What happens when a criminal record under Section 377A is rendered spent in Singapore?

SINGAPORE: Ex-offenders whose criminal records have been rendered spent can legally declare they have no such record, but this may not mean that their employers won't find out about it.

A potential employer could get around this but simply asking job applicants not only about criminal records but whether they have previously been convicted in court, lawyers told CNA.

Those who want to apply for a job that they are lawfully disqualified from due to their conviction will also have to declare their records even if they have been rendered spent. This includes doctors convicted of certain offences, such as those involving dishonesty.

The issue of spent records resurfaced last week, after the Ministry of Home Affairs (MHA) said that men who were convicted under the now-repealed Section 377A of the Penal Code can apply to have their records spent.

The colonial-era Section 377A, which criminalised sex between men, was repealed in November 2022.

According to MHA’s records, 17 people who were convicted between 1988 and 2007 over consensual, private, homosexual acts between adults are still alive.

The ministry told CNA last Friday (Jan 12) that five of these 17 men have already had their records automatically rendered spent after being crime-free for five years.

No one has applied to have their Section 377A conviction records rendered spent since it was repealed, it added.

Criminal lawyers shared with CNA what it means when someone’s records are rendered spent, including how it impacts their job or travel prospects, and how it can happen automatically.

WHAT IS A SPENT RECORD?

A spent record means that a person is deemed to have no record of that conviction. They can lawfully answer or declare “no” if asked whether they have a criminal record.

If an offence falls under the category of a “registrable crime”, it is registered as a criminal record. Such crimes include offences ranging from shoplifting to illegal gambling.

Under the Registration of Criminals Act, a person’s record is automatically rendered spent if they do not commit new offences within five years.

The objective for allowing some records to be spent is to provide a second chance for ex-offenders who have paid their dues and stayed away from crime, then-Senior Minister of State for Home Affairs Ho Peng Kee said in his parliamentary speech in 2005 to amend the Act.

This could help them reintegrate into society without having a stigma hanging over their head, said Ms Harjeet Kaur, an associate at Withers KhattarWong law firm.

Mr Cory Wong, director at Invictus Law Corporation, said it also shapes public perception of ex-offenders and helps them not to give up on living meaningfully and purposefully.

Not all crimes can be rendered spent – for example, where a person was sentenced to more than three months' jail, fined more than S$2,000 (US$1,500), or is a repeat offender. 

Those convicted of any offence under the Third Schedule of the Registration of Criminals Act cannot have their records spent as well. These offences include rioting, culpable homicide, attempted murder, several sex offences like molestation, and voluntarily causing grievous hurt.

Offences under Section 377A carried a punishment of up to two years in jail.

If someone’s criminal record cannot be automatically rendered spent, they can apply to the Commissioner of Police – who serves as head of the Singapore Police Force  – to have their records treated as spent. This includes those convicted under 377A.

Otherwise, the person would continue to have a criminal record, said MHA.

They should continue to declare this record as required until the Commissioner decides to render the record spent.

SOME STILL HAVE TO DECLARE

Ms Kaur pointed out some exceptions listed in the Registration of Criminals Act which dictate that some records must still be declared, even though they have been rendered spent.

For instance, people must declare past criminal records when applying for an appointment or employment in any office or profession that they could be disqualified from under the law, due to their conviction.

Mr Wong raised examples like property agents, who have to fulfil a requirement to be “fit and proper” to be registered, and lawyers who have to be “good character” to be admitted to the Bar.

The Monetary Authority of Singapore (MAS) also sets out criteria for those carrying out MAS-regulated activities, including being competent, honest and having sound financial standing.

These mean that applicants must not have any dishonesty-related convictions. If someone applying for these vocations has a spent criminal record for offences like cheating or criminal breach or trust, they would have to declare it, said Mr Wong. 

Ex-offenders must also declare their records when investigated or prosecuted for any offence, or if they are charged in court again.

“This is as far as Singapore law is concerned, but we might not be able to say the same for foreign laws during, say, travel visa applications,” said Mr Wong from Invictus.

Apart from these exceptions, Mr Wong said his law firm once advised an aspiring law student to “err on the side of caution” and declare his past criminal record when he applies to become a lawyer, even though his record for a cheating conviction would have been spent by then.

Lawyer Mark Yeo pointed out an apparent "gap in the legislation" that he said the government should look into.

Employers and other law enforcement agencies seldom ask about criminal records now, since not every offence leads to a criminal record and such records can get spent, said the director of Fortress Law.

“These employers will almost invariably ask questions like: ‘Have you previously been charged for any offences’ or ‘Do you have any past convictions’, which are technically not questions about the criminal record,” Mr Yeo pointed out.

“It’s something that the government ought to address because it cuts against the spirit of rendering convictions spent.”

LGBTQ GROUPS SPEAK OUT

When approached by CNA on the government’s decision to allow Section 377A convictions to be rendered spent, LGBTQ (lesbian, gay, bisexual, transgender and queer) groups in Singapore said they found it meaningful in several ways.

Mr Leow Yangfa, executive director of Oogachaga, said it shows there is “no benefit to society” in maintaining these convictions, not even under the pretext of protecting public morality.

“It sets an important tone that the government was not just paying lip service when it led the way in repealing 377A in parliament in 2022, and that it is prepared to take proactive action in righting past wrongs,” added Mr Leow.

A spokesperson from Prout, a meet-up and support platform for the LGBTQ community, said they were “heartened” to hear about the announcement.

“This is a step in the right direction, to show compassion towards a community that has had a law hang over their heads for generations. We hope that the people affected are now able to focus on healing well and living free,” the spokesperson added.