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Tuesday, November 05, 2013

On 377D of the Penal Code: when only being psychic is enough to avoid criminal liability

Someone: nope. I remember reading the bad law in a printed judgement and thinking that it was really screwy. I think the judge also subtly hinted at how his powers were restricted by it as well

Re solving it... Hmmm, I havent thought that much into how it can be reworded fairly

According to my ex-police boss, he joked that even if ask for ID, you still get screwed. Seems like the law is the one that is flawed.

Me: yep
as the law society article pointed out
oh well

Someone: Maybe 2 matching ID's or something.

Me: if you ask for ID and get fake ID and she's 17... at least fine

Someone: A lousy solution yeah.

Me: wondering how many will show ID

Someone: Odds are, probably none. Those men just got bloody unlucky.
Or rather, I reword.
Those men were doomed regardless of what they did in mitigation

Me: looks like asking her age saves you 1 week at least
I think the first underaged one showed her sister's IC right
well seeing IC = even better mitigation than just asking age

Someone: That Buegin guy? Yep. Sister's ID

Me: so how come he still got hit with such a heavy penalty

Someone: I'm not sure. Also, the fradulent use of the ID - we have history of charging people for the false use of ID to enter casinos... not on basis of evading the $100 fee, but with regards to the mens rea of using the ID to cheat others into thinking you are another person

So by rights, there is precedent available to charge the girl with misuse of ID
If i remember right. Operating off memory here rather than google and/or my achived legal material

Me: if you're underaged and use fake ID to enter a club are you liable?

we must look at the underaged part here
I think fake ID to buy cigarettes, you're liable

Someone: ". This is in stark contrast to the law relating to minors’ purchase of cigarettes. Any person under 18 years of age who purchases, uses or has in his possession a tobacco product is guilty of an offence and liable upon conviction to a fine of up to $300"

Re entering the club - not aware of any cases of that nature. I suppose though, that the consequence is small in the eyes of the state

Me: it's sexist lah
and moralistic

Someone: Yes it is
I think that the law is full of outdated stuff. This is one of them.

Me: hard to call it outdated
it was enacted a few years ago

Someone: changing laws takes 1-2 years, and sometimes, even if in process of changing it, even if it turns out fucked up, you have to wait for the next window to change it again

as folks upstairs will inevitably ask 'why the hell wasnt this spotted before!!! You expect me to get embarassed before Parliament?"'

Has happened before

Me: hurr hurr
I doubt they'll change it they made it fucked up for a reason la

it's politically hard to support the rights of prostitutes or johns

Someone: Well, I wont say they made it fucked up out of malice - moreso because overworked policy officers were just too burned out to game out the possibilities

I was one before, and yes, i kicked myself for not spotting some stuff before it went to Parliament

Generally, a law that has been passed wont be fixed, unless it becomes an embarrassment.
On the global stage. e.g the oral sex law.

At least in this govt. There are too many high salaries at stake, to be the dickhead who keeps giving the Minister more work.

Ne: not malice but it's strategic ambiguity
the compromise between:
- recognising that you cant stamp it out
- difficulty of ousting existing brothels even if they wanted to
- 'conservative' moral views

it was a *deliberate* insertion to remove the fact of honest mistakes from possible defences la. it was inserted on purpose

yeah legal inertia

Someone: Generally, if its an insertion (e.g. 377D), i try to trace down the parliamentary report for the change
Oh the removal of defence thing. Gimme a sec to correctly name it

Yep 377D. The one that shafted the angmo dude. The one that says that reasonable mistake of age its not a defence.

Well tracing legislative history. For example, lemme trace back 377D and show you the process

You got the Penal Code on Statutes online open?

Me: oh I didnt know it was 377D

it shafted a lot of people la

not long ago
they put it in to screw people

Someone: Yep. im doing the trace... gimme a sec

[I'm] Tracing back legislative history, so that i can see when 377D was inserted, and so trace back the Hansard (parliamentary debate minutes) where the Bill was first debated

You can do the same by clicking legislative history at the top of the page. See it>?
After clicking on it, scroll down to the bottom.

Basically, legis history, scroll down, ignore the consequential changes -e.g. criminal procedure code etc, as those are just changing of terminology caused by other acts changing

If you are lucky, you get links to the old Acts, before they changed

In this case, we got lucky.

Its the same change that inserted 377A, which is no wonder 377D got overlooked in all that debate

Me: 377A got inserted? it was just retained right

Someone: Nope the old 377 got wiped. 377A was inserted together with 377D and a few others

Ok, its the famous Hansard of 23 Oct 2007 thereabouts - the 2nd and 3rd reading where Thio went on about drinking thru a straw and all that nonsense

Me: oh well

and now ~50 men are screwed

Someone: Next I go here
Publications - Singapore Parliament Reports | Parliament Of Singapore

Me: wonder who mischievously inserted the line about an honest mistake

Someone: Found the Hansard - yep, no debate on 377D at all. It got overlooked by Parliament in the midst of the 377A debate.


Me: sigh

Thanks, gay activists.

Someone: Well to my experience, prolly an overworked policy officer drafted it shitty. And a manager overlooked it or edited it

Me: well as I said someone *actively* inserted the honest mistake clause

Someone: Generally, the Bill wil have gone thru several cuts

Me: the irony is lots more men have been prosecuted under 377D than 377A since this whole farce started in 2007

Someone: So fault can lie on Min, Dir, Mngr, legal advisor, or down to the officer who made that line.

You'll be quite shocked that its usually policy officers with utterly no legal experience makign the first cut of the wording of the law. If the lawyers in AGC dont spot it... and the Mngr, Dir, PS, Min, Parl all miss it...

Me: not surprised
legal training is an expensive skill

I thought bureaucracy is supposed to weed out this sort of problem

Someone: it can be self learnt to a certain extent. And sometimes, officers are driven by responsibility and guilt to learn how to draft shit better

Me: I hope whoever drafted this feels bad.

Someone: Doesnt work well on paper. Problem with many layers of clearing, is that subtle naunces of the wordings in the law get missed

Me: depends on the clearers

Someone: There is an old joke that what you drafted as a policy officer becomes completely different by the time it reaches the Min, and you get all the blame.

See, your bosses summarise your stuff.

So the explanations get dropped first

Once you lose the footnotes, the next layer thinks it ok to change stuff

And yes, you can see it change... But if your PS or Min changes your draft, sometimes you arent privy to the changes when it happens because it is far above your level... and sometimes you know it is career suicide to debate with a busy Min when his clearance comes in at 2am at night and you gotta prep to send it to Parliament

A lot of folks don't understand why the system fails us... not without having either been on the inside. And the govt dont help by not making the process more transparent.

Me: Your bosses change everything also

Yeah people just blame "gahmen"
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