to wrongfully benefit themselves or someone else or causing a wrongful loss to the victim.

If the person acted negligently or made an honest mistake, it will not constitute CBT. For example, A instructs B to invest a certain sum of money for A in Company Z. B honestly believes that A can make more money by investing in Company Y. B acted in good faith. Although A can bring a civil lawsuit against B if he suffers losses, B will not be guilty of CBT since he did not act dishonestly.

The court has held that dishonesty need not be directly proven; it can be inferred from the circumstances. The Act refers to dishonesty by “ordinary standards of reasonable and honest persons”.

Misappropriation or conversion

Misappropriation or conversion are very similar, and often one Act can be dealt with as either conversion or misappropriation. Most cases of CBT are dealt with as misappropriation of property.

Misappropriation refers to cases where entrusted money (or property) intended for another purpose is pocketed for own use. For example, a salesperson uses a customer’s money to pay for his personal holiday instead of giving it to the company. It can also refer to situations where the money is set aside for the wrong person or wrong use.

Conversion involves using someone else’s property as if it were your own. For example, a property rental agent is entrusted to rent out a residential apartment for a client. The agent then dishonestly allows a friend to run a business from the apartment and pockets the monthly rental for himself.

Violating a law or contract

Entrustment is either captured in a contract or the law applicable to a specific role. For example, an executor of a will has a legal duty to act in accordance with the will and distribute the assets accordingly. If they keep some money for themselves, they are violating the law.

Likewise, if you sign a contract with someone to store your property and that person sells it to someone else and takes the money, they are in breach of the contract and guilty of CBT. The contract can be expressed or implied.

Allowing someone else

You can be guilty of CBT, even if you don’t misuse the money or property yourself but deliberately allow a friend to dishonestly misuse the money. Your friend can be charged with aiding and abetting you in committing the crime of CBT.

Punishment for criminal breach of trust

A person convicted of general criminal breach of trust under sec 405 can be sentenced to imprisonment for a maximum of 7 years, or a fine or both.

The Penal Code stipulates three situations regarded as aggravated criminal breach of trust, and the penalties are more severe.

Sec 407 – Criminal breach of trust concerning property entrusted for purposes of transport or storage

If you are entrusted with property for transportation, for hire, or storage for rent or charge (the warehouse owner above), and you commit criminal breach of trust, the penalty can be imprisonment of up to 15 years and a fine.

Sec 408 – Criminal breach of trust by employees

If you are entrusted as an employee with property or with control over property, and you commit CBT in respect of that property, the punishment can be imprisonment of up to 15 years and a fine. This also applies to anyone who acts in the capacity of an employee.

Sec 409 – Criminal breach of trust by public servants, bankers, merchants, agents, directors, officers, partners, key executives, or fiduciary

This section includes brokers, attorneys, directors of corporations, people providing agency services, executors and others entrusted with property in their professional capacity. Anyone entrusted with property in their particular capacity or position who commits a criminal breach of trust can be punished with imprisonment of up to 20 years and a fine.

Trust can be expressed or implied by law. The more severe penalties are meant as a deterrent for people in positions of trust.

What will the court consider when imposing a sentence for CBT?

Besides considering whether your Criminal Breach of Trust is a form of aggravated criminal breach of trust, the court will consider various factors when deciding on a suitable sentence. Factors include the following:

The value of the entrusted property.
The duration of the offence.
The impact of the breach of trust on the victim or the general public.
Any restitution or lack of restitution offered to the victim by the offender.
The offender’s position and the degree of trust bestowed on the offender.
The accused’s motivation.
Cooperation with the police.
The offender’s gain from committing the offence, if any.
Remorse and other personal circumstances.

What happens if you are under suspicion of a criminal breach of trust?

Criminal breach of trust is an arrestable offence in Singapore. That means the police can arrest you without a warrant if they reasonably suspect you of committing CBT. It is then up to the police or the court to decide if you will be released on bail.

If convicted, you will have a criminal record.

However, after a certain period, you may be able to have your record wiped clean if you meet specific criteria:

If you were sent to prison, the imprisonment term but be less than 3 months.
If you were given a fine, the fine must be less than $2,000.
You cannot have any other criminal convictions.
You cannot have any other previous spent records.

If you meet these criteria AND you remain crime-free for at least 5 years, your record will be spent.

Criminal breach of trust is a serious offence with harsh penalties. If you face a charge of CBT, you should speak to a criminal defence lawyer as soon as possible to discuss your options.

An experienced lawyer will be able to assist you in achieving the best possible outcome for your case.

Misuse of Drugs Act in Singapore

Criminal Defence

Singapore has stringent drug laws. Despite these strict laws, or maybe because of them, many people are still arrested regularly for drug offences in Singapore. Sentencing varies depending on the type and quantity of drugs. In some cases, an accused can be sentenced to death in Singapore for possession of certain controlled drugs.

To understand the different drug offences and punishments, we need to examine the Misuse of Drugs Act (MDA). The Act also provides for the treatment and rehabilitation of certain offenders.

The Misuse of Drugs Act sets out various offences, such as

trafficking;
manufacturing;
importation or exportation;
possession; and
consumption of controlled drugs.

Each offence carries its own punishment. Understanding Singapore’s drug laws can be tricky since the law creates certain presumptions in relation to some offences.

This article will discuss the three most common drug offences:

Possession
Consumption, and
Trafficking.

Before we look at the different offences, we must look at the different classes of drugs.

Different classes of drugs in Singapore

The Misuse Use of Drugs Act classifies controlled substances into three classes. These classes are found in the First Schedule of the MDA.

For example:

Cannabis, cocaine, methamphetamines, and opium are all Class 1 drugs.
Codeine, nicocodine, and zipeprol are Class 2 substances.
Methaqualone, benzphetamine, and triazolam fall under Class 3.

The classification and identification of the drug found on an accused person can become extremely important since the class of drugs determines punishment.

Drug Offences in Singapore

Section 8 – Possession and consumption of a controlled drugs

Possession

Section 8(a) states … “it shall be an offence for a person to have a controlled drug in his or her possession”.

Under the Second Schedule of the MDA, a person found guilty of the unauthorised possession of controlled drugs can be sentenced to a maximum of 10 years imprisonment or $20,000 or both. If you are a repeat offender, there is a minimum sentence of 2 years imprisonment.

The sentence will depend on the type (class) of drug and the quantity found in your possession.

Unfortunately, this offence is not as straightforward as it may sound. The MDA creates a few presumptions that must be considered. The presumption relevant to the offence of possession is found in section 18 of the Act.

Section 18 presumption of possession and knowledge

Section 18 states that it shall be presumed, until the contrary is proved, that you have had the drug in your possession if you have “in your possession, or custody or under your control”:

anything containing a controlled drug;
the keys of anything containing a controlled drug;
the keys to any place or premises or any part thereof in which a controlled drug is found; or
a document of title or any other document intended for the delivery of a controlled drug.

These situations all attribute possession of the drug to the accused. So even if you never had physical possession of the drug, you can still be found guilty of possession based on the presumptions.

Section 18 goes further and states that it shall also be presumed until proven otherwise that you knew the nature of the drug.

So, if your friend leaves a packet of cocaine in your guest room after a party and the police find it, you are presumed to possess the drugs and know that it is cocaine. It doesn’t matter that you never physically came into contact with the drugs. The same applies if a friend leaves cannabis or any controlled drug in your vehicle. It will be up to you to prove your innocence.

Section 21 presumption relating to drugs found in vehicles

Section 21 refers explicitly to drugs found in vehicles. It states that if any controlled substance is found in a vehicle, it shall be presumed, until proven otherwise, to be in the possession of the owner of the vehicle and of the person in charge of the vehicle at the time.

Consumption

Under sec 8(b), it is an offence for a person to:

smoke;
administer to himself or herself; or
otherwise consume a controlled or specified drug.

Specified drugs are certain controlled drugs listed in the Fourth Schedule as a subset of controlled drugs. It includes, for example, cannabis, cocaine, and ketamine. The distinction is important when sentencing repeat offenders.

If convicted of an offence under sec 8(b), the sentence shall be a minimum of one year in prison, up to a maximum of 10 years, plus a fine not exceeding $20,000. (This applies to offences committed after 1 April 2019).

This is the starting point for sentencing. Punishment will be determined depending on whether the person has prior convictions for similar offences or was previously admitted to a drug rehabilitation institution.

Generally, the sentence for repeat consumption of a controlled drug is at least 3 years imprisonment unless the person is punished under sec 33A.

Sec 33A applies to cases of repeat consumption of specified drugs.

In cases of specified drugs, sec 33A stipulates where the offender has previously been:

admitted to an institution;
convicted for consuming a specified drug; and/or
convicted of an offence of failure to provide a urine sample.

If convicted again for consuming a specified drug, the offender will be sentenced to at least 5 but not more than 7 years of imprisonment and receive 3 to 6 strokes of the cane.

Urine and hair tests relating to consumption

If a person is suspected of having consumed controlled or specified drugs, that person may be required to provide a urine or hair sample for testing under sec 31(2) and sec 31A.

Failure to provide a sample is an offence and punishable to imprisonment for not less than 1 year and not more than 10 years and a maximum fine of $20,000, or in the case of a specified drug, imprisonment of not less than 5 years and not more than 7 years, and 3-6 strokes of the cane.

Presumptions relating to consumption

Sec 22 of the Misuse of Drugs Act stipulates if a controlled drug is found in the tested urine samples of a person, the person is presumed to have consumed that controlled drug, until the contrary is proven.

Sec 19 presumption concerning premises used for consumption

Any person found in or escaping from a place or premises which is proved or presumed to be used for smoking or administering a controlled drug is presumed, until the contrary is proved, to have been smoking or administering a controlled drug in that place or premises.

A place or premises is presumed, until the contrary is proved, to be used for the purpose of smoking, administering, or consuming a controlled drug if any of the following is found in the place or premises:

a pipe;
syringe;
utensil;
apparatus;
any other article intended for the smoking, administration, or consumption of a controlled drug.

Drug consumption overseas

Singapore citizens and permanent residents must remember that these rules apply even for consumption outside of Singapore.

Sec 8A of the MDA determines that any Singapore citizen or permanent resident that consumes drugs overseas and is found as a result of urine tests can be dealt with as if they committed the offence in Singapore.

This explains why random tests are done at specific entry points. If you are found to have consumed drugs before entering Singapore, you can be punished as if the offence occurred inside Singapore. The fact that consumption of that drug may be legal in the other country is not a defence.

Trafficking

Of the three offences discussed in this article, trafficking is the most serious one. Depending on the drug class and quantity, offenders can be sentenced to death for trafficking.

When is it trafficking?

Sec 2 of the MDA defines “traffic” as:

(a) to sell, give, administer, transport, send, deliver, or distribute; or

(b) to offer to do anything mentioned in paragraph (a).

Otherwise, than under the authority of this act, and “trafficking” has a corresponding meaning.

From this definition, it is clear that the scope is broad. Taking a packet of drugs to a friend’s house could amount to trafficking.

Sec 5 makes trafficking an offence. It reads as follows:

“….it shall be an offence for a person, on his own behalf or on behalf of any other person, whether or not that other person is in Singapore –

(a) to traffic in a controlled drug;

(b) to offer to traffic in a controlled drug; or

Sub-section 2 further states, “a person commits the offence of trafficking in a controlled drug if he has in his possession that drug for the purpose of trafficking”.

So, when is it possession, and when is it trafficking?

Apart from the obvious trafficking scenarios, you might ask, when can the police decide that you are possessing drugs “for the purpose of trafficking”?

Presumption of intention

Sec 17 provides that if the quantity of drugs in your possession is above a certain threshold, you can be found to be in possession for the purposes of trafficking. It is then presumed that you are possessing with the purpose of trafficking. Generally, if you are found with less than the sec 17 quantity, it would be considered possession unless you are caught trafficking, as defined in section 2.

For example, if you are found with more than 3g of cocaine in your possession, it will be presumed that you possessed it for the purposes of trafficking. If you only have 2g of cocaine, you will be charged with possession.

Punishment for trafficking

As mentioned before, the class and quantity (weight) of the drugs will determine the sentence. The options range from imprisonment and cane strokes to the mandatory death penalty. The various sentencing options are found in the Second Schedule to the MDA.

For example:

Suppose you are found trafficking a Class A drug. The sentencing ranges from a minimum of 5 years imprisonment and 15 strokes to a maximum of 20 years and 15 strokes. For a Class B drug, the minimum is 3 years and 3 strokes, up to a maximum of 20 years and 10 strokes.

If, however, you are found to have trafficked in opium (a specified drug) with a weight of between 800g and 1,200g and containing not less than 20g of morphine, the sentence is a maximum of 30 years, or life in prison and 15 strokes. The minimum is 20 years and 15 strokes.

The punishment is the death penalty for more than 1,200g of opium containing more than 30g of morphine.

Discretion of the court not to impose the death penalty

In some circumstances, the court has the discretion under sec 33B to impose life imprisonment and 15 strokes instead of the death penalty. This is possible if the convicted person can prove that:

their involvement was restricted to transporting, sending, or delivering the drugs, or offering or preparing to transport, send or deliver the drugs; AND
the convicted person has substantively assisted the Central Narcotics Bureau (CNB) in disrupting drug trafficking activities inside or outside Singapore.

If the convicted person was suffering from an abnormality of the mind or a substantial mental impairment, the death penalty could be reduced to life imprisonment without caning if all the other requirements are met.

Whether the assistance was “substantive” is at the discretion of the Public Prosecutor.

Rehabilitation under the MDA

When the Director of CNB suspects a person is a drug addict, they may be committed for medical examination and observation under section 34 of the Act.

Suppose it is determined that the person is an addict. In that case, they may be:

placed under supervision for a maximum of 5 years; or
admitted to a rehabilitation institution for at least 12 months unless they are discharged earlier by the Director or the Review Committee of the institution.

The Act defines a “drug addict” as someone who has, through the use of controlled drugs, developed:

a desire or need to continue to take that controlled drug; or
a psychological or physical dependence on the effect of that drug.

Being channelled to the rehabilitation regime is only available to consumption offences and only applies if the offender has no other criminal offences.

Since 2019, third or fourth-time offenders can also be channelled to rehabilitation if they have not committed other concurrent criminal offences.

Facing a drug offence in Singapore is serious. You will need a good lawyer with experience in drug offences on your side. Singapore drug laws are strict with harsh and complicated penalty options. An experienced criminal lawyer can navigate these laws and achieve the best outcome for your situation. Please get in touch immediately if you find yourself under investigation.

Doxxing in Singapore

Criminal Defence, Defamation & Harassment

Technology has many advantages and provides new ways to learn, communicate, share information, and connect with friends and family. However, it is not without risks. More and more people find themselves victims of online embarrassment and harassment.

In recent years, the Singapore legislator felt it appropriate to enhance the protection for victims against violating their privacy and online harassment. A new offence, called “doxxing”, was created by amendments to the Protection from Harassment Act 2014 (POHA). It came into effect on 1 January 2020. The aim is to enhance protection against people who post other people’s private information to embarrass or harass them.

What exactly is “doxxing”?

The POHA does not specifically use the term “doxxing”. The term originated as slang for “dropping documents”. In general, doxxing refers to revealing and circulating personal information about someone to the public without the person’s permission.

Whilst the term pre-dates the internet, it has now been expanded to refer to the publication of a person’s personal information with the intention to harass, threaten, or facilitate violence against the person. A person can commit doxxing online and offline.

What constitutes personal information for the crime of “doxxing”?

In the context of the POHA, personal information means information that can be used to identify a person.

Identifying information is defined as:

Any information that, whether on its own or with other information, identifies or purports to identify an individual, including (but not limited to) any of the following:

the individual’s name;
residential address;
email address;
telephone number;
date of birth;
national registration identity card number;
passport number;
signature (whether handwritten or electronic); or
password.

It includes any photograph or video recording of the individual and any information about the individual’s family, employment, or education.

What “doxxing” offences were created by the amendments to the POHA?

The amendments created three types of doxxing offences for publishing identifying information.

Publishing identifying information to cause alarm, distress, or harassment

Section 3(1)(c) – Publishing identifying information of the target person with the intention to cause harassment, alarm, or distress to that person. And as a result, cause that person or any other person harassment, alarm, or distress.

The POHA provides illustrations to explain this offence. An example would be where X and Y were in a relationship. When the relationship ends, X writes a post on Facebook alleging that Y is sexually promiscuous. He then proceeds to post a photograph of Y and includes her personal phone number. X’s intention is to cause Y harassment by facilitating others to identify and contact Y. X’s action resulted in Y being harassed by phone calls and messages asking for sexual favours. X would be guilty of the offence of “doxxing” as defined in sec 3(1)(c).

If Y’s family is distressed or alarmed, or harassed because of X’s conduct, X will also be guilty.

Publishing identifying information to cause fear of violence

Section 5(1A) – Publishing identifying information of a person, or a person related to that person:

with the intent to cause the victim to believe that unlawful violence will be used against the victim or any other person; or
knowing or having reasonable cause to believe that it is likely to cause the victim to believe that unlawful violence will be used against the victim or another person.

To illustrate. A posts on Facebook that B must be “put in his place and taught a lesson”. A includes a photo of B and his address. A adds, “Who is coming to beat him up?” A clearly has the intention to cause B to believe that violence will be used against B.

It is highly unlikely in today’s technological society, but let’s say A knows that B will never see or become aware of the post. Is A still guilty of doxxing under sec 5(1A)? No, A cannot be guilty since he did not have the intention to cause B to fear violence against B.

Publishing identifying information to facilitate the use of violence

Section 5(1A) further stipulates the following:

Publishing identity information of a person, or a person related to the victim:

intending to facilitate the use of unlawful violence against the victim or another person; or
knowing or having reasonable cause to believe that it is likely to facilitate the use of such violence against the victim or any other person.

In this case, the victim need not be aware of the publication, and the fear of violence does not need be established. A can still be guilty. All that is needed is that A published the information with the intent to facilitate violence or that A ought to have known that it would facilitate violence.

What are the differences between these offences?

The main difference between the three offences lies in the required form of guilt.

Under section 3, the publisher must have the intent to cause harassment, alarm, or distress to be found guilty.

Under section 5(1A), the publisher can be found guilty even if they did not have actual intent to cause fear of violence or facilitate violence. It is sufficient to show that the publisher knew, or ought to have known, that their actions are likely to cause fear or facilitate violence.

The second difference relates to the target of the offence.

Under section 3, it is an offence if publication causes the target person or “any other person” harassment, alarm, or distress.

Facilitating the use of violence under section 5 is similar to the requirement under section 3. It can relate to the victim or “any other person”.

However, the section 5 offence of “causing fear of violence” relates only to the targeted victim. The person whose identifying information is published must be the one who fears violence against them or any other person. To go back to our example of A’s Facebook post, if B doesn’t fear the violence, A is not guilty of the offence, even if B’s family all fear violence.

Can “doxxing” be committed against a company?

No, doxxing can only be committed against a person, not an entity. A company can, however, commit doxxing. If a company falls victim to “doxxing”, it has other available remedies.

Penalties for doxxing

Those convicted under section 3 (causing harassment, alarm, or distress) can be liable to a fine of up to S$5000 or imprisonment of up to 6 months, or both.

If convicted under section 5, you can be sentenced to a fine of up to S$5000, imprisonment of up to 12 months, or both.

Is there a defence against “doxxing”?

Both sections 3 and 5 provide that it is a defence if the accused can prove that their conduct was reasonable. There is no definition for what constitutes “reasonable conduct”. The courts will evaluate all the circumstances to determine whether there was the required intent or knowledge for a conviction or whether the accused’s conduct was reasonable.

The Act uses the following example.

X records a video of Y driving recklessly in a car on the road. X posts the video on an online forum where people share snippets of dangerous acts of driving on the road. X posts the video with the intent to warn people to drive defensively. X has not committed an offence under this section.

Available remedies if you feel that you are the victim of doxxing

File a police report for criminal charges

The police will investigate, and if you can show that doxxing was committed against you under section 3 or 5(1A), the publisher could face criminal charges. If the doxxing was committed online, you should take screenshots or save the posts as evidence of the doxxing.

File a civil lawsuit against the publisher

If you can show that you suffered damages because of the doxxing, you may be able to file a civil action against the publisher for monetary compensation.

Protection Order

Section 12 of the POHA provides that the victim can apply for a protection order that requires the publisher to stop publishing the information.

The court may also order the internet platform to disable access to the information to end-users of the service in Singapore.

The Act provides for expedited protection orders in more serious cases.

The Singapore government made it clear that doxxing would not be tolerated when they criminalised “doxxing”. People guilty of such behaviour will face the full force of the law.

If you are a victim, doxxing can cause a lot of distress to you and your family. It is essential to gather as much evidence as you can and speak to a lawyer as soon as possible to discuss your rights and remedies.

If you are accused of “doxxing” but feel that you acted reasonably, you might have a defence. An experienced lawyer will evaluate your case and discuss your options with you.

Defamation in Singapore

Criminal Defence

The Singapore Constitution protects the right to free speech. However, this right can be restricted in certain circumstances to protect the good reputation of individuals and companies. Specific actions to ruin a person’s or company’s reputation are classified as defamation, and defamation laws protect individuals or companies against defamatory acts. We can describe defamation law as “balancing” the right to freedom of speech and a person’s right to defend their good reputation.

How does the law define defamation?

In Singapore, defamation can give rise to criminal or civil actions. It is a criminal offence under section 499 of the Penal Code. The Defamation Act regulates civil actions based on the tort of defamation.

Under the tort of defamation, we distinguish between written words (libel) and spoken words (slander). Libel includes broadcasting or publishing defamatory statements; it covers emails, messaging, blogs, the internet, or printed media. It can also include pictures or cartoons.

The main difference between a tort and a criminal act is that a tort is a breach of a civil duty towards a person. In contrast, a criminal act is a breach of duty to society in general.

Criminal defamation

Section 499 of the Penal Code defines defamation as follows:

“… words either spoken or intended to be read, or by signs, or by visible representations, … intending to harm, or knowing or having reason to believe that such imputation will harm, the reputation of such person….”

In simple terms, that means that it will be defamation if:

The defamatory statement harmed the person’s reputation.
The harmed person is identified.
The information must be “published,” i.e., other people can hear or see the statements.

The Act provides for certain exceptions or defences, including:

It is not defamation if the statement is true, and it is for the public good to publish the information.
Good faith opinions based on true facts regarding the public conduct of public servants, or the conduct of any person touching any public questions.
Publishing reports of court or parliamentary proceedings.
Good faith opinions regarding the merits of a case decided by a court, or witness conduct.
Good faith opinions on the merits of public performance, such as publishing a book, making a speech in public, or performing on stage.

Civil defamation

Under the Defamation Act, a person can proceed with a civil defamation claim even if the person did not intend to defame. A civil action is available if the written or spoken statements harm someone’s reputation. Whether it will be successful depends on the circumstances of the case.

What must you prove to sue for defamation successfully?

The statement must be false and defamatory.

A statement is defamatory if it harms your reputation or lowers your standing in the minds of society’s reasonable or right-thinking members. Similarly, a statement is defamatory if it causes the victim to be ridiculed, avoided, or shunned by society.

Defamatory statements can be direct or indirect, i.e., can be implied without being said directly.

Whether a statement is defamatory will depend on the circumstances of each case.

The victim must be identified.

To succeed with a claim, the claimant must be identified by the words or pictures. Mistaken identity will not be a defence.

The statement must be published or communicated to a third party.

Although it doesn’t matter how many people saw the statement for it to be defamation, the audience size can be important when the court determines damages.

Defences against a claim for defamation

Apart from specific exceptions and defences mentioned in the Penal Code, there are

generally accepted defences:

The statement was justified because it is true.

To succeed with a justification defence, the “defender” must prove that the statement and the facts on which the statement is based are true in substance.

It was a fair comment.

To succeed with a fair comment defence, it must be proved that the statement:

Is an expression of opinion, i.e., it must be in the form of a comment or opinion, not a statement of fact.
Is based on true facts.
Is a matter of public interest.
Is fair, i.e., it is the honest opinion of an unbiased person.

It should be noted that this defence is not available if the comment was motivated by malice.

Privilege

There are two types of privilege defences. Absolute privilege and qualified privilege. Qualified privilege can be defeated if you can prove malicious intent.

Absolute privilege applies to judicial, executive, or parliamentary proceedings. For example, members of Parliament cannot be sued for making defamatory statements during Parliamentary proceedings.

During judicial proceedings, statements made by judges, counsel, witnesses, and other parties enjoy the same protection against prosecution. Absolute privilege also protects the contemporaneous, fair, and accurate public reporting of judicial matters.

Qualified privilege applies where:

One party has a duty or interest to communicate specific information to a third party who has a corresponding interest or duty to receive it. This could apply, for example, to communications between employees about work issues.
A person makes a statement to protect their own interests, for example, responding to accusations.
Newspapers report on parliamentary or judicial matters accurately and fairly.

What happens if the statement was made innocently?

Suppose the statement was not intended to harm or was made innocently. In that case, the defendant could avoid a lawsuit for defamation by offering a public apology. Section 7 of the Defamation Act provides that the person who made the defamatory remark can make an “offer of amends”.

To succeed with an offer of amends, the defendant must prove:

The statement was made innocently, and the statement maker exercised reasonable care before publishing the statement.
The defendant must take reasonable steps to inform the recipients of the statement that the content is defamatory.

The defendant must issue a public apology.

An offer of amends can avoid an action for defamation being instituted, or if it is already in the process, it can be discontinued.

Damages for defamation

The purpose of defamation laws is not only to protect someone’s reputation. It is also to compensate for any damages caused by the defamation.

The court can award monetary damages against the maker of the defamatory statements. The purpose of damages is to grant some relief for the distress caused and to restore the person’s damaged reputation.

The court may award general damages and aggravated damages.

General damages

The court will take several factors into account when deciding on the amount of damages, including:

The nature and seriousness of the statements.

The more serious the allegations, the higher the damages.

The effect of the statements on the person’s reputation.

The claimant’s standing in public is a relevant factor when determining damages. Similarly, the statement maker’s standing can also be a relevant factor. The personal view of an average citizen, for example, might cause less damage than the views of a highly regarded public broadcaster.

The extent of the publication, i.e., the size of the audience.

The wider the publication, the more the damage. The context could also play a role. A blog post, for example, may be less credible or influential than a well-respected newspaper article.

Aggravated damages

When deciding whether to award aggravated damages, the court will consider the conduct of the statement maker. The court will consider the following:

An apology or lack of apology.
Were the defamatory comments repeated?
Malicious or reckless conduct.

Although not very common, the court may also award exemplary damages to punish the statement maker.

Other available remedies

Victims of defamation may approach the court seeking an injunction. There are two types of injunctions.

Prohibitory injunctions – forcing the statement maker or publisher to stop publishing any future defamatory statements.
Interlocutory injunctions – compelling the statement maker to retract the statements.

Defamation and the internet

The highly publicised case of Prime Minister Lee Hsien Loong v Leong Sze Hian [2021] SGHC 66 illustrates how the courts applied civil defamation laws in online defamation matters. Simply “sharing” a post can amount to defamation.

In this case, the blogger posted a link on Facebook to an article that contained allegations of corruption against Mr Lee. The judge found that sharing the article is construed as publishing the article. The post was publicly available, and it contained untrue statements that harmed Mr Lee’s reputation. The court specifically commented on the blogger’s reckless disregard for whether the article was accurate or not. The court awarded general and aggravated damages.

It can be argued that this is nothing new. It is well-established law that sharing someone else’s content is the same as “publication”. Therefore, sharing on social media platforms is equally considered as publication. In fact, each “sharing” or re-posting can potentially be seen as a new act of defamation.

Notably, section 26 of the Electronic Transactions Act protects network service providers against defamation claims. They are regarded as merely providing access to information and are not liable for defamation for the making, publishing, or dissemination of defamatory statements.

Conclusion

In Singapore, victims of defamation have a choice between instituting civil proceedings under the Defamation Act or reporting their case to the police for criminal prosecution.

If you find yourself in a situation where your reputation is harmed, you should seek legal advice as soon as possible. An experienced lawyer can advise you on the steps to take, your options to protect and restore your reputation, and your legal remedies.

If you are accused of defamation, an experienced lawyer can help you defend your case successfully or reduce the amount of damages you might have to pay. Section 10 and 16 of the Defamation Act provide ways to reduce the amount of damages.

An experienced lawyer can help you achieve the best possible outcome for your case, whether you are a claimant or a defendant in a defamation lawsuit.

You’ve Been Caught Speeding

Criminal Defence

Breaking the speed limit is one of the most common traffic offences in Singapore. Whether you speed by accident or on purpose, knowledge of the law around speeding is something everyone should be familiar with. Not only might it discourage you from driving dangerously, but you could also save money and keep a clean licence.

Whether you intend to speed or not, you have committed the offence if you are caught driving at excessive speeds. This is because it’s known as an offence of ‘strict liability. So police can exercise some discretion and only charge for speeding rather than a more serious offence, like dangerous driving.

Speeding law is contained in the Singapore Road Traffic Act. Section 63 makes it a crime to drive a motorised vehicle of any type above the speed limit for that road. The specific limits are discussed below, and they depend on what type of road it is and where it is located. Speed limits are usually anywhere from 30 to 70 kilometres per hour.

You risk getting demerit points on your licence, a fine, and a court appearance if you are caught speeding. In addition, licences can be suspended or revoked if it was a particularly bad offence or a repeat offence.

What happens if I’m fined for speeding?

Speeding offences don’t mean a criminal record (they’re not registered under the Registration of Criminals Act). Still, serious motor offences like causing death by dangerous driving will appear on your criminal record until 5 years of crime-free behaviour has passed.

Demerit points can be cleared by 12 months of offence-free driving.

You don’t have to inform your employer about a speeding offence on a job application. But if you were convicted of a serious offence in court, you must declare that to them.

Accumulating points or losing your licence can have serious and wide-ranging consequences on your personal and professional lives, as they are serious offences.

How fast can I drive on Singapore roads?

Schedules 1 to 6 of the Road Traffic (Restriction of Speeds on Roads) Notification set out speed limits for specific roads in Singapore.
Some typical examples:

80-90 km/h in tunnels and on expressways
90 km/h on sections of the Ayer Rajah Expressway
60 km/h on sections of the Admiralty Road
30 km/h on sections of the West Coast Highway.
School zones: 40 km/h at certain times, like when school is open (signified by flashing sign)
Silver zones: these are where elderly people may be crossing roads, and the limit is 30-40 km/h
No specified speed sign: the limit is 50 km/h

Speed restrictions by vehicle type

Heavier vehicles that speed are fined differently to lighter vehicles. The Land Transport Authority impose speed limits on the following vehicles:

Tunnels: 50-80 km/h for cars/motorcycles; 50-70 km/h for light commercial vehicles; and 50-60 km/h for buses
Expressways: 70-90 km/h for cars/motorcycles; 60-70 km/h for light commercial vehicles; and 60 km/h for buses.
Speed limits by vehicle weight: 50 km/h on normal roads for vehicles weighing up to 3.5 tonnes and carrying 15 passengers.

Penalties for Speeding

The main penalties in Singapore for speeding are:

Composition fines
Demerit points
Prosecution in court
Suspension or revocation of driving licence

Composition fines

In essence, a composition fine is where you pay money to avoid going to court and being prosecuted for your speeding offence. The amount you’ll have to pay depends on your vehicles size, weight and speed. For example, composition fines are used in minor traffic offences, where you don’t break the speed limit by more than 40 km/h. Your notice will clearly state the ‘offer of composition’. If you don’t pay the fine, you’ll be prosecuted by the court. The longer you wait to pay, the more the fine increases, so it’s a good idea to pay early.

For light vehicles, expect a composition fine ranging from $150 to $300. However, if you were driving a heavy vehicle, your fine would be in the range of $200 to $400, depending on how much you broke the limit by.

Payment can be made at any AXS machine.

Demerit points

The “Driver Improvement Points System” (DIPS) can punish drivers who speed by giving them demerit points. The number of points they get depends on the seriousness of the offence. A notice is sent to the driver showing the number of points they’ve been given and their demerit status.

Note that you can be fined or prosecuted in addition to receiving demerit points, depending on how serious the offence is.
The demerit system currently operates like this:

Demerit points Speed limit exceeded by:

Demerit Points	Speed limit exceeded by
4	Up to 20 km/h
6	21-30 km/h
8	31-40 km/h
12	41-50 km/h
18	51-60 km/h
24	More than 60 km/h

Can demerit points be removed?

Yes, demerit points are not permanent. If a driver doesn’t get any further points 12 months after their offence, the points can be removed.

Another way of removing them is for the driver to attend a Safe Driving Course (SDC), which removes 4 points from their record.
Not everyone can attend an SDC. Only the following may use this option:

A driver who has a valid licence
A driver with no existing suspensions, who has between 8 and 23 points
A driver who does have an existing suspension record, who has between 4 and 11 points

Those who may not attend an SDC include:

disqualified drivers
drivers who are on probation or about to be suspended
drivers who have attended an SDC in the past year

In any ten-year period, a driver may only attend 2 Safe Awareness Courses.

Prosecution in court

Anyone who commits the serious offence of driving more than 40 km/h over the speed limit will have to appear in court to be prosecuted. However, they won’t be offered the option of a composition fine.

Section 67(A) of the Road Traffic Act (RTA) gives the court the power to punish repeat offenders by issuing punishments up to three times the amount of the first offence. This goes up to a maximum of ten years in prison.

Suspension or revocation of driving licence

If the police believe a driver poses a danger to the public or isn’t competent to drive, they can suspend their licence under section 45 of the RTA. The demerit points system and the driver’s records are designed to help police determine whether they should have their licence suspended or revoked.

New / Non-probationary drivers

A driver who hasn’t yet held their licence for a year can have it revoked if they are awarded 13 or more demerit points in their first year of driving. After that, their licence will be invalidated, and they will have to reapply for it and retake both theory and practical tests to get a new licence.

Non-probationary drivers

Those drivers with no record of suspension but who have accrued 24 or more points in 24 months can be suspended from driving for 12 weeks. A driver who has a previous record of suspension and gets 12 or more points within a year is liable for another suspension.

How long they are suspended depends on their record of suspension:

24 weeks for a 2nd suspension
1 year for a 3rd suspension
2 years for a 4th suspension
4 years for a 5th or subsequent suspension

The police will take the driver’s licence card for the duration of the suspension. The card is returned to the driver in the case of the first 2 suspensions, but it is not returned for the 3rd or subsequent suspensions. All tests must be taken again to get it back.

Can I reduce the length of my suspension?

The option of a DIPS retraining course is given to drivers on their 1st or 2nd suspensions, which will reduce the suspension when completed.

There is a 4-week balance period of suspension after retraining for those on a 1st-time suspension. There is a 12-week balance period after retraining for those on a 2nd suspension. Thus, the suspension period can be reduced by up to 8 weeks for a 1st suspension or 12 weeks for a 2nd suspension, depending on when the retraining course is completed.

Drink Driving in Singapore

Criminal Defence

Drink Driving in Singapore

Drink driving can lead to serious consequences. It can sharply increase the likelihood of accidents and endangers the lives of other road users. As such, Singapore takes a dim view of those driving under the influence of alcohol or other banned substances. In 2019, the Road Traffic Act was amended to increase the possible penalties imposed for drink driving offences.

In the following article, we touch upon the laws surrounding drink driving and the possible penalties for those who are caught and charged.

The law on drink driving in Singapore

Under Section 67 (1) of the Road Traffic Act, it’s a criminal offence to drive while under the influence of alcohol or drugs. One may be found guilty of this offence if:

Their breath or blood alcohol exceeds the legal limit levels; or
They are unfit to drive due to the intoxication that incapacitates them from controlling a vehicle correctly. The driver doesn’t need to be above the legal limit for this case.
They are under the influence of drugs and/or other intoxicating substances.

At the end of the day, the only requisite is establishing that the driver is intoxicated and incompetent to control the vehicle.

Can I refuse to give a sample?

In Singapore, if the authorities have reasonable cause to suspect that an individual is under the influence, they are required to provide a blood specimen or undertake a Breathalyzer test. If the individual, without reasonable excuse, fails to comply with the authority’s request, they will be treated as having committed the offence of driving while drunk according to Section 70 (4) of the Road Traffic Act.

Punishments for drink driving in Singapore

Following the amendments of the Road Traffic Act, effective from November 1 2019, the penalties for drink driving were increased. A first-time offender would now face a penalty amounting from $2,000 to $10,000, imprisonment of up to 12 months or both. The court will also ban the driver from driving for a minimum of two years unless it finds special reasons for the driver not to be disqualified from driving.

A second-time offender or a successive offender will face a compulsory jail term of up to two years in addition to a fine amounting to between $5,000 to $20,000. The offender will also be banned from driving for a minimum of five years.

In scenarios where an individual is sentenced to prison, it’s important to note that the disqualification period from driving starts when the individual is released from prison.

Sentencing

Depending on the degree of the traffic violation, sentencing can vary. According to Section 139AA of the Road Traffic Act, a judge may consider speeding and such other offences as an aggravating factor in minor traffic violations (both compounded and otherwise). However, the offender may still be sentenced within the above-established ranges.

A judge might choose to sentence an offender up to three times the typical penalties stated in Section 67A of the Road Traffic Act if the offender was charged previously with more serious traffic offences.

If more serious injury or even death occurs, the penalties will be higher. Though rare, the penalty may include caning of up to six strokes.

Deliberations when sentencing

The first factor for consideration in drink driving offences, especially for first-time offenders who have no other aggravating factors, is the alcohol level found in the offender’s breath or blood when the offence occurred.

The legal limit for alcohol in a person’s body is 35 mg of alcohol per 100 ml of breath or 80 mg of alcohol per 100 ml of blood. If a person’s breath or blood alcohol doesn’t surpass the stated limit, they may not be found guilty of an offence.

In the case of Edwin s/o Suse Nathen v Public Prosecutor [2013] 4 SLR 1139, the High Court established a wide-ranging band for sentences to be given as a starting point for first-time offenders.

Alcohol level (mg per 100ml of breath)	Range of fines	Range of disqualification
35 – 54	$1,000 – $2,000	12 – 18 months
55 – 69	$2,000 – $3,000	18 – 24 months
70 – 89	$3,000 – $4,000	24 – 36 months
≥90	> $4,000	48 months +

Following the 2019 amendments to the law, such ranges are likely to be revisited, especially now since a first-time offender must be disqualified from driving for a minimum of two years.

The general principle still stands though- the higher the offender’s breath or blood alcohol level, the harsher the penalty to be awarded.

Other factors that the court may consider in drunk driving cases were established in Stansilas Fabian Kester v Public Prosecutor [2017] 5 SLR 755. These factors are:

The behaviour of the offender; was they driving dangerously, recklessly or showed a lack of control;
The level of harm caused and the culpability of the offender
Other sentencing considerations, like the need to discourage and deter the general public from drunk driving or the need to rehabilitate the offender;
Other mitigating factors that may be relevant

Arrests

According to the law, a person may still be found guilty of the drunk driving offence even if they aren’t the vehicle’s driver but merely in charge of the vehicle while under the influence.

Section 68 of the Road Traffic Act states that any person who is considered to be in charge of a motor vehicle- and not driving the vehicle- in a public place or on the road is regarded guilty of an offence if the individual is unfit to drive because they are intoxicated to the point that they are unable to control the vehicle properly or their breath or blood alcohol levels exceed the legal limit.

However, a person will not be considered to be in charge of a vehicle if they did not drive the vehicle between the time that they were unfit to drive at the time of the arrest and if there was no possibility that they would drive the vehicle at the time of the arrest.

Consult with a Lawyer

It’s crucial that you know your rights should you be investigated or charged with drink driving. Whether you have admitted to a drink driving offence, it is in your best interest to consult with a lawyer who has experience in this area as soon as possible.