What is Entrapment and is It Legal in Singapore?

Last updated on April 5, 2024

woman pointing gun

Entrapment happens when a party is instigated or pressured by another person into committing an offence which he or she would not have committed otherwise. This other person can be working on his own or acting for the authorities.

Entrapment happens a lot in movies and television shows. A common trope is a police officer pretending to be a drug addict. He then causes another person to procure drugs on his behalf. That person would then be charged with drug trafficking.

As presented in the example above, entrapment requires an element of instigation. That is causing another to commit an offence through intentional misrepresentation or concealment of facts. It is not simply providing another party with the opportunity to commit an offence.

An example of providing an opportunity would be if the police officer in the example above had instead procured the drugs from the drug dealer himself. He would then only be providing an opportunity for the drug dealer to commit a drug trafficking offence. Here, there is no misrepresentation or concealment as the police officer is not bound to inform the drug trafficker that he is a police officer.

This article will discuss:

Is Evidence Obtained From Entrapment Legal in Singapore?

Yes, obtaining evidence through entrapment is legal in Singapore and such evidence is admissible, or can be accepted, by the court if it is relevant to the case.

However, the court can deny such evidence if the harm that it causes to the parties in the case is higher than its usefulness in proving that case. This principle also applies to illegally obtained evidence.

Illegally obtained evidence is evidence that is unlawfully or improperly obtained.

An example of illegally obtained evidence is a stolen document proving another party’s tax fraud. While the person who stole the document may be guilty of theft, that document would still be admissible as evidence against that other party in a separate case of tax fraud. Entrapment is part of this wider category of illegally obtained evidence. However, illegally obtained evidence is different from entrapment because it lacks that element of instigation.

Despite these differences, the Singapore court has decided not to treat entrapment or illegally obtained evidence differently when it comes to admissibility. Therefore, regardless of whether a particular piece of evidence had been obtained illegally or through entrapment, this evidence can still be admitted so long as it is relevant, and more useful than harmful.

The principle that all evidence is permitted if it is relevant to the case also applies regardless of whether the evidence obtained by entrapment had been conducted by a private organisation or by the state.

The main difference between private and state entrapment is the party conducting the entrapment. In private entrapment, the party conducting the entrapment is not acting for the state, or the government.

For example, a case of a private association attempting to weed out copyright infringement by instigating another party to commit software piracy could be considered private entrapment. In contrast, state entrapment involves someone acting for the state, usually a law enforcement officer.

In both private and state entrapment, there is no difference in their practical effect. The underlying issue is whether the conduct of the entrapping parties was unlawful.

While evidence obtained through entrapment is admissible in our courts, the act of entrapment itself may be illegal if the unlawful conduct of the party conducting the entrapment was egregious. If so, the person who abetted the entrapped person into committing an offence may themselves also be found guilty of the offence of abetting another person to commit an offence.

An example of egregiously unlawful conduct would be inducing someone without any criminal tendencies into committing a serious offence.

For example, in cases of state entrapment where a law enforcement officer pretends to be interested in buying drugs to entrap drug dealers into selling drugs, the officer would generally not be prosecuted for trying to buy drugs (which is otherwise an illegal act). This is because the officer was promoting a socially desirable objective in the form of curbing the drug trade.

If law enforcement officers were prosecuted for every drug trafficker they successfully entrap, they would be hampered from effectively performing their duties.

However, if the law enforcement officer’s unlawful conduct was egregious, such as if they had coerced a person who has no interest in drugs into buying them, the state will not condone that behaviour and will prosecute the officer. Failure to do so may be unconstitutional because it would not be treating law enforcement officers, and those arrested for the same offence, equally.

Can Entrapment be Used as a Mitigating Factor or Defence in an Accused’s Case?

In Singapore, entrapment is not a defence. This is because the fault element and physical act of the offence would have been committed in most cases. It does not matter that the offender had been instigated to do so.

Depending on the facts of the case, however, it may be possible for entrapment to be considered a mitigating factor during sentencing. The court will examine the facts to determine the impact (if any) the entrapment had on the culpability, or guilt, of the offender.

If the entrapment had only provided an opportunity for an accused to commit the crime, then it would have no mitigating value. For example, if an undercover officer merely expressed interest in underage sex and the offender subsequently arranged for an overseas trip engaging in underage sex tourism, the entrapment would not have any mitigating value. This is because the undercover officer merely provided an opportunity to commit the crime and the offender might have committed the crime regardless.

However, in situations where an offender with no criminal tendencies was induced to commit a crime he or she would not have committed, the entrapment may have some mitigating value.

Case study: German businessman who promoted overseas child sex tours to undercover police officers jailed

In 2019, German businessman, Michael Frank Hartung, was sentenced to 5.5 years’ jail for distributing information that was intended to promote commercial sex with minors in the Philippines, to undercover police officers. During mitigation, Michael’s defence submitted that he was incited and instigated into divulging such information by the undercover police officers who had entrapped and set him up. Thus, mitigating weight should be given.

However, the court found no evidence that Michael was incited, instigated or pressured in any way to divulge information. Instead, the evidence reveals a very willing Michael providing detailed information to the undercover police officers such as advice on the typical challenges faced when taking young girls to city hotels for sex, and even suggested solutions.

The police officers merely approached Michael as an intending participant in the same activities and provided nothing more than an opportunity for the crime to be committed.

The court, therefore, concluded that there was no significant mitigating factor in favour of Michael.

If you believe you have been entrapped into committing an offence, a lawyer can advise you whether the conduct of the entrapment was egregiously unlawful, or whether it can help reduce your sentence. If so, they can raise these arguments in court on your behalf to try and get the best possible outcome for you.

Do consider reaching out to one of our criminal lawyers for help with this matter.

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