Second Reading Speech by Senior Minister of State for Law, Indranee Rajah SC, on the Mutual Assistance in Criminal Matters (Amendment) Bill

08 JUL 2014

8 Jul 2014 Posted in Parliamentary speeches and responses

Madam Speaker,

  1. I beg to move, ‘That the Bill be now read a second time’.
  1. Introduction – Enhancing Singapore’s Mutual Legal Assistance Framework
  1. Madam Speaker, this Bill seeks to amend the Mutual Assistance in Criminal Matters Act (“MACMA”). The MACMA facilitates the provision and obtaining of international mutual legal assistance in criminal matters, and is an essential tool in Singapore’s arsenal to combat transnational crime.
  1. The MACMA was enacted 14 years ago against the backdrop of decreasing trade restrictions and rapid globalization. There was and remains a need for effective international cooperation to guard against transnational crimes and criminal organizations that try to exploit the loopholes caused by national boundaries and differences between enforcement jurisdictions of different countries. So for instance, an individual hacking into a Singapore-based server from another part of the world may think that Singapore authorities will be unable to ascertain his identity because the Internet Service Provider possessing his user information is located outside Singapore. The MACMA addresses these issues by creating a framework for cross-jurisdictional cooperation and legal assistance between States.
  1. The MACMA sets out various forms of assistance that Singapore may request from a foreign country, and vice versa. These forms of assistance range from arrangements for an individual to travel to a foreign country to give evidence, which is voluntary in nature; to assistance in search and seizure, which involves using a State’s domestic enforcement powers.
  1. The MACMA signals Singapore’s commitment to combat crime on a global scale. This commitment is more relevant than ever today. With growing cross-border crime [1], the need for enhanced international criminal cooperation has also increased. Left unchecked, transnational crime will undermine the Rule of Law and global governance.
  1. Madam Speaker, the Ministry periodically reviews the MACMA to study how Singapore can be more facilitative as a mutual legal assistance partner and at the same time, to ensure that Singapore continues to be armed with effective tools to combat transnational crime. In 2006, the MACMA was amended to dispense with the requirement for a mutual legal assistance treaty before Singapore can render assistance to a foreign country’s request when made appropriately. The legislative amendments tabled today represent further strides to enhance Singapore’s mutual legal assistance framework.
  1. The Bill introduces four changes:
    1. First, it calibrates the conditions which must be fulfilled before mutual legal assistance can be rendered by removing the Dual Criminality requirement for selected types of assistance;
    2. Second, it expands the types of offences in respect of which mutual legal assistance can be given or received under the MACMA by creating a standalone list of serious offences within the MACMA;
    3. Third, it expands the scope of enforcement of foreign confiscation orders.
    4. Fourth, it aligns the MACMA with amendments made to the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Bill 2014.
  1. I will now take the House through the main features of the Bill.
  1. Remove the Dual Criminality requirement for selected types of assistance
  1. The first pertains to removing the Dual Criminality requirement for selected types of assistance. We have to calibrate the conditions which must be fulfilled before mutual legal assistance is rendered. The current MACMA provisions impose a Dual Criminality requirement for all forms of mutual legal assistance. The proposed amendments remove the Dual Criminality requirement for those forms of mutual legal assistance which do not involve coercive forms of assistance. These are the types of assistance that neither attract penal consequences for non-compliance nor adversely affect the property rights of individuals. The Dual Criminality requirement will be retained for coercive forms of assistance.
  1. Dual Criminality refers to a situation where the foreign offence involves conduct which, if it had occurred in Singapore, would have constituted a serious offence. [2] If it concerns conduct that is not listed as a serious offence in Singapore, there will be no Dual Criminality requirement for such conduct.
  1. The general rationale for the Dual Criminality requirement is that a State should not use its powers to promote aims that are at odds with that State’s standards of acceptable behaviour and its view of what constitutes criminal conduct. It also protects individuals against the excessive exercise of power by one State in another sovereign State. And this is one of the legal safeguards built into the MACMA.
  1. Under the existing MACMA, all foreign mutual legal assistance requests that do not satisfy the Dual Criminality requirement must automatically be rejected.
  1. The international practice of the Dual Criminality requirement varies across States. Some States adopt an approach similar to Singapore’s current regime while a few have dispensed with the requirement entirely. However, most leading jurisdictions, such as the United Kingdom, the United States, and Canada, have moved towards a more calibrated application of the Dual Criminality requirement. In these States, the Dual Criminality requirement still applies but it is confined only to requests involving coercive forms of assistance, for example, search and seizure requests, or requests to confiscate assets. The requirement is removed for forms of assistance which do not involve the use of their enforcement powers.
  1. The Ministry has studied the international trends and practices, and we think that there is merit to this calibrated approach.
  1. For instance, if a person voluntarily consents to give evidence or provide assistance in a foreign court concerning a foreign offence even though it would not have constituted a serious offence in Singapore, that request can be considered and should not be automatically refused simply because it does not fulfil the Dual Criminality requirement. Singapore may not have any connection or interest in the case and there may be little reason for us to stand in the way of assisting in such requests. The Ministry has assessed that these forms of assistance no longer require Dual Criminality as a legal safeguard.
  1. The Ministry will therefore not impose the Dual Criminality requirement for types of assistance that neither attract penal consequences for non-compliance nor adversely affect the property rights of individuals. This means that Singapore will be able to render assistance for foreign requests involving any foreign offence to:
    1. Arrange the attendance of persons in the foreign state; [3] or
    2. Facilitate the custody of persons in transit through Singapore; [4] or
    3. Locate or to identify persons; [5] or
    4. Assist in effecting the service of process. [6]
  1. The Dual Criminality requirement will continue to be maintained for the coercive forms of assistance under the MACMA. These are:
    1. Assistance in obtaining evidence; [7]
    2. Enforcement of foreign confiscation orders; [8] and
    3. Assistance in search and seizure. [9]
  1. In addition, the Bill seeks to amend and clarify the application of the Dual Criminality requirement for coercive forms of assistance with respect to foreign tax evasion offences.
  1. In respect of foreign requests for a court order to produce information or items [10] , Dual Criminality will not apply if the act or omission underlying a tax evasion offence falls within the act or omission prescribed under the MACMA.
  1. When Singapore designated tax evasion offences as money laundering predicate offences last year, the aim was to allow mutual legal assistance to be rendered in cases of wilful or fraudulent tax evasion. However, owing to the different types and names of taxes imposed in Singapore and overseas, there is some legal uncertainty about whether the dual criminality requirement would prevent Singapore from rendering assistance where there is clearly wilful or fraudulent tax evasion but the foreign tax evaded (e.g. capital gains tax) is not a tax that is imposed in Singapore.
  1. This amendment seeks to remove this uncertainty by expressly lifting the Dual Criminality requirement and making clear that Singapore can render assistance for foreign requests involving tax evasion offences, regardless of the type of tax evaded. This will help strengthen Singapore’s ability to assist in bona fide cases of wilful or fraudulent tax evasion.
  1. Dual Criminality will also no longer be required for the enforcement of foreign confiscation orders and for assistance in search and seizure orders in respect of foreign requests from jurisdictions that have Avoidance of Double Taxation Agreements (“DTAs”); Exchange of Information (“EOI”) arrangements; or international tax compliance agreement with Singapore.
  1. These changes demonstrate Singapore’s commitment towards combating cross-border financial crimes and address any misperception that Singapore is a shelter for tax-illicit monies.
  1. Create a standalone MLA list and to include all serious offences
  1. Second, the types of offences for which mutual legal assistance can be rendered under the MACMA will be expanded. A standalone list of offences will be introduced into the MACMA, and this list of offences will determine whether mutual legal assistance requests may be made by Singapore, or made to Singapore by a foreign country for a coercive form of assistance where the Dual Criminality requirement is applied. [11] This will be done by amending the definitions of “drug trafficking offence” and “serious offence”.
  1. Under MACMA, as it currently stands, mutual legal assistance requests may be made or provided if the request concerns an offence that falls under two categories of offences under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (or the “CDSA” for short). These are:
    1. Drug trafficking offences; or
    2. Serious offences as defined in the CDSA (which are generally money-laundering offences).
  1. These CDSA Schedules also determine whether the Dual Criminality requirement is satisfied since the equivalent Singapore offence must be one that is listed under those two Schedules.
  1. The present link between MACMA and the offences in the CDSA has existed since the MACMA was enacted in 2000. The CDSA lists serious offences, but generally excludes offences that are unlikely to be linked to money-laundering. An example of a serious offence not covered by the CDSA would for example be the offence of causing death by a rash or negligent act.
  1. The Bill will thus de-link, from the CDSA, the type of offences for which mutual legal assistance requests can be made or provided. It will create a standalone list of such offences within MACMA itself. This will allow offences which are not linked to money-laundering, such as selected Road Traffic Act offences, to be added to the mutual legal assistance framework. All offences listed under the First and Second Schedules of the CDSA have been imported into the MACMA while some additional offences have been added to the MACMA Schedule of “serious offences”.
  1. Further, in order to ensure that all serious offences are covered by the MACMA, the Bill will introduce a “catch-all” provision whereby mutual legal assistance will be available for all Singapore offences carrying a maximum sentence of at least 4 years’ imprisonment. This threshold is pegged to a similar level as that prescribed in the United Nations Convention Against Transnational Organised Crime, to which Singapore is party.
  1. Both of these amendments will allow Singapore to provide and obtain international mutual legal assistance for a wider scope of serious offences.
  1. Permit the enforcement of foreign confiscation orders where they apply to instrumentalities of all serious offences
  1. The next set of amendments relate to instrumentalities for serious offences. An instrumentality of an offence refers to the instrument or tool used in connection with the commission of an offence, e.g. a car which is used to smuggle cigarettes into our borders.
  1. Currently, Singapore can assist in the enforcement and satisfaction of a foreign confiscation order by confiscating instrumentalities relating to drug offences only. The Bill introduces an amendment to expand the scope of assistance to all serious offences and align the MACMA with the domestic confiscation order regime.
  1. Aligning with amendments made in the amendments made to the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Bill 2014
  1. Fourth, the Bill introduces amendments that were moved earlier by the Ministry of Home Affairs for the CDSA that are equally applicable in the context of mutual legal assistance, such as extending the application of legal privilege to in-house counsel, amending the definition of a “financial institution”, and removing the requirement for a certificate by a foreign authority to prove a foreign offence.
  1. Conclusion
  1. These amendments will enable Singapore to remain a responsible and effective member of the wider international cooperation network in the war against transnational crimes.
  1. Madam Speaker, I beg to move.

[1]For example, the routes for exporting heroin to Australia have increased from 10 countries in 2000-2001 to 20 countries in 2010-2011, of which the most prominent routes by weight were Malaysia, Pakistan, Viet Nam, Cambodia and Singapore. https://www.unodc.org/documents/southeastasiaandpacific//Publications/2013/TOCTA_EAP_web.pdf Mutual legal assistance requests received by Singapore have increased from 67 in 2007 to 134 in 2013.
[2]The definition of dual criminality is taken from the definition of “foreign serious offence” in the existing MACMA. Note however that this definition will be deleted and the dual criminality definition will be shifted to the new s 20(3) [see clause 4 of the MACMA Amendment Bill 2014]
[3] Part III, Division 3.
[4]Part III, Division 4.
[5]Part III, Division 7.
[6]Part III, Division 8.
[7]Part III, Division 2.
[8]Part III, Division 5.
[9]Part III, Division 6.
[10]Part III, Division 2.
[11]This is done by replacing the definitions of “drug trafficking offence” and “serious offence” in section 2(1) of the MACMA. These terms will subsequently refer to offences listed in the new First and Second Schedules of the amended MACMA.

Factsheet to the Mutual Assistance in Criminal Matters (Amendment) Bill (0.07MB)

Last updated on 08 Jul 2014