PROSECUTORIAL DISCRETION AND THE LEGAL LIMITS IN SINGAPORE

• Author: Gary CHAN Kok Yew LLB (Hons), MA (National University of Singapore), LLM, BA (University of London); Associate Professor, School of Law, Singapore Management University.
• Date: 01 December 2013
• Published date: 01 December 2013

Article 35(8) of the Constitution of the Republic of Singapore states that the Attorney-General, as the Public Prosecutor, “shall have the power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence”. This prosecutorial discretion, though extremely wide, is not an unfettered one and must not be exercised in bad faith or in breach of constitutional rights. With respect to the equality provision in the Constitution, the Prosecution has to give unbiased consideration to all potential accused persons and avoid any irrelevant considerations. The article considers whether the presumption of the constitutionality of prosecutorial decisions and the onerous burden on the accused person to displace the presumption should be re-examined. Further, the Prosecutor should consider disclosing the reasons underlying the prosecutorial decisions as far as possible, subject to minimising potential risks and publishing guidelines on prosecutorial decision-making.

I. Introduction

1 In recent years, the issue of prosecutorial discretion has generated much publicity, debate and, at times, disquiet in Singapore. In 2008, a donor and recipient of a kidney were both charged under the Human Organ Transplant Act1 for entering into an illegal sale and purchase of a kidney as well as for making a false statement in a statutory declaration under the Oaths and Declarations Act2 (“ODA”). A letter to The Straits Times criticised the Prosecution for its decision to charge the recipient, who was in ill health, under the ODA, which had resulted in his jail term.3 The Attorney-General's Chambers defended its position vigorously, and explained that it had “weighed all the relevant factors in the scales of justice and exercised considerable compassion in

urging the court to temper justice with mercy, accepting the judgment of the court to impose the very shortest sentence possible”.4

2 More recently, a plastic surgeon was charged under the Road Traffic Act5 with abetting his employee to provide false information to the police about traffic offences involving speeding and was fined $1,000. The public queried whether the surgeon was let off with a light charge just because he was wealthy instead of a heavier charge under s 204A of the Penal Code6 for intentionally perverting the course of justice. The Attorney-General's Chambers explained that the offences had taken place before that provision of the Penal Code came into force. The Minister for Law stated that the court sentence was consistent with the norm, and dismissed allegations that there was any differential charging between the “haves” and “have-nots”, in order to quell the public perceptions of unfairness and inconsistency in respect of the prosecutorial decision.7

3 Another source of contention is related to the public debate as to whether Singapore should retain or repeal s 377A of the Penal Code,8 which criminalises “acts of gross decency”, be it in public or in private, between males. The Government, upon stating that Singapore remains a “conservative society” and that Singaporeans do not approve of homosexuals “actively promoting their lifestyles to others, or setting the tone for mainstream society”, decided to retain s 377A.9 However, it adopted the stance that it will not proactively enforce the statutory provision against adult males engaging in consensual sex with each other in private.10

4 In the subsequent case of Tan Eng Hong v Attorney-General,11 the applicant had been originally charged for an offence under s 377A of

the Penal Code,12 but it was amended to one under s 294(a) of the Penal Code,13 after the applicant had issued a constitutional challenge against s 377A. The Attorney-General applied for, and successfully obtained from the High Court, an order for the s 377A application to be struck out. However, this decision has been reversed by the Court of Appeal in Tan Eng Hong v Attorney-General14 (“Tan Eng Hong”), on the basis that the applicant had locus standi because there was an arguable violation of his constitutional rights. This means that the accused person would still be able to advance substantive arguments before the Singapore courts in the near future in order to challenge the constitutionality of s 377A on the merits of the case. Moreover, on the ministerial statements that s 377A will not be “proactively” enforced, the court indicated that they do not fetter the discretion of the Attorney-General.15

5 The Attorney-General is the Public Prosecutor empowered to prosecute accused persons, under the Constitution of the Republic of Singapore (“the Constitution”).16 He is not elected but appointed by the President, should the President acting in his discretion concur with the advice of the Prime Minister.17 In so far as prosecutorial powers are concerned, Art 35(8) of the Constitution confers on the Attorney- General the “power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence”. He has control and direction with respect to all criminal prosecutions under the written law.18

6 In practice, the range of prosecutorial decisions that may be undertaken is potentially very wide. In addition to decisions on whether to commence prosecutions against a suspect, the Prosecution has the discretion to decide on the possible charges against the accused person, whether to discontinue pending criminal proceedings, and whether to appeal against the acquittal of the accused or against the sentences passed by the courts. Where a prosecution is brought by a private person against the accused, the Public Prosecutor will have to decide whether to take over the conduct of prosecution, allow the private prosecution to proceed or to intervene in, or discontinue, the proceedings.19

7 Depending on the type and severity of the offences, the penal statutes may stipulate for mandatory caning, prison sentences or death penalty. Mandatory death sentences are currently prescribed for murder and drug-trafficking offences, though the Government is considering legislative reforms to allow for judicial discretion on sentencing for specific instances of these offences.20 If the Prosecution decides to prosecute, his choice between two charges (assuming one with mandatory penalties and the other without) would have serious consequences for the accused person.21 Plea negotiations between the Prosecutor and the suspect or accused person22 may have an important bearing on the choice of charges to bring. During, or as a result of, such negotiations, an accused person may decide to plead guilty to a lesser charge in exchange for the Prosecutor withdrawing a more serious charge, or alternatively, plead guilty to certain charges in exchange for the Prosecution dropping other charges.

8 Prosecutions for offences involving the mandatory death penalty23 naturally attract high-level publicity. In 2012, the Court of Appeal was confronted with two significant cases on the scope of prosecutorial discretion under the Constitution, involving the differential charging of co-offenders participating in the same criminal enterprise. In Ramalingam Ravinthran v Attorney-General24 (“Ramalingam”), the co-offenders were in possession of cannabis and cannabis mixture. The applicant (Ramalingam) was charged under the Misuse of Drugs Act25 for trafficking with the actual amount of cannabis and cannabis mixture, which attracted the mandatory death penalty. The other co-offender was, however, charged with trafficking a lower amount of

the drugs, which did not attract the mandatory death penalty. Upon conviction by the High Court, Ramalingam filed a criminal motion for the capital charges against him to be amended to non-capital charges and for the sentence imposed by the High Court to be set aside, arguing that the Attorney-General had exercised his discretion contrary to the equal protection clause, namely, Art 12 of the Constitution.26

9 Before the heat and dust from Ramalingam had settled, the case of Quek Hock Lye v Public Prosecutor27 (“Quek Hock Lye”) followed quickly on its heels. Quek had participated with a co-offender to traffic diamorphine contrary to the Misuse of Drugs Act. Quek was convicted and sentenced to death for the offence of possession of drugs in furtherance of criminal conspiracy with the co-offender to traffic the drugs. The co-offender was charged for the same offence but involving a lower quantity of drugs, and was therefore spared the death penalty. In a similar vein, Quek's counsel argued that the differential charges against Quek and the co-offender constituted a breach of Art 12 of the Constitution.

10 Both Ramalingam and Quek failed in their quest to set aside their convictions. First, the court confirmed that the two legal limits to prosecutorial discretion are breach of constitutional rights and bad faith. In essence, it decided that there was a presumption of constitutionality of prosecutorial discretion premised on the doctrine of separation of powers, and insufficient prima facie evidence of a breach of Art 12 to rebut that presumption. Further, the Attorney-General is not obliged to supply reasons for his prosecutorial decisions. Both cases have nevertheless raised legitimate questions about the scope of the Attorney-General's prosecutorial powers. How wide is the discretion to prosecute? Should the Judiciary intervene; if so, in what circumstances? How should the parameters be drawn? What are the underlying rationales? Should the Prosecutor not be required to provide reasons for his decisions?

11 This article is concerned as much about criminal justice as it is about the legal limits of powers granted to important organs of state, in particular, the Prosecution. The crux of the issue is the life and liberty of the individual, lying in the intersection of criminal justice and constitutional law, and in this regard, the Judiciary clearly plays a vital role. Apart from local precedents...