Liew Jin Xuan

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Singapore Law Review Annual Lecture 2017 - Prosecution in the Public Interest

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Singapore Law Review Annual Lecture 2017 — Prosecution in the Public Interest

Tan Ming Ren and Liew Jin Xuan

The Singapore Law Review Annual Lecture 2017 was delivered by Attorney-General, Mr Lucien Wong SC (“AG Wong”). Notably, AG Wong recently took office as Singapore’s 9th Attorney-General on 14 January 2017, succeeding Mr V K Rajah SC. AG Wong’s lecture, which was entitled “Prosecution in the Public Interest”, covered issues such as what the public interest is, and how prosecutorial discretion interacts with it.

AG Lucien Wong giving his speech.

Interestingly, AG Wong highlighted that the public interest permeates all the decisions that are made by the Attorney-General’s Chambers (“AGC”), and determining what is in the public interest is something which AGC officers engage in on a daily basis. Nevertheless, AG Wong opined that it is impossible to lay down a definitive statement as to what the public interest is because this has to be determined on a case-by-case basis.

The bulk of AG Wong’s speech was focused on the 4 guidelines related to prosecuting in the public interest:

  1. Prosecutions are conducted in the name of the public;
  2. Offences are prosecuted for the good of the public;
  3. Proceedings are conducted according to values expected by the public; and
  4. Action is taken in the eye of the public.

Prosecutions are conducted in the name of the public

While it is widely known that every prosecution initiated by the AGC is named Public Prosecutor v [name of accused], AG Wong emphasised that this is not merely a naming convention. In other words, the fact that cases are brought by the Public Prosecutor means that decisions to prosecute are made independently.

As the Attorney-General, AG Wong wears 2 hats. Firstly, art 35(7) of the Constitution of the Republic of Singapore (“Constitution”) provides that AG Wong is to act as the Government’s chief legal advisor. Secondly, art 35(8) of the Constitution vests in AG Wong the power to institute, conduct or discontinue any proceedings for any offence. These two functions are separate and distinct. In particular, AG Wong stressed that prosecutorial decisions are made by himself and his Deputies.

The second point is that criminal prosecutions are initiated by the AGC not to further the private interests of the victim, but to further the larger public interest. While AGC does take into consideration the views of the victim, AG Wong emphasised that they are not determinative.

Offences are prosecuted for the good of the public

AG Wong mentioned that various factors are considered when it comes to determining what is for the good of the public, and it is impossible to give all-encompassing factors. However, there are largely 4 objectives they often aim to achieve via prosecution.

Maintain a safe and secure environment in Singapore

The AGC maintains a non-negotiable policy to prosecute crimes that affect the public safety in Singapore. Instances of such crimes include corruption, serious financial crime, drugs and violent crimes. AG Wong highlighted that Singapore today is deemed as one of the safest cities in the world, and is heartened to note that in 2016, Singapore reached 30-year lows in violent crimes, housebreaking, theft and robbery.

In particular, safeguarding social harmony is also part of maintaining the safety and security of Singapore. Situations around the world shows that damaging social relations can result in serious consequences.

Promote a culture where rights are respected

By promoting a culture where rights are respected, it provides for a conducive environment for business. Business may be competitive, even cutthroat, but they must adhere to the rules. There is a zero-tolerance policy against money laundering and corruption. Should corruption be tolerated in Singapore, our reputation as a safe and honest place to do business would be irreparably damaged.

Promote strong public institutions

The promotion of strong public institutions is essential for the peace, harmony and prosperity of Singapore. AG Wong went on to explain the seriousness of the crime of contempt of court. Though it may not fit with layperson’s view of a crime, it is in fact viewed as the one of the most serious offences a person can commit. There is a need for strong public confidence in judiciary to be maintained (both locally and abroad).

Serve larger objectives that may not be immediately apparent to most (e.g. promoting environmental sustainability)

AG Wong introduced the fourth objective with an example Singaporeans are all too familiar with - the haze. The haze not only has an impact on climate change, but also on human health. With recent changes in the law, Singapore is now in a position to prosecute companies within Singapore who contribute to pollution overseas. AG Wong also noted the rise in fake news and offences against some of the most vulnerable members of society, such as domestic workers and the elderly. On the topic of offences against elderly persons, AG Wong explained that as the elderly have worked hard their entire lives, they often have substantial savings, making them potential bribe targets for fraudsters. There is hence a need to provide protection of law by severely prosecuting offenders, achieving the ultimate objective of deterrence.

Proceedings are conducted according to values expected by the public

AG Wong explained that prosecution is also done according to values of the public. Prosecution does not aim to win at all costs, but rather, to obtain a just outcome. Neither is it a policy of the AGC to always automatically prefer the most serious charge. AG Wong emphasised that every defendant has the right to claim trial, and the AGC will not push for overly excessive and punitive sentences just because the defendant has decided to claim trial. However, it is important to note that the way the defendant pleads his case may affect the sentencing outcome.

Where a serious offence has been committed, but the evidence may not be as compelling, the AGC will still likewise pursue a conviction.

Action is taken in the eye of the public

AG Wong stressed that prosecutions were open to valid public scrutiny, and rightly so. Nonetheless, he maintained that scrutiny would not detract from the Prosecutorial drive toward justice, and hopes that the public may scrutinise fairly. Whilst there is no hesitation to respond to public interest for a tougher sentence, they will similarly not compromise on procedural fairness for the offender. He noted that this must be so, even if ultimately it undermines the Prosecution’s case. An “even-handed approach” is hence taken by the Prosecution when prosecuting offenders. He noted, “The public, and the public interest, expects no less from us”.

Sentencing in the Public Interest

On sentencing, AG Wong highlighted that the prosecutors also submit on sentencing with the public interest in mind, on top of prosecuting in the public interest. While this may seem odd at first blush, it is indeed not surprising that all parties (i.e. prosecutors and defence counsel) have a duty to help the Court arrive at a just sentence. In this regard, AG Wong clarified that it is not AGC’s practice to always ask for the highest sentence possible. This would depend on the individual case at hand and takes into account larger societal objectives.

A point which is noteworthy is AG Wong’s firm stance on 2 particular types of offences, namely, sexual offences against minors and offences against foreign domestic workers. As regards such offences, AG Wong made it clear that the prosecution would press for deterrent sentences in the interest of the public.

AG Wong also cited another recent example where the AGC disagreed with the original benchmarks laid down in the case of PP v Chow Chien Yow Joseph Brian [2016] 2 SLR 335, which involved national service defaulters. As the AGC was of the view that the existing benchmarks did not fully reflect the seriousness of the offence, the prosecutors made submissions to the court to increase the benchmark sentences in order to highlight the importance of the national service obligation. These submissions were subsequently accepted by the High Court in PP v Sakthikanesh s/o Chidambaram [2017] SGHC 178.

In contrast, pursuing even-handed justice means that a just sentence is one that is also fair to the accused. In that regard, the prosecutors will consider mitigating factors carefully and may even take active sentencing positions that favour the offender. For instance, in PP v Lim Choon Teck [2015] 5 SLR 1395, the prosecution appealed against the 8-week sentence imposed on a cyclist who had injured a 69-year-old woman on the ground that it was manifestly excessive. This was certainly unconventional as it was “the first time the Prosecution had appealed against a sentence on this ground” (at [1]). Eventually, the sentence was reduced to 2 weeks by the High Court.

In sum, these examples clearly reflect AGC’s commitment towards sentencing in the public interest, and it is indeed encouraging to know that AGC does not view accused persons as their “adversaries” although the criminal justice system is adversarial in nature.

Conclusion

In sum, AG Wong highlighted that prosecutorial discretion is a multifaceted and complicated task which requires a balance of various competing factors. Reaffirming the AGC’s commitment towards prosecuting in the public interest and for the good of Singapore, AG Wong noted that no single person in the AGC unilaterally “determines” the public interest in the AGC. Ultimately, a fully considered decision can only be reached through the process of open engagement.

For a more personal take on the lecture, here is an article by Justified: http://justified.nuslawclub.com/slr-annual-lecture-2017-prosecution-in-the-public-interest/

The SLR Annual Lecture 2017 has been featured in The Straits Times: http://www.straitstimes.com/singapore/prosecution-to-keep-apace-with-evolving-public-interest-attorney-general-lucien-wong

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Analysing the Need for Age Distinctions in Law

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The PDF version of this entry can be found here.

Analysing the Need for Age Distinctions in Law

Liew Jin Xuan

I. INTRODUCTION

In law, there are four main considerations taken into account by the Court when sentencing: retribution (or, more aptly, the punishment needing to fit the crime), deterrence, protection of the public, and rehabilitation. The weight accorded to each of these considerations varies with the age of the offender. Particularly for young offenders, the dominant consideration has been said to be rehabilitation.1 As explained by Yong CJ, the basis for this is that youths have supposedly better chances of reform in their formative years.2 A further consideration would be the aspect of culpability, which would fall under the retributive factor – impressionable teens may be “slightly less responsible than older offenders”.3

As a result, where youth and children are concerned, the law often adopts a more rehabilitative approach to sentencing. The law would look upon their mistakes more sympathetically,4 and this view that age is a measure of maturity is one adopted worldwide. While understandable, there are inherent flaws in such an approach. Firstly, it fails to consider instances where a person is a juvenile at the time of crime, but is past the age limit for juveniles at the time of trial. Secondly, the inconsistency of standards in law pertaining to what age limit to impose on each stage of maturity undermines the rationale behind prioritising rehabilitation for ‘minors’. Lastly, such a distinction acts as an overly blunt tool of justice and is, in fact, unnecessary.

II. DIFFERENTIATING BETWEEN THE TIME OF OFFENCE AND TIME OF TRIAL

In Singapore, a person can be considered a juvenile at the time of crime and yet still be held to the standard of an adult. As set out in the Children and Young Persons Act,5 age is calculated on the date when the Juvenile Court commences the hearing of the charge, not on the date when the offence was committed.6 The clearest manifestation of this would be that a 15-year-old can be charged in an adult Court instead of the Juvenile Courts if the case is not heard until he or she reaches 16 years of age.7 In effect, the rehabilitative consideration would be accorded lesser weight by the Courts if at the time of the trial, the person has grown past the age limit defining a ‘juvenile’.

If the law truly views the follies of youth more tolerantly as the young “don’t know any better”,8 it is incomprehensible why sentencing should focus on the time of the trial, merely because a person has ex post facto become older. It is precisely because the offence was committed when the juvenile was young and ignorant that the sentence should be lighter. This problem is exacerbated because of the possible time lapse between initiation of criminal charges and actual prosecution in Court.

III. ADULTHOOD VS. CHILDHOOD – INCONSISTENCY OF MEASUREMENT

Currently, inconsistencies between different Singapore statutes result in the odd outcome where a person can be both an adult and a child in the eyes of law.

For instance, the Children and Young Persons Act9 states that where a person is 16 or above at the time of trial, he or she is no longer under the jurisdiction of the Youth Court, and will be charged in the Subordinate Court like all adults. However, they are not yet considered adults according to the Civil Law Act,10 which states that a person must be at least 18 years of age before they can enter into a contract. As aptly explained in From Children to Citizens, “a 17-year-old may be treated as an adult on charges of committing a violent crime … but the same person could well be treated as a child for purposes of employment and other contractual relations, including marriage”.11

If the basis for prioritising rehabilitation in youth offender cases is because they are in their ‘formative’ years and vulnerable, this very basis is undermined by the varying standards held in general in law of how old, say, an ‘impressionistic teenager’ should be. The multiple standards suggest that even the law itself is confused as to the precise distinctions it should make between the age of a person who is still vulnerable and one who is already independent. One potential explanation for the plural standards in law could be that different concepts require different degrees of maturity to grasp. For instance, it is easier for the younger minds to understand that killing is wrong, but perhaps not why a marriage contract is more complicated than two people agreeing to live together. Yet if this is the true rationale, it would appear that the law is acting on the presumption of what a child can and cannot understand.

IV. CONCLUSION: AGE LIMIT AN OVERLY BLUNT TOOL

Ultimately, it would appear that the distinction between ages is a somewhat arbitrary distinction. Is a person who becomes 16 truly more mature than he was just one day prior?

Children under 7 years of age are immune from criminal liability.12 At 15, one gets charged in the juvenile court; turn 16, however, and the hearing commences in the subordinate court.

It is understandable that usage of age as a defining line roughly identifies those people who are deserving of a second chance. According to the Ministry of Social and Family Development, the recidivism rate of juveniles under rehabilitation schemes have been quite low – generally under 20% across the board – indicating its great success.13 Yet this gives the impression that law tends to judge the ‘worthiness’ of a person to whom a second chance would be provided based on his or her age and the correlated ‘probability’ of success.

Also, the current state of law provides discretionary powers both to deny rehabilitative approaches for young offenders14 and to grant probation to adult offenders. The use of age distinctions is hence not only unnecessary, but even encumbers judicial fairness. In PP v Muhammad Nuzaihan bin Kamal Luddin,15 the District Court merely sentenced the convict to 30 months’ probation. This was aptly reversed by Yong CJ upon appeal to reflect the seriousness of cyber-crime and Parliamentary intention to deter such behind the Computer Misuse Act.16 The method by which the Court reached its decision is one that should be widely adopted: rather than deciding solely based on age, each individual should be allowed rehabilitative approaches based on the overall merits of their case. Arbitrary age distinctions are unnecessary as sentences can be prudently determined without it. The age of the accused should only constitute one of several factors, and should vary in importance depending on the precise factual matrix. Indeed, it is noted that children between ages 7 and 12 are protected from criminal liability under s 83 of the Penal Code17 as long as they have not “attained sufficient maturity of understanding to judge of the nature and consequence of his conduct on that occasion”. In fact, it is proposed here that children should be protected only if they have not attained the requisite maturity as judged on a case-by-case basis.

The law is not a catch-all safety net: there are bound to be people who will fall through the cracks. The situation today continues to be flawed, but hopefully, things may just change for the better. The age distinction may arguably more practical than having to judge each case on a case-by-case basis, and it has been effective thus far. However, it is proposed that rather than having it written in the statute itself, age distinctions can simply serve as a useful guide in deciding the culpability of the offender, rather than usually acting as a free ticket to forgiveness for the ‘young’, and a bias against the ‘adult’ – who may just be a year apart.

[1] Public Prosecutor v Mok Yuen Ping Maurice [1998] 3 SLR(R) 439 at [21].

[2] Ibid.

[3] Ibid.

[4] Parliamentary Debates Singapore: Official Report, vol 87 at cols 2105-2106 (10 January 2011) (Minister for Community Development, Youth and Sports Dr Vivian Balakrishnan).

[5] Cap 38, 2001 Rev Ed Sing, s 33(6).

[6] (2010) 8:3 BJCJ 63 at 64.

[7] Ibid.

[8] Supra note 1.

[9] Supra note 5.

[10] Cap 43, 1999 Rev Ed Sing, s 35.

[11] Francis X. Hartmann, From Children to Citizens Volume II: The Role of the Juvenile Court, 1st ed (New York: Springer-Verlag, 1987) at 4.

[12] Penal Code (Cap 224, 2008 Rev Ed Sing), s 82.

[13] Ministry of Social and Family Development, “Juvenile Delinquents: Recidivism Rate” (14 April 2016), online: <https://www.msf.gov.sg/research-and-data/Research-and-Statistics/Pages/Juvenile-Delinquents-Recidivism-Rate.aspx>.

[14] PP v Muhammad Nuzaihan bin Kamal Luddin [1999] 3 SLR(R) 653 at [16].

[15] Supra note 14.

[16] Cap 50A, 1993 Ed.

[17] Cap 224, 2008 Rev Ed Sing.