Criminal and public

The future increase of Singapore's population to 6. 5 million will mean the influx of foreigners. This, coupled with the fact that many recent homicide cases have involved foreign workers, raises the essential question: should cultural defence continue to play the small role it does under the provocation defence or should it become a defence proper? It is submitted that the cultural defence should continue to play the role it does in the provocation defence and the cultural defence should be an additional factor determining the culpability of an individual in meting out individualised justice.

Chan Sek Keong asserts that the Penal Code reflects universal values of morality1. Given Singapore's status as a multi-racial and multi-religious society, this seemingly rings true at least with regards to homicide. However, on Haviland's definition, that "culture consists the abstract values, beliefs, and perceptions of the world that lie behind people's behaviour and which that behaviour reflects,"2 it is submitted that Singapore's culture as a whole is greatly influenced by western values and Singapore is not really multicultural.

Furthermore, cases like People v Kimura, suggest that there are slightly different cultural attitudes to homicide. Before we look at the problem of cultural defence, it is best to relook at the underlying principles of criminal punishment and the role that defences play. Punishment, as a "morally expressive undertaking"3, has several competing aims and effects which are retribution, deterrence, incapacitation and rehabilitation. "Retribution holds that an offender should receive punishment proportionate to the harm caused and blameworthiness or guilt.

"4 It could be both a justification as Immanuel Kant5 and Herbert Morris6 think that it is, or it could simply mean that punishment should fit the crime. The latter understanding ties in nicely with deterrence, working around the tension between the two concepts. Deterrence assumes that rational individuals are similarly situated; the hedonistic nature of humans means that punishment should deter people from committing crimes and properly tying in with retribution, a punishment that is morally proportionate would mean that deterrence could be effective.

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 public7. 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. "8 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. 9 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… "