Criminal Procedure, Evidence and Sentencing

• Date: 01 December 2012
• Author: LEE Jwee Nguan LLB (Hons) (National University of Singapore), LLM (NYU), LLM (National University of Singapore); Advocate and Solicitor (Singapore); Director, Legal & Enforcement, Competition Commission of Singapore. MOHAMED FAIZAL Mohamed Abdul Kadir LLB (Hons) (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-Law (New York); Deputy Senior State Counsel/Deputy Public Prosecutor, Attorney-General's Chambers.
• Citation: (2012) 13 SAL Ann Rev 266
• Published date: 01 December 2012

Prosecutorial discretion

14.1 In 2011, the High Court and the Court of Appeal took the opportunity to clarify the court's role in reviewing the exercise of prosecutorial discretion by the Attorney-General qua Public Prosecutor – the developments that year were discussed at considerable length in (2011) 12 SAL Ann Rev 243 at 244–248, paras 13.4–13.16. Central to such developments was the Court of Appeal decision in Ramalingam Ravinthran v Attorney-General[2012] 2 SLR 49 (‘Ramalingam Ravinthran v AG’), where it articulated the principle that, in cases involving challenges to the exercise of prosecutorial discretion, the Attorney-General, qua Public Prosecutor, would be presumed to have exercised his prosecutorial powers in accordance with the law and that the burden would be on the aggrieved individual to show a prima facie breach of a fundamental liberty before the evidential burden would be shifted to the Attorney-General to justify his prosecutorial decision. In this connection, the Court of Appeal also made plain that the burden would only fall on the Prosecution to justify its prosecutorial decision if, and only if, a prima facie breach can be shown by the aggrieved individual (who purports to challenge the exercise of such discretion).

14.2 The matter of the exercise of prosecutorial discretion continued to serve as a recurring theme in the realm of criminal procedure in 2012, with the common thread running through each of these cases being the Court of Appeal's further clarifications of the powers of judicial supervision over the exercise of prosecutorial discretion as set out in Ramalingam Ravinthran v AG. In the first of these cases, Chan Heng Kong v Public Prosecutor[2012] SGCA 18 (‘Chan Heng Kong v PP’), for example, the Court of Appeal clarified the precise boundaries of prosecutorial discretion. The facts of Chan Heng Kong v PP, to the extent they are relevant, are as follows. The accused had apparently instructed his brother to collect thirty sachets of white granular substance (which was found to contain not less than 17.70g of diamorphine) from a third party. The accused was prosecuted, inter alia, for the commission of the abetment of his brother's trafficking of an amount of substances containing not less than 17.70g of diamorphine, whilst his brother was charged with, and pleaded guilty to, a reduced non-capital offence of trafficking ‘not less than 14.99g of diamorphine’ involving the trafficking of the same thirty sachets (at [2]). The accused was convicted of the charge preferred against him. On appeal, the apparent bifurcation in treatment vis-à-vis the two individuals in question was contended by the accused to be unconstitutional for being in breach of Art 12 of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) (‘Constitution’).

14.3 Relying on the framework set out in Ramalingam Ravinthran v AG, the court noted that the Attorney-General, qua Public Prosecutor, would be legally empowered to exercise his prosecutorial discretion to charge two or more offenders engaged in the same criminal enterprise with different offences punishable with different punishments according to, amongst others, their culpability in the carrying out of that criminal enterprise. The court also usefully noted that the Attorney-General would not be legally required to charge all offenders involved in a criminal enterprise with the same offence as long as such charging decision was not biased or otherwise informed by irrelevant factors. In the circumstances, the Court of Appeal dismissed the appeal as the accused had failed to substantiate the case that the charging decisions arrived at were either dissonant to the culpability of the individuals in question, or were otherwise biased or had taken into account irrelevant or arbitrary considerations.

14.4 The Court of Appeal decision of Yong Vui Kong v Public Prosecutor[2012] 2 SLR 872 (‘Yong Vui Kong v PP’) served as a further development that explicated the contours of prosecutorial discretion. In that case, the accused had, in the course of investigations, identified one Chia Choon Leng (‘Chia’) as the individual who had asked him to deliver certain ‘gifts’ into Singapore (these ‘gifts’ turned out to contain various quantums of controlled drugs, including packages containing 47.27g of diamorphine). The accused had, however, also stated during the course of such investigations that he did not wish to identify or testify against Chia in court because he was worried about his own safety and that of his family. The accused was charged, inter alia, with an offence of trafficking the packages containing 47.27g of diamorphine into Singapore (‘the charge’). Chia was charged with, inter alia, a corresponding offence of instigating the accused to traffic the stated quantum of diamorphine into Singapore, though the Prosecution eventually applied for, and obtained, a discharge not amounting to an acquittal against Chia ostensibly because of the ‘difficulty of the evidence’ (ie, the Prosecution had taken the view that it had insufficient evidence with which to secure a conviction) and because Chia had been detained under the Criminal Law (Temporary Provisions) Act (Cap 67, 2000 Rev Ed) (‘CLTPA’). The accused was eventually tried and convicted of the charge. After a considerable litigious journey involving the lodging of various applications in the High Court and the Court of Appeal, the accused's appeal against his conviction (and his subsequent judicial review application: see Yong Vui Kong v Attorney-General[2011] 2 SLR 1189) was dismissed.

14.5 Thereafter, placing reliance on Ramalingam Ravinthran v AG, the accused filed a criminal motion contending, inter alia, that there had been ‘selective prosecution’ between himself and Chia that amounted to a violation of his rights under Art 12(1) of the Constitution. In the premises, the accused sought one of two alternative orders, ie, a quashing of his conviction and for the matter to be remitted back to the Attorney-General to consider whether or not to proceed against both him and Chia for the same offence, or for the Court of Appeal to ‘amend’ the capital charge with a view to ensuring that the sentence imposed on him be replaced with a suitable non-capital sentence such that there would be no difference in treatment inter partes.

14.6 The Court of Appeal opined that there were two issues that necessitated resolution in the matter before it. The first was the procedural matter of whether the criminal motion should be entertained at all (whatever its substantive merits) in light of the fact that the accused could have raised the allegation of ‘selective prosecution’ at an earlier stage of the proceedings (‘the procedural issue’). On the assumption this question was answered in the positive, the second question that arose related to the merits of the substantive complaint that the Attorney-General's decision to prosecute the accused (given the divergence in treatment with Chia) amounted to a breach of the accused's rights under Art 12 of the Constitution (‘the substantive issue’).

14.7 Turning first to the procedural issue, the Court of Appeal concluded that it ought to hear the motion as the case before it had some distinguishing features from that of Ramalingam Ravinthran v AG and the various other strands of jurisprudence where the question of a disparity of treatment between co-offenders had arisen. In particular, it noted that unlike the other cases that had been decided by the apex court hitherto, on a prima facie assessment of the case before it, it would appear that Chia (being the apparent kingpin of the drug operations) had been arguably more culpable than the accused (who appeared to be nothing more than a mule). To that extent, the Prosecution in this case would have, somewhat uniquely, discontinued the capital charges against the seemingly more culpable offender. The court also made clear that the belated timing of the motion was, to a large extent, happenstance: the possible grounds for the Art 12 challenge only became plain as a result of the Court of Appeal's decision of Ramalingam Ravinthran v AG. Given that the motion in this case had been filed without undue delay after Ramalingam Ravinthran v AG had been decided, the court opined that it would be appropriate to hear the substantive arguments that the accused intended to canvass in the motion.

14.8 Having adjudicated the matter of the procedural issue in favour of the accused, the court re-orientated its focus to the substantive issue, ie, whether the Attorney-General's exercise of prosecutorial discretion in the case before it amounted to a breach of Art 12(1) of the Constitution. To commence analysis, the Court of Appeal noted that the accused had failed to produce any evidence that would show a prima facie case of breach of the constitutional provision in question. In particular, the court made clear that in light of the fact that it would presume the legality or regularity of the Attorney-General's exercise of his prosecutorial discretion, it must proceed on the premise that the Attorney-General took into account all the relevant considerations in arriving at the decision that there was insufficient evidence upon which to secure a conviction of Chia of the charges preferred against him. In this connection, the court also made clear that the accused's refusal to testify against Chia, notwithstanding the fact that he was a compellable witness, was clearly a relevant consideration in the Attorney-General's decision as to whether to prosecute Chia. The court also gave short shrift to the accused's contention that the Parliamentary Debates (Singapore Parliamentary Debates, Official Report (20 November 1975) vol 34 at col 1382 (Chua Sian Chin, Minister for Home Affairs and Education) suggest that the mandatory death penalty had not been intended to be invoked against ‘petty morphine and heroin pedlars’ who were mere...