Organized crime is nothing new to Singapore. Secret societies commonly associated with violence, extortion and vice flourished in colonial Singapore in the 19th and early 20th centuries until they were eradicated in the early 1980s through the efforts of the Singapore Police Force. Organised crime groups (“OCGs”) pose a serious threat to the country’s safety and security, and comprise transnational, national, or local groupings of highly centralized enterprises run by criminals who engage in illegal activity, usually for monetary gain. Such activities include highly profitable trade in gambling, prostitution, the sale of pirated software and DVDs, and narcotics. Serious transnational criminal activities which OCGs may be involved in include drug trafficking, money laundering and unlicensed moneylending.
In its Press Release of 13 July 2015, the Ministry of Home Affairs (“MHA”) stated that while the situation in Singapore is under control, the experiences of other countries have demonstrated the need to decisively prevent OCGs from establishing a foothold in the country. It is against this background that the Organised Crime Bill (“Bill”) was developed and eventually introduced in Parliament on 13 July 2015. In developing the Bill, MHA considered the laws and practices of other jurisdictions which have similar legislation, such as the United Kingdom, Hong Kong, Canada, Australia and New Zealand, and the UN Convention on Transactional Organised Crime (“UNCATOC”), of which Singapore is signatory.
The Bill was introduced in Parliament on 13 July 2015, and passed on 18 August 2015 into law as the Organised Crime Act 2015 (“OCA”).
Definitions of “organised criminal group” and “group”
The term “organised crime group” is defined under the OCA as a group that has as its sole purpose or one of its purposes, the obtaining of financial or material benefit from the commission by any person (whether or not the person is a member of a group) of any serious offence as specified in the Schedule to the OCA, or of any act outside Singapore that, if it had occurred in Singapore, would constitute a serious offence under the OCA. A list of “serious offences” is set out in the Schedule to the OCA, and includes offences such as trafficking in arms under the Arms Offences Act, unlicensed moneylending under the Moneylenders Act, kidnapping under the Penal Code, engaging in corrupt transactions under the Prevention of Corruption Act, sexual exploitation of a child or young person under the Children and Young Persons Act, assisting another to retain benefits of drug dealing under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act, and gaining unauthorised access to computer material under the Computer Misuse and Cybersecurity Act.
The term “group” is in turn defined as a group of 3 or more individuals, whether or not resident in Singapore, and however organized or set up – eg. as a company or association or body of persons, corporate or unincorporated. The wide scope of the definition of the term is necessary to cover modern- day OCGs, which come in various forms and structures and may involve individuals residing in different jurisdictions.
Given the transnational nature of many organised crimes, the OCA is expressed to have extra-territorial coverage in order to be able to function effectively. The OCA covers: (i) persons in Singapore who are involved in OCG-related activities; and (ii) overseas persons who are involved in OCG-related activities which impact Singapore.
The OCA provides for a variety of preventive orders which can be issued by the Courts to prevent and restrict the activities of persons involved in organised crimes.
Organised Crime Prevention Orders (“OCPOs”) place restrictions on the activities of individuals and entities involved in organised crime activities. Examples of types of provisions that may be made in OCPOs with respect to individuals are prohibitions or restrictions on, or requirements in relation to their financial, property or business dealings or holdings; their working arrangements; the means by which they communicate or associate with others, or the persons with whom they communicate or associate; the premises to which the individuals have access; and their travels.
OCPOs with respect to corporate entities may include prohibitions or restrictions on, or conditions in relation to their financial, property or business dealings or holdings; the types of agreements to which they may be a party; the provision of goods and services by these entities; and the employment of their staff.
Financial Reporting Orders (“FROs”) require individuals involved in organised crime activities to make financial reports that set out their financial affairs as may be required by the court within a specified period. The report must be submitted at certain periods as prescribed in the FRO.
Disqualification Orders (“DOs”) may be made by the Courts to prohibit individuals involved in organised crime activities from acting as directors of local or foreign companies. A person who is subject to a DO cannot take part in the management of such companies.
Civil confiscation regime
The OCA introduces a civil confiscation (“CC”) regime whereby a person’s benefits from organised crime activity can be confiscated if the Public Prosecutor is able to prove, on a balance of probabilities, that the person has carried out an organised crime activity. Under this regime, civil confiscation does not require a criminal conviction. The non-conviction based CC regime is intended to: (i) eliminate the chance for persons to profit from carrying out organised crime activity; and (ii) remove any incentive for persons to carry out organised crime activity, and reduce their ability to do so.
Enhanced investigative powers for law enforcement agencies
In order to deal with organised crimes decisively and promptly - from the highest echelons of OCGs who mastermind and finance organised crime activities to their members on the ground who carry out such criminal activities - law enforcement agencies (“LEAs”) are empowered to investigate and obtain information from the Comptroller of Income Tax and the Comptroller of Goods and Services Tax. LEAs can also apply to the Courts for examination orders against persons who can provide information of value to civil proceedings relating to the OCPO, FRO or CC.
LEAs include the Singapore Police Force, the Central Narcotics Bureau, the Immigration & Checkpoints Authority and the Commercial Affairs Department.
Impact of the OCA on Gambling Operations and Intellectual Property Piracy
Notably, the list of serious offences stated in The Schedule of the OCA cover activities relating to gambling operations and intellectual property piracy. These include acting as a bookmaker under the Betting Act (Cap 21), cheating at play under the Casino Control Act (Cap 33A), keeping or using a place as a common gaming house under the Common Gaming Houses Act (Cap 49), providing unlawful remote gambling services (whether overseas or Singapore-based) under the Remote Gambling Act 2014, making infringing copies of works for sale or possessing infringing copies for purposes of sale or distribution under the Copyright Act (Cap 63), and falsely applying a registered trade mark to goods or services or selling such goods or services under the Trade Marks Act (Cap 332).
The classification of gambling and intellectual property related offences as serious offences under the OCA is similar to the approach taken in Hong Kong, whose Organized and Serious Crimes Ordinance covers offences under Hong Kong’s Gambling Ordinance, Trade Descriptions Ordinance and Copyright Ordinance. In contrast, while the list of serious offences under the UK Serious Crime Act 2007 includes trade mark and copyright offences, it does not include gambling offences.
Given that OCA has extra-territorial reach and introduces draconian measures such as preventive orders and the civil confiscation regime, it may be worthwhile for those involved in such activities – including foreign operators and nationals – to consider how they may be affected by the provisions of the OCA. This is especially so given that activities which take place overseas may be perfectly legal in those foreign jurisdictions, but if done in Singapore, would constitute a serious offence.
Effect on Gambling Operations
To the extent that the OCA applies to OCGs that obtain financial or material benefit from gambling operations and related activities that take place in Singapore, the application of the OCA is fairly straightforward. What is uncertain and potentially controversial is how it may be deployed to rein in a group of individuals who are not ordinarily resident in Singapore and who carry out remote gambling operations for profit outside Singapore, but are licensed to do so offshore or in the country where such operations take place. Since such activities would, if carried out in Singapore, amount to an offence under Section 11 (Prohibition against a Singapore-based remote gambling service) of the Remote Gambling Act, the group would be deemed to be an OCG and be criminally liable under the OCA. This would result in a rather curious situation where such individuals would not ordinarily be liable under Section 10 (Prohibition against overseas remote gambling service with Singapore-customer link) of the Remote Gambling Act if they do not have any Singapore customers or if they have exercised reasonable diligence to avoid having any Singapore customers, but would be liable under the OCA and be subjected to preventive orders and the civil confiscation regime under the OCA.
In addition, Section 10 of the OCA makes it an offence for a person in Singapore to allow an OCG to use any premises (whether within or outside Singapore) owned, occupied or controlled by that person to support, aid or promote the commission of an offence under Part 2 of the OCA or under any written law, which is for the purpose of conferring a financial or material benefit. Such a provision may be of concern to landlords who rent offices to those involved in the provision of remote gambling services.
Section 11 of the OCA makes it an offence for a person in Singapore to receive, retain, conceal, dispose of or otherwise deal with any property which is illegally obtained by an OCG. It is possible that the earnings of a foreign based remote gambling operator may be considered to have been “illegally obtained” such as to trigger the application of Section 11. Likewise, an individual who places and wins bets placed with a foreign operator whilst he is outside Singapore, but receives his winnings in Singapore, may fall within the scope of Section 11 of the OCA.
It is notable that Section 8 (Unlawful remote gambling) of the Remote Gambling Act has not been included as a serious offence under the OCA. Section 8 creates an offence for individuals in Singapore who gamble on overseas remote gambling websites or who use gambling services not provided by an exempt operator.
Intellectual Property Offences
Trade Marks Act
Generally, a party is liable in Singapore for the offence of falsely applying a trade mark to goods or services, or for importing or selling goods to which a trade mark is falsely applied, if the trade mark in question is registered in Singapore.
With the extra-territorial reach of the OCA, it is possible that even if the false application or sale takes place outside Singapore in a country where the trade mark is not registered (and hence no infringement of trade mark even arises), the persons engaged in such activities may nonetheless be deemed to constitute an OCG and be subject to the provisions of the OCA if that trade mark is registered in Singapore, even though no infringing activities take place in Singapore.
An even more curious situation that could potentially arise is where a corporate body is licensed to use a trade mark on goods or services in a foreign country, but is not licensed to do so in Singapore. Since if it were to use the trade mark in Singapore, such use would constitute an offence under 47 or 49 of the Trade Marks Act (and hence amount to a serious offence), the foreign licensee would be deemed an OCG and be subject to the provisions of the OCA.
The OCA lists offences under Section 136 (1) and Section 136(2) of the Copyright Act as serious offences. These provisions of the Copyright Act deal with the making or sale of articles which are infringing copies of a work, and the possession of such infringing copies for the purposes of sale or distribution respectively.
Therefore, if a body corporate were to obtain a licence to distribute certain works such as software or music in a foreign country, but not in Singapore, it would be deemed to be an OCG since its activities would, if it occurred in Singapore, would constitute a serious offence and subject it to the provisions of the OCA.
The OCA is largely intended to combat organized crime and provide the law with greater bite against the masterminds of OCGs, who can no longer hide their material gains from criminal activities. At the same time, the wide ranging classification of serious crimes and the extraterritorial effect of the OCA could possibly give rise to unintended consequences. While the purpose of the OCA is laudatory as part of Singapore’s continued efforts against organized crime activities, it remains to be seen how practical the application of the OCA will be, given its wide-ranging application.