Voyeurism in Singapore

Section 377BB of the Penal Code came into force in 2020 and sets out a series of provisions aimed at acts of voyeurism. This is the first time under Singapore law that there is a specific offence of voyeurism.

In a recent matter, Nicholas Tan Siew Chye v Public Prosecutor [2023] SGHC 35, the High Court of Singapore set out section 377BB and considered the appropriate sentencing framework for an offence under section 377BB(4).

In this matter, the accused pleaded guilty to two counts of voyeurism. In both cases, the accused took upskirt videos of female victims, knowing that they did not consent to it. The Appeal dealt with sentencing.

Before 2020, this matter would have been dealt with as an insult to the modesty of women or possession of obscene films.

This article will discuss voyeurism and section 377BB of the Penal Code. It will discuss the framework the court will apply when imposing a sentence and look at new offences related to voyeurism.

Section 377BB of the Penal Code

Under this section, a person (A) shall be guilty of voyeurism if they commit any of the following acts:

1. Intentionally observes another person (B) doing a private act without B’s consent and knows or has reason to believe B does not consent to being observed.
2. Operates equipment with the intention of enabling A or another person to observe a third person (B) doing a private act without B’s consent and knows or has reason to believe that B (whether B’s private act was recorded or not) does not consent to A operating equipment with that intention.
3. Intentionally or knowingly records another person (B) doing a private act without B’s consent and knows or has reason to believe that B does not consent to A recording the act.
4. Operates equipment without another person’s (B) consent with the intention of enabling A or another person (C) to observe B’s genitals, breasts if B is female, or buttocks (whether exposed or covered) in circumstances where the genitals, breasts, buttocks, or underwear would not otherwise be visible and knows or has reason to believe that B (whether B’s image was recorded or not) does not consent to A operating the equipment with that intention.
5. Intentionally or knowingly records without another person’s (B) consent an image of B’s genitals, breasts if B is female, or buttocks (whether exposed or covered) in circumstances where the genitals, breasts, buttocks, or underwear would not otherwise be visible and knows or has reason to believe that B does not consent to A recording the image.
6. Installs equipment or constructs or adapts a structure or part of a structure to enable A or another person to commit an offence under subsection (1), (2), (3), (4) or (5) shall be guilty of an offence.

In summary, section 377BB creates six offences related to observing, operating equipment to observe, recording or installing equipment, or constructing/adapting structures to commit any of these offences.

It is also classified between the victim “doing a private act” or observing or recording a victim’s “genitals, breasts, buttocks, or underwear which would not otherwise be visible”.

It must be noted that it is an offence regardless of whether the accused recorded the victim doing a private act or recorded the victim’s genitals, breasts, buttocks, or underwear. Operating equipment intending to observe, or record is an offence.

Can women be guilty of voyeurism?

Yes, section 377BB refers to “any person”, and the inclusion of “breasts if B is female” implies that men can also be victims of voyeurism. It is a gender-neutral offence and can be committed by or against both men and women.

Sentencing considerations for voyeurism

Section 377BB(7) stipulates that a person found guilty of voyeurism shall be punished with imprisonment of up to two years, or with a fine, or with caning, or any combination of these three.

If the victim is younger than 14, the sentence can be imprisonment for up to two years, and a fine or caning.

In Nicholas Tan Siew Chye v Public Prosecutor, the High Court held that when it comes to sentencing, the court has to strike a fine balance between deterrence on the one hand and rehabilitation on the other.

How this balance must be struck depends on the facts of each case. The court will consider factors such as the offender’s age, propensity for rehabilitation, and mental condition.

The court will also consider the seriousness of the offence and the harm caused to the victim. If severe, deterrence may displace rehabilitation as the dominant sentencing consideration, even if the offender shows a high propensity for reform.

The court made the following comments regarding sentencing for an offence under section 377BB(4):

• The offence offends the sensibilities of the general public, not just the victim.
• It involves an appalling attempt to invade the victim’s privacy.
• It is an affront to our society’s fundamental value that no woman or man should have to suffer the indignity of having his or her modesty outraged or insulted.
• The public should feel safe as they go about their daily life, regardless of whether the offence was committed in a private or a public location.
• Even in situations of failed recordings, there remains a danger of considerable emotional harm to the victim.
• In the case of a section 377BB(4) offence, it entails a certain degree of furtiveness, planning, and premeditation on the offender’s part.
• The rise in voyeurism offences is in part attributable to advances in technology. Strong sentences may be timely and necessary to curb the rising number of voyeurism offences.

The court then referred to the two-stage, five-step sentencing framework set out in Logachev Vladislav v Public Prosecutor [2018] 4 SLR 609 and remarked that it is particularly suitable for voyeurism offences such as section 377BB(4) offences.

Stage 1: In simple terms, look at the seriousness of the offence by considering the harm caused and the offender’s culpability, and identify a starting point in the applicable sentencing range.

Stage 2: Adjust the starting point by considering offender-specific aggravating and mitigating factors.

Factors the court may consider include:

• The degree of invasion of the victim’s privacy – was there a recording? Was it distributed to others?
• Violation of the victim’s bodily integrity – was there any physical contact?
• Was there an expectation of privacy?
• How many victims were involved?
• The age of the victim.
• The alarm, humiliation, or distress caused to the victim.
• The degree of premeditation and planning – was the victim stalked?
• The type and sophistication of the equipment used.
• Steps taken to evade detection.
• Was it repeated conduct or once-off?
• Was there a relationship of trust?
• Show of remorse.
• A clean criminal record.
• Possibility of rehabilitation.
• The offender’s mental health.

Since voyeurism is still a relatively new offence, we will follow the outcome of future cases to see how the courts apply the sentencing frameworks in other voyeurism offences.

Offences related to voyeurism

The 2020 amendments also introduced other offences relating to voyeurism.

Distribution of voyeuristic images or recordings

Section 377BC makes it an offence for a person to intentionally and knowingly distribute or possess a recording for distribution, knowing or having reason to believe that the recording was obtained through voyeurism and that the victim did not consent to the distribution.

If convicted, the punishment is a maximum of five years imprisonment, or a fine or caning, or any combination thereof. If the victim is younger than 14, mandatory imprisonment of up to five years and a fine, or caning.

Possession of or gaining access to voyeuristic or intimate images or recordings

Section 377BD makes it an offence to be found in possession of a voyeuristic image or recording, or gain access to such image or recording of another person, knowing, or having reason to believe that:

• the image or recording was obtained through voyeurism; or
• it is an intimate image or recording;
• the possession or access is without the consent of the person in the image or recording; and
• the possession or access is likely to cause humiliation, alarm, or distress to the person in the image or recording.

If convicted under this section, the punishment is a maximum of two years imprisonment, or a fine, or both. If the person in the image or recording is younger than 14, mandatory imprisonment of up to two years and a fine, or caning.

Sec 377BE(5) defines “intimate image or recording” as an image or recording of:

• a person’s genital or anal area (bare or covered by underwear).
• a female’s breasts (bare or covered by underwear).
• a person doing a private act.

Distribution or threatening to distribute an intimate image or recording

Section 377BE makes it an offence to intentionally or knowingly distribute or threaten to distribute an intimate image or recording of another person without that person’s consent to distribution, and who knows or has reason to believe that the distribution will cause or is likely to cause, the person humiliation, alarm, or distress.

If convicted of this offence, the punishment is a maximum of 5 years in prison, or a fine, or caning or any combination of such penalties.

If the victim is younger than 14, mandatory imprisonment of up to 5 years and the perpetrator will be fined or caned.

Please seek legal advice if accused of voyeurism

Facing a charge of voyeurism is serious. Besides the possibility of imprisonment, a conviction will result in you having a criminal record. You should seek legal advice as soon as possible.

If you are younger than 21 years old, there is a possibility that you may qualify for probation instead of imprisonment, and in certain circumstances, your criminal record might be wiped clean after a conviction.

An experienced lawyer will evaluate your case and advise on the best strategy for your case.