• NUS came under fire for reporting the sexual misconduct case to the police even though the victims did not wish to do so
• The university said that making the report was mandatory under Section 424 of the Criminal Procedure Code
• Lawyers are divided as to whether NUS had an 'absolute' obligation to make the report

SINGAPORE — The National University of Singapore (NUS) said on Friday (Oct 23) that it was legally obliged to file a police report against a former lecturer for sexual misconduct, even though the alleged victims had decided not to do so.

The university has come under fire for reporting former Tembusu College lecturer Jeremy Fernando to the police on Wednesday. The Association of Women for Action and Research (Aware), a gender equality advocacy group, questioned why NUS had made this decision even though the alleged victims chose not to make a police report.

When asked if NUS was obliged to make the police report, Professor Tommy Koh, rector of Tembusu College, told the media at a press conference at the college on Friday that it is NUS’ “civil duty to report it”.

Without going into the specifics of the case, he said: “Suppose I saw (someone) viciously beating up his spouse or girlfriend, and the spouse or girlfriend is so terrified of him that she doesn’t want to report his offence to the police.

“I, being a witness, have the obligation to report him, and I will do so even if the victim doesn’t want me to do so.”

Asked if the students will have to assist the authorities with the investigations, Prof Koh said: “Of course, the police will have to call them up, and will also cross interview the alleged offender.”

In a Facebook post on Thursday, Aware had raised the question of whether the university had made the police report because of the mandatory reporting clause in Section 424 of the Criminal Procedure Code.

Section 424 states that anyone aware that a person has committed, or intends to commit, various specified offences, should report the matter to the police “in the absence of reasonable excuse”.

Associate Professor Leong Ching, NUS dean of students and associate provost of special projects, said that NUS was bound by this clause, and had made the police report after trying to contact the two students involved.

“We succeeded in informing one of them, but could not reach out to the other,” said Assoc Prof Leong. “We informed both students immediately after (making the police report).”

Prof Koh said that there are cases where the university could delay such a report, such as if it is assessed that the victims may harm themselves or that reporting the case will seriously harm the mental health of the complainant.

Asked if the two students had been assessed in this regard before the report was made, Assoc Prof Leong could not confirm this and said that the university would have to check with its victim care unit.

Aware had also said in its post that from a survivor-centric perspective, it is not ideal to file a police report if a survivor is reluctant.

Asked by TODAY if making the police report without a student’s consent would discourage future victims from speaking up, Assoc Prof Leong said that it is “one of the most difficult dilemmas” which the university faces.

“There is indeed this risk if you make it seem very onerous right from the get-go. There is no good answer… the approach of the victim care unit is to keep pace with the complainant, to meet them where they are and determine whether there is a serious enough allegation,” she added.

Prof Koh declined to disclose any further details of the case as the matter is under police investigation.

“I will not make a judgement on whether the charges are proven or not, because this is in the hands of the police and subsequently in the hands of the public prosecutor,” said Prof Koh, who is also an international law professor and veteran diplomat.

LAWYERS DIVIDED

In response to queries from TODAY, lawyers were divided as to whether NUS was obliged to make a police report. And even if it did, the obligation may not be absolute, said one of the lawyers interviewed. 

Lawyer Luke Lee from Luke Lee & Co said that a number of offences are not covered by the mandatory reporting provisions of Section 424 of the Criminal Procedure Code. He was not referring to the circumstances of this case.

For example, the offence of molestation, under Section 354 of the Penal Code, or the offence of rape under Section 376 of the Penal Code, are not covered by the Criminal Procedure Code, he said.

“There's no obligation to report those offences,” said Mr Lee.

Mr Chooi Jing Yen, a partner at Eugene Thuraisingam LLP, said that Section 424 would not apply if the person proposing to make a report had no personal knowledge of whether an offence had been committed.

“Usually, it would be the complainant or victim in question who would have this personal knowledge,” said Mr Chooi. “Someone who is told about the events after the fact would not.”

He added: “Arguably, the organisation would also be able to rely on this fact as a reasonable excuse for not making a police report.”

Disagreeing, Mr Marshall Lim, criminal defence lawyer and associate director of Invictus Law Corporation, said that making a report to the police in such circumstances may be a duty imposed on NUS under Section 424.

This would be the case if allegations of sexual misconduct were made known to NUS and if the misconduct is a potential offence under the Penal Code.

“However, the duty is not absolute in that parties who are aware of the commission of relevant offences may have a reasonable excuse for not reporting them,” he added.