Criminal law

Rehabilitation seeks to modify behaviour by changing the moral outlook of the offender and incapacitation seeks to keep dangerous criminals away from society.

The four aims and effects are essentially directed at what Pincoffs calls the three addressees of justification: victim, criminal and public. Based on this, it is submitted that retribution is the main motivating and shaping factor of the determination of punishment. It also accounts for the role of defences in criminal law; defences help to determine the blameworthiness of the criminal and the appropriate punishment.

Defences could act as either justification or excuses. Justification changes the law for a group of people as the wrongness of the act is negated by specific circumstances; excuses, on the other hand, only allows for the mitigation of blameworthiness. And in line with retribution, where “one wishes to punish culpability rather than merely harm, … one will wish to be sure to recognise excuses, in order to discriminate sharply between those culpable and those not culpable.”

Defences for homicide are excuses and cultural defence should be an excuse rather than a justification because it should not be used to eradicate the wrongness of taking a life away. However, extenuating cultural factors might explain why the defendant does not have the criminal culpability of a cold-blooded murderer.

Culpable homicide looks at the mens rea and actus reus of the defendant. A plain reading of the Penal Code shows that the distinction between murder and culpable homicide not amounting to murder is the mens rea which is either intention or knowledge. There is also a difference in the amount of fault or culpability even within the two categories under culpable homicide. Motive is then highly relevant to establishing the degree of a defendant’s criminal liability. Defences come in to introduce such extenuating motives to lower the charge or sentence.

Cultural defence comes in likewise, to explain the actions of the defendant. This is clear when provocation is raised as a defence. The test for provocation looks first at whether there was really a loss of self-control. This is subjective. Facts and cultural elements may inform the courts’ decision. The second part of the test looks at whether the provocation was sudden and grave. It is first subjective, looking at the cultural background of the defendant to understand the significance of the provocation and then an objective view is taken to decide if society can accept this standard deviation. This writer believes that this accords respect to the culture of the individual but politely refuses to accept such a deviation from Singapore’s standard.

In doing so, “it shows respect for individuals and other cultural norms by recognising that adherence to or guidance by one’s cultural values is not a stain on one’s character. … It … enhances the moral standing of the criminal justice system by being true to itself…” 

Thus the cultural defence meets the goals of retribution by ensuring that the punishment matches the culpability. It also helps deterrence as it helps foreigners to realise quickly the differences between their culture and ours.  It also recognises that Singapore laws are not aculture and not universally applicable; after all “defences on the grounds of provocation or mistake of fact ‘rely on the concept of what a ‘”reasonable” person would do’, but the proverbial reasonable person ‘does not come from [our] neighbourhood.’” Cultural defence also addresses the issues unique to culture conflicts which traditional defences, portending to be aculture, are not able to.

Despite the advantages of the cultural defence, there are legitimate problems which have to be dealt with. First, the victim’s death appears to be dismissed; this could undermine the respect that the law commands because it hurts the interests of one of the addressees of the justification of punishment. Second, there is an “erroneous assumption that [cultures] are internally homogenous” and are static, distorting the application of cultural defence. Third, it is demeaning to insinuate that foreigners do not have free will and are compelled by the dictates of their culture. Fourth, cultural crimes are not so rare and the cultural defence could undermine general deterrence, an example being the aftermath of People v Chen, where Chinese men saw it as an endorsement by the Law to abuse their wives. Fifth, especially in cases of homicide, the act itself, and the intention, are not that different from that of any other criminal, “[in] most cases in which cultural defence could be raised, there is little question that the defendant actually intended to commit the act for which she is being tried."

Ultimately, it could lead to double standards of justice.  This is a concern as the criminal law is still about holding everyone to a moral standard. This problem may be solved by looking at how the cultural defence is used in provocation as discussed above. At first glance, the acceptance and subsequent dismissal of the defendant’s perspective seems to be patronising as the defendant will still be hanged in the end, but this is due more to the problem caused by the mandatory death sentence for murder, which fails to reflect the degrees of fault covered by murder. It is also a reminder that the criminal law should be about enforcing minimum morals, at least for homicide, so that we can hold everyone to a single standard.

The traditional defences, as admitted earlier, do not cover the unique elements of cultural defence, but the cultural defence could undermine the value of the victim’s death and general deterrence. A solution comes about by looking at recent homicide cases.

Recent Singapore judgments, like Public Prosecutor v Juminem and Public Prosecutor v Somwang, deal with foreign criminals and they appear to be very sympathetic. The courts were essentially looking at their circumstances, not in a purely cultural light as cultural defence would have us do. Cultural elements, if any, played a role as social factors.

This hints at the possibility of introducing individualised justice, where we look at the individual and focus on the degree of his moral culpability, which perfectly meets the aim of retribution. While we take into account the social and psychological circumstances in charging and sentencing, they would not in themselves absolve a defendant. Signalling that homicide is wrong and without being constrained by rigid traditional defences, we adjust punishments accordingly.

In addition, we might look at the victim too. If the victim was of the same culture and knew that he was being provocative, we could look at the defendant in an even greater sympathetic light. Alternatively, if there are cultures where killing is seen as a legitimate solution to right a wrong, the consent of the victim to such a punishment could be an extenuating factor. It is admitted that such situations are rather limited though.

In conclusion, cultural defence has a limited role to play in Singapore. It can never be a defence proper due to the problems mentioned. Rather, Singapore should uphold individualised justice and a non-mandatory sentencing system.

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