Ng Kok Wai v Public Prosecutor 

Jurisdiction for Crimes Committed on the High Seas:
Ng Kok Wai v Public Prosecutor [2024] 3 SLR 1516, [2023] SGHC 306

I. Executive Summary

If a Singaporean commits an act which is an offence under Singapore law, while on a ship on the high seas, can he or she be tried and convicted by a Singapore court for it? The General Division of the High Court (“HC”) considered this question, and held that two requirements needed to be fulfilled for this to be possible: an applicable statutory provision that renders an act committed by the accused person outside Singapore an offence under a Singapore law (an “extraterritorial application provision”), and an applicable statutory provision that confers authority on the Singapore courts to try the accused person for the offence in question (a “jurisdictional provision”).

The Singapore Penal Code (Cap 224, 2008 Rev Ed) (“Penal Code”) sets out certain acts that are considered criminal offences in Singapore. The HC held that section 3 of the Penal Code permits the extraterritorial application of Penal Code offences to cover offending acts committed outside the territory of Singapore, if there exists an applicable jurisdictional provision. The HC further held that the requirement for an applicable jurisdictional provision is satisfied by section 50(2)(c) of the State Courts Act 1970 (2020 Rev Ed) (“SCA”), which empowers the District Court (“DC”) to try offences committed “by any person who is a citizen of Singapore on the high seas or on any aircraft”. As such, Singaporeans cannot escape liability if they commit any Penal Code offence even while on a ship on the high seas.

II. Material Facts

A. Background

Ng Kok Wai (“Ng”), a Singapore citizen, was a passenger onboard the “World Dream” (“the Ship”), a Bahamas-registered cruise ship sailing on a three-day “cruise to nowhere”. The victim, a female Singapore permanent resident, occupied the cabin adjacent to Ng’s. On 13 December 2021, Ng climbed over the balcony separating the two cabins, and entered the victim’s cabin when no one was present. He took a brassiere belonging to the victim from her luggage, and left the luggage opened outside her cabin. Ng was arrested after the Ship returned to Singapore, and was initially charged with one count of house-breaking under section 451 of the Penal Code, and one count of theft under section 380 of the Penal Code.

B. Trial proceedings

In the DC, Ng claimed trial on the basis that he could not be held criminally liable in Singapore for the acts that he committed aboard a foreign-registered ship on the high seas. The parties agreed that the sections of the Penal Code relied upon by the prosecution to charge Ng did not, on their own, apply to criminal acts committed on a foreign-registered ship on the high seas. Hence, before the facts relating to the commission of the offences could be considered, the DC first needed to determine whether sections 380 and 451 of the Penal Code could actually apply extraterritorially (“the Preliminary Legal Issue”).

The DC held that sections 178 and 180 of the Merchant Shipping Act (Cap 179, 1996 Rev Ed) (“MSA”) provided the basis for the relevant Penal Code provisions to apply extraterritorially. Section 178 states that “[f]or the purpose of giving jurisdiction under this Act, every offence is deemed to have been committed, and every cause of complaint to have arisen, either in the place in which the offence actually was committed or arose or in any place in which the offender or person complained against may be.” Section 180 states that “[w]here any person is charged with having committed any offence on board any Singapore ship on the high seas or elsewhere outside Singapore or on board any foreign ship to which the person does not belong and that person is found within the jurisdiction of any court in Singapore which would have had cognizance of the offence if it had been committed on board a Singapore ship within the limits of its ordinary jurisdiction, that court has jurisdiction to try the offence as if it had been so committed.”

The DC held that section 178 of the MSA gave sections 380 and 451 of the Penal Code extraterritorial effect. The DC also held that section 180 of the MSA conferred on the Singapore courts the jurisdiction to hear and determine the charges that Ng faced. The Prosecution subsequently amended the charges to reflect sections 178 and 180 of the MSA as the relevant provisions that extended the territorial reach of sections 380 and 451 of the Penal Code.

Ng then admitted to committing the offences, and was convicted of the amended Charges by the DC. He was sentenced to four months’ imprisonment. However, Ng subsequently appealed to the HC seeking to overturn the DC’s ruling on the Preliminary Legal Issue. (This was because if such an appeal succeeded, the Singapore courts would have no jurisdiction over him, regardless of his commission of the underlying acts.)

III. Issues on Appeal

The HC dismissed the appeal, but relied on grounds different from the DC. The HC held that the question was whether the acts committed by Ng amounted to a criminal offence under the Penal Code, given that they took place outside Singapore, and the sections he was charged with (sections 380 and 451 of the Penal Code) did not, on their own, have extraterritorial application. The legal issue was thus whether there was some other statutory provision, such as sections 178 or 180 of the MSA or section 3 of the Penal Code, that extended the remit of sections 380 and 451 of the Penal Code such that they had extraterritorial application here.

Specifically, the HC considered the following:

1. The principles governing the prosecution of Singaporeans for offences committed in international waters,
2. Whether section 178 of the MSA extended the extraterritorial reach of the relevant statutory offences under the Penal Code,
3. The effect of section 3 of the Penal Code on the applicability of sections 380 and 451 of the Penal Code, and
4. The effect of section 180 of the MSA.

A. The principles governing the prosecution of Singaporeans for offences committed in international waters

The HC first emphasized that the Singapore courts adopt a purposive approach to statutory interpretation, meaning that they focus on ascertaining Parliament’s intent in enacting a statutory provision.

The HC then considered in what circumstances would a Singaporean be held liable for an act committed outside the territory of Singapore which, if committed within Singapore, would constitute an offence here and which the Singapore courts would have jurisdiction to try. The HC noted the characterisation of certain statutory provisions as having the effect of either: conferring jurisdiction on the Singapore courts to try offences; or extending the territorial application of our domestic criminal laws to places beyond the territory of Singapore. The former was concerned with the authority of a Singapore court to try a matter, which in this context would have taken place outside the boundaries of Singapore. The latter was concerned with whether a provision of our criminal law, which would typically proscribe conduct that takes place here, has had its reach extended so that it also proscribes conduct that takes place beyond the territory of Singapore. The HC stressed that it was important to distinguish a court’s criminal jurisdiction (meaning its authority to try a criminal case) from the application of domestic statutes to criminalise acts committed outside the territory of Singapore.

There are two requirements that must be met before an accused person may be tried and convicted in Singapore for acts committed outside Singapore: (i) whether there is an applicable statutory provision that confers authority on the Singapore courts to try the accused person for the offence in question (jurisdictional provisions), and (ii) whether there is an applicable statutory provision that renders an act committed by the accused person outside Singapore an offence under a Singapore law (extraterritorial application provisions).

(i) Jurisdictional provisions. The HC noted that in a criminal matter, the relevant statutory provisions that confer upon the Singapore courts their criminal jurisdiction are generally set out in these provisions: section 15 of the Supreme Court of Judicature Act 1969 (2020 Rev Ed) (“SCJA”), in respect of the HC’s jurisdiction; section 50 of the SCA, in respect of the DC’s criminal jurisdiction; and section 51 of the SCA, in respect of the Magistrates’ Court’s criminal jurisdiction.

The relevant portion of section 50 of the SCA for the purposes of this case is subsection (2)(c), which states that “the criminal jurisdiction of a District Court is exercisable where the offence is committed … by any person who is a citizen of Singapore on the high seas”. The HC thus held that section 50(2)(c) of the SCA gave the DC the jurisdiction to try Ng for the alleged offences he committed on board the Ship, as he is a Singapore citizen and the relevant acts occurred on the high seas.

However, the HC stressed that it remained necessary to establish that Ng’s alleged acts were indeed an offence under the relevant Penal Code provisions, i.e. sections 380 and 451 of the Penal Code. This raised the question of whether, and if so, how those provisions of the Penal Code may be applied extraterritorially (meaning, whether they applied to acts committed outside of Singapore).

(ii) Extraterritorial application provisions. Generally, acts or omissions committed outside the territory of Singapore would not constitute an offence as these acts are not considered within the reach of the applicable domestic criminal legislation. This is unless there is some other statutory provision extending the application of the domestic criminal legislation extraterritorially, or if the statutory offence itself reflects Parliament’s intention that it is to apply extraterritorially (the HC termed this the “presumption of territoriality”). The rationale for this presumption is that other nations may regard it as an unjustifiable interference with their sovereignty if a State were to extend the reach of its criminal legislation over the conduct of persons in a foreign State’s territory. This presumption is encapsulated in section 2 of the Penal Code, which provides that “[e]very person shall be liable to punishment under this Code and not otherwise for every act or omission contrary to the provisions thereof, of which he is guilty within Singapore”.

The HC noted that sections 380 and 451 of the Penal Code did not, on their own, have extraterritorial application. Thus, the real issue was whether there was some other statutory provision that extended the remit of these provisions, such that they had extraterritorial application in the circumstances of this case.

B. Whether section 178 of the MSA extended the extraterritorial reach of the relevant statutory offences under the Penal Code

The HC agreed with the DC that section 178 of the MSA was an extraterritorial application provision. However, the HC differed with the DC on the scope of section 178, which turned on the interpretation of the words “every offence”.

The DC interpreted the words “every offence” to mean “every act or omission which has been defined to be illegal in any Singapore legislation”, while the HC held that the words should be construed as relating only to offences under the MSA. This was because there were at least two possible interpretations of the phrase: namely, offences under the MSA only, or offences generally under Singapore criminal law. As the phrase was ambiguous, the HC referred to the Explanatory Statement to the Merchant Shipping Bill 1995 for assistance in interpretation.

The HC found that the Explanatory Statement contained a clear and unequivocal statement that section 178 of the MSA “makes provision as to jurisdiction in respect of offences under the MSA” only. Further, the broader reading suggested by the DC would expand the scope of section 178 far beyond what appeared to have been envisaged by Parliament in enacting the Act.

C. The effect of Section 3 of the Penal Code on the applicability of sections 380 and 451 of the Penal Code

As section 178 of the MSA did not permit the extraterritorial application of offences under the Penal Code, an alternative provision had to be present before Penal Code offences could apply extraterritorially. The HC found section 3 of the Penal Code to be such a provision.

Section 3 states that “[a]ny person liable by law to be tried for an offence committed beyond the limits of Singapore, shall be dealt with according to the provisions of this Code for any act committed beyond Singapore, in the same manner as if such act had been committed within Singapore.” The HC considered section 3 contained two limbs, the “Condition Limb” and the “Operative Limb”. The Condition Limb requires as a prerequisite that there exists an applicable jurisdictional provision, while the Operative Limb states that an act criminalised under the Penal Code may, if it were committed outside the territory of Singapore, be deemed to have been committed within Singapore provided the Condition Limb is satisfied. The HC held that when section 3 is read as a whole, the Operative Limb permits the extraterritorial application of Penal Code offences to cover offending acts committed outside the territory of Singapore, so long as the Condition Limb is satisfied. In short, there must be a jurisdictional provision empowering the Singapore court to try a person for an alleged offence committed outside of Singapore.

The HC further held that the Condition Limb was satisfied by section 50(2)(c) of the SCA, which empowered the District Court to try offences committed “by any person who is a citizen of Singapore on the high seas”. Since Ng a Singapore citizen who broke into the victim’s cabin and stole her brassiere while on the high seas on board the Ship, the requirements of the Condition Limb were met. It thus followed that under the Operative Limb, Ng’s acts would be treated as though they occurred in Singapore. Thus, Ng had committed acts that were punishable under sections 380 and 451 of the Penal Code.

The HC also considered that such a reading would not lead to an overly-wide extraterritorial application of the Penal Code, as all the situations where jurisdiction arises by virtue of section 50 of the SCA (or for that matter section 15 of the SCJA in respect of the HC’s criminal jurisdiction, or section 51 of the SCA, in respect of the Magistrates’ Court’s criminal jurisdiction) require a material nexus to Singapore. For instance, section 50 of the SCA states that the DC has criminal jurisdiction only over offences committed: (a) within Singapore; (b) on board any ship or aircraft registered in Singapore; (c) by any person who is a citizen of Singapore on the high seas or on any aircraft; and (d) in any place or by any person if it is provided in any written law that the offence is triable in Singapore. It follows that no person who has committed in a foreign state an act criminalised in Singapore will be liable to be tried in Singapore for committing an offence under the Penal Code by virtue of section 3, unless there is some other specific legislative provision having this effect.

D. The effect of section 180 of the MSA

Given its above holdings, it was not necessary to decide on the effect of section 180 of the MSA. Nevertheless, as parties’ submissions also centred heavily on it, the HC decided to make some brief observations on this section.

In the HC’s provisional view, section 180 appeared to be a jurisdictional provision.Regarding the scope of section 180 of the MSA, the HC also provisionally considered that section 180 would only apply to offences under the MSA, as supported by its context and the overall purpose of the MSA.

IV. Lessons Learnt

In 2019, more than 1.8 million cruise passengers passed through the ports of Singapore, heading for destinations across the world. While the issue of law enforcement aboard ships in international waters is a complex one, this case makes it clear that Singapore citizens can be prosecuted under the Penal Code if they commit criminal acts on cruise ships on the high seas.

Further, while the HC ruled that the DC had jurisdiction (under section 50(2)(c) of the SCA) to try Singapore citizens for offences committed on the high seas, it is likely that the Magistrates’ Courts and the General Division of the HC are also empowered to try such offences, under the jurisdictional provisions of section 51(2)(c) of the SCA and section 15(1)( c) of the SCJA, respectively, since these provisions have similar wording to section 50(2)(c) of the SCA.

Written by: Timothy Cheng Zhi Wen, 3rd-year LLB student, Singapore Management University Yong Pung How School of Law.
Edited by: Ong Ee Ing, Senior Lecturer, Singapore Management University Yong Pung How School of Law.