The Elephant in the Room – The Question of Prosecutorial Discretion

 

The headlines in recent days have been dominated by the ‘Monica Baey saga’ – the focus in particular on the inadequacy of actions in handling cases of sexual misconduct in an educational establishment such as NUS. One of the more prevalent but seemingly mysterious issues raised was the failure of the Attorney-General to charge the perpetrator in Court – the Singapore Police Force (“SPF”) have since come out in an attempt to clarify this and explain that comparisons to a case involving a 23-year-old man from Republic Polytechnic jailed for 10 weeks for filming a woman showering were misplaced.

What many seem to be forgetting is the elephant in the room – the whole question of prosecutorial discretion under Art 35(8) of the Constitution and the seeming mystery behind it. In Singapore, the Public Prosecutor has a wide discretion. He does not publish any prosecutorial guidelines and the public is left to ‘trust’ that his decisions are made with full propriety. That is to say, without abusing his power and with constitutional legitimacy.

While the Attorney General’s Chambers might be rightly assumed to have exercised its discretion in a proper manner in this case, such cases of disparities in the eyes of the public can and should be addressed by providing greater prosecutorial transparency – in all cases. In my opinion, greater transparency from prosecutorial authorities is in the public interest, contrary to the suggestions of the AGC.

The Constitution, actual bias and transparency

Art 12(1) of the Constitution prescribes that all accused persons be treated with equality before the law. This means that like cases must be treated alike, without any actual bias. In 2011, I filed a criminal motion against the Public Prosecutor challenging the exercise of prosecutorial discretion to charge my client Ramalingam Ravinthran (“Ramalingam’s case”) with a capital drug offence, while his co-accused was charged with a non-capital offence. They had been arrested after being in the same car with a large quantity of drugs. My client was sentenced to death, while his co-accused was sentenced to 20 years in jail with 24 strokes of the cane. The motion was dismissed, but the Court of Appeal clarified that the prosecution’s discretion to prosecute can be challenged on grounds of abuse of power or unconstitutionality.

By way of a separate criminal motion, I used the principles elucidated in Ramalingam’s case and commenced another challenge against the Public Prosecutor’s exercise of prosecutorial discretion to charge my client Yong Vui Kong- a drug mule, with a capital drug offence, while his boss and supplier was let off with a discharge not amounting to acquittal on three separate capital charges. This too was dismissed by the Court of Appeal.

In both cases, proving actual bias on the part of the Public Prosecutor was an insurmountable task, given the complete lack of any prosecutorial guidelines or reasons in their exercise of discretion. It is meaningless to say that the prosecutorial decisions are still subject to scrutiny for actual bias and unconstitutionality, when the very information which would prove such breaches is kept out of sight.

Contrary to the AGC’s suggestions, publishing such guidelines does not lead to ‘satellite litigation’. It is precisely the lack of such guidelines that leads to such cases having to be filed, as Defence lawyers and the public are left bewildered at seeming disparities in prosecutorial decisions.

Art 9(1) of the Constitution prescribes that no person shall be deprived of his life or personal liberty save in accordance with the law. Implicit in this is that fundamental rules of natural justice must be adhered to. This requires that there be no bias or interest on the part of decision makers. The police have said that it is ‘unfortunate that such untruths have been put out’ – in relation to the allegations of possible bias on the part of prosecutorial authorities in the NUS voyeur case. I agree – but I fear that such actions are a direct consequence of the lack of transparency on the part of prosecutorial authorities. Had there been publicly available prosecutorial guidelines, like for our counterparts in Hong Kong or the United Kingdom, with early clarification on grounds of prosecutorial decisions, such wild speculation could be averted. It is therefore in the interest of the Government and good administration that codes of disclosure and prosecutorial guidelines be set out.

Looking abroad

The Crown Prosecution Service in the UK provides publicly available guidance on a multitude of criminal offences and procedural issues. So committed to the rule of law they are, that decisions that are made without full compliance with these publicly available codes are made subject to judicial review.  The AGC refers to such challenges as ‘satellite litigation’- which is additional litigation outside of the major piece of litigation in Court. These include challenges challenging the propriety of the prosecution, as I had done in Ramalingam and Vui Kong’s case. In countries like the UK, the outcome of such litigation includes requiring the prosecution to give more specific guidelines on prosecutorial guidelines or to require the prosecution to revisit their decisions. The AGC insinuates that such outcomes are negative. I completely disagree. A strong commitment to the rule of law and ensuring the propriety of its administrative decisions is something Singapore can and should aspire to.

Closer to home, Hong Kong’s Department of Justice also makes public a Prosecution Code- which explains how Prosecutors make their decisions to prosecute. While I agree that second chances and warnings ought to be considered by authorities where appropriate, a lack of guidelines on which such decisions are made leads to wild speculation and appearances of bias. That is not in the spirit of Arts 9 and 12 of the Constitution.

Conclusion

Transparency of prosecutorial discretion is certainly in the public interest and forms the backbone of justice in any society – the AGC’s concerns pertaining to the publication of guidelines are misconceived and outdated. Would the common man be able to understand why two seemingly ‘like’ cases are treated wholly differently, without more transparency on the part of prosecutorial authorities? Justice is not a cloistered virtue. Public scrutiny is not as disastrous as the AGC makes it out to be and would be wholly beneficial to help the public understand the decisions of prosecutorial authorities.

Special mention of thank you to Gabriel Tan of Durham University for assisting on the research.

 

M Ravi

 

 

 

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14 Responses to “The Elephant in the Room – The Question of Prosecutorial Discretion”

  • Bapak:

    官字两个口

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  • oxygen:

    THERE MUST BE A SEPARATE OFFICE OF PUBLIC PROSECUTION (OPP) from the Attorney-General Office (AG). The AG must NOT be the law writer/architect, law interpreter and the prosecution discretion and direction as the same party because politically-vested CONFLICT will most likely hijack statutory law writing to protect and advance its own political agenda, longevity and hegemony EVEN WHEN IT IS AGAINST PUBLIC INTERESTS. It is the worst fabrication of legal “coprohagia”.

    POFMA is one good example of such. The law architect pretends that truth and falsity is not malleable when in reality to infinity, the OPPOSITE of MONUMENTAL CONFLICTING EVIDENTIALITY is confronting. CPF is not our money yet profits from CPFIS were withdrawn decades ago as if this is legalized theft of property and the participating banks in complicit? HDB is tenant and owning at the same time for its purchasers? GRC protection for minority interests is ONLY VALID AT TIME OF ELECTION AND THEREAFTER VAPORIZE INTO FICTION?

    All windy happy contradictions which compromised public respect for the integrity of law applications. Would the OPP defend such untenable law construction and application invented by the AG as the law architect?

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  • Bullshit:

    Straits Times: Legislation essential in tackling spread of fake news to manipulate opinions, elections: PM Lee Hsien Loong

    PM LHL insults Singaporeans. It is the PAP that is manipulating opinion by its use of misleading half-truths through MSM.

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  • Corrupt Greedy Evil:

    Availability of guidelines and transparency means that the PAP will lose their unfettering rights to do as they wish and have to be accountable to public queries.
    This will reveal the general incompetence within the public administration, any corruptions and favouritism.
    This will also demolished the myth that obscene salaries need to be paid to PAP ministars.

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  • HarderTruths:

    Thank you Mr Ravi.

    On the surface the problem seems to be one of judicial latitude.

    The real problem is one of trust or more accurately – distrust.

    No one has any faith in the system. No one can see how the conclusion was arrived at by people no one trusts.

    More and more $G locals are becoming victims of policies meant to serve only a few and keep the population in practical serfdom – locals owned by the lords and masters and kept in check by draconian laws and rules that punish any transgression.

    It is only natural that this frustration, distrust and anger will one day spill over into something never expected by the ruling elite.

    It only takes one event – one – snowflake – to start an avalanche.

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  • LIONS:

    WELL,I GUESS THEY CANNOT TAR THE IMMACULATE IMAGE OF NUS?
    what is wrong is wrong,no need to hide lah.

    good,you take: bad,you shun away?
    what kind of persons are you?
    call yourselves SCHOLARS???

    where is your grace n refinement?

    you are worse than hooligans!

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  • oxygen:

    Ooops, typo error there, sorry

    oxygen: The AG must NOT be the law writer/architect, law interpreter and the prosecution discretion and direction as the same party because politically-vested CONFLICT will most likely hijack statutory law writing to protect and advance its own political agenda, longevity and hegemony EVEN WHEN IT IS AGAINST PUBLIC INTERESTS

    should be read as

    oxygen: The AG must NOT be the law writer/architect, law interpreter and the prosecution discretion and direction as the same party AT DIFFERENT TIMES because politically-vested INTERESTS will most likely hijack statutory law writing to protect and advance its own political agenda, longevity and hegemony EVEN WHEN IT IS AGAINST PUBLIC INTERESTS

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  • oxygen:

    EXEMPTION CLAUSE IN POFMA is an open invitation of those as yet unidentified exempt party/parties aexclusive right to publish 1% truth, 99% lies, fantasy and propaganda free of legal sanctions for its violation.

    That is exempted entity/entities are above the law.

    POFMA construct is illegal against public interests and contrary to the first and basic tenet of administrative law power application i.e. all parties are equal before the law.

    IT IS EXACTLY THE DEROGATORY ANIMAL FARM PLAY depiction of – All animals are equal, but some animals are more equal than others.

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  • MarBowling:

    Bullshit:
    April 25, 2019 at 5:30 pm (Quote)
    Straits Times: Legislation essential in tackling spread of fake news to manipulate opinions, elections: PM Lee Hsien Loong
    PM LHL insults Singaporeans. It is the PAP that is manipulating opinion by its use of misleading half-truths through MSM.

    Response: well said. Like to watch the fface of Mai Hum esp his SNEAKY body language when in the leaders retreat, Dr M spoke AGAINST legislation on Fake News!

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  • order from the relevant minist:

    wayang lar. got exemption for their own kind ? meaning the possibility of their own white idiots doing wayang in the social media / internet but no order from the relevant ministar to take down the post and yet may get exemption ??

    effectively, it means extending 151th standard (the propaganda machinery) to the social media / internet environment (arena).

    caveat : opinion lar.

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  • Ravi u r so damn right again2:

    cont

    Worse, the ministers n not the independent Judiciary r empowered to take the laws in their hands deciding what is fake n real without legal defense n punish in their own private Court. Even more ludicrous is that all with legal knowledge n power r amazingly silence. Can the citizen public be blamed for suspecting that the legislation adds on further protection of the opacity of govt action n now the truth in LHY/LWL allegation of bureaucratic compliance n the dynasty agenda but public perception is an internal family change of power over LKY nepotism, (most similar to China Tang Dynasty with Emperor Lee became Zhou Dynasty with Lee’s wife becoming Emperor Wu but not before Lee died. The siblings duels followed with the usual historical consequences.) began to gain better reception compounded by the Parliament family monolithic court session with self verdict of not guilty.
    Logically esp with ministers taking over the bench duty, citizens feels that only fake news r permissible if official or plp but not for the public. This calls to memories of Senior Citizens when LKY publicly threatened the citizens that anyone opposing him or his policy r his enemy will be dealt with relenlessly! The fake news legislation legalizes this n to doubly ensure that the decision should n be in the hands of the power n not by any judiciary, menu or person. Chief Justice, is this constitutional? Please advise n act if necessary. Ministers empowered so they r above Laws n can spread fake news whenever they wish. Is that what it is CJ?

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  • PM in ST front page:

    Citizens interprete
    So what I say it is essential. You say no. Ministers say fake, punish. U demonstrate my police arrest u, my AG, Lucien charges u. My Judges punish u.
    So dont kpkb. My little chan boy will tomorrow import millions of angmohs, india indians, PRC chinese, Viets, Ceylonist n any raffisns to kick u out of your jobs n your children out of the universities.

    This is what kopitiam conversationists discussing with saliva spewed all over each trying to be seen to be the best parrot n plp or GFW! what a change! the ground must be sweet! Avance GE before the ground become sour with the enemies telling the truth!

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  • oxygen:

    THE ELEPHANT OF LIES IN POFMA is its difficult definition of truth and falsity pretended differentiation. In practical terms, some is impossible of determination. For example,quantity of extractable oil reserves in oil fields after mining extraction deSHEpletion because reservoir conditions changes with production. And with that what value to attach in reserve accounting. If the smartest geologists together with the most honorable accountants cannot get it right of statutory disclosure compliance right, how can the Minister of no geology & accounting skills IS EVER GOING to get it right – FORGET THE MOST LEARNED GENIUS TO HEAVEN JUDGE WHO MIGHT HAVE HEARD FOR THE FIRST TIME IN HIS/HER LIFE THESE TWO WORDS – reserve and fair valuation EVER GOING TO GET THAT RIGHT TOO? The US SEC and UK Fraud office abandoned its prosecution of Anglo-Dutch Shell in what it says “in the public interest”.

    https://www.theguardian.com/business/2005/jun/30/oilandpetrol.news

    THERE IS NO FAKE NEWS THERE EMANATING FROM SHELL.

    The only fake news comes from the prosecution which has no reasonable basis of believing that Shell was misleading/deceptive (i.e. untruthful and deceptive) in its financial reporting.

    THE SEC AND UK FRAUD OFFICE WERE GHOST HUNTING IN IGNORANCE AND MISPLACED OTHERWISE MISGUIDED of false or faulty statutory law.

    That aborted case illuminate this fundamental fact – truth and falsity is NOT THE OPPOSITE DISCRETE END POINT of what might be erroneously belief to be factual reality on one end and on the other non-continuity plane/end is false utterance, publishing of something maliciously untrue or known to be deceptive/misleading leading to a misperception in the audience that is anything but factual statement/disclosure of reality.

    ON THE CONTRARY, TRUTH AND FALSITY EXIST IN THE SAME PLANE OF A SINGLE CONTINUUM – at some point it changes subtly, even undetectable to the author and/or mouth of the utterance at different evolving moment. What is “untrue” of 1 MDB yesterday of malicious allegation might prove to be meritorious of judicial investigation tomorrow i.e. the allegation likely to be meritorious of a proven judicial outcome beyond fake news rumour.

    In law definition of misleading/deceptive (false) to factual accounting (truth), that ranges from knowing false utterance to honest disclosure in entirety. Missleading/deceptive conduct range from dishonesty to honesty and it DOES NOT HAVE TO INCLUDE DISHONESTY. Common law interpretation even stretch that further to “non-trivial contribution to the cause of the process”. If that is applied, Trump is guilty of misleading conduct/obstruction of justice.

    Is he in jail now?

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  • oxygen:

    THE NON-TRIVIAL CONTRIBUTION TO THE CAUSE OF THE PROCESS common law definition is found at this weblink below at paragraph 28.

    Re Ricochet Pty Ltd; Ian Barron and Morwest Investments Pty Ltd As Trustee of the Morwest Trading Trust v Equity

    http://www8.austlii.edu.au/cgi-bin/viewdoc/au/cases/cth/FCA/1993/99.html

    : A finding that a misrepresentation might have induced a decision will not of itself establish as a matter of probability that it did. Consistently with that finding, it may be that, on the balance of probabilities, a party was induced to make a decision by a combination of factors including the misrepresentation. Assuming a non-trivial contribution to the causative process by the misrepresentation, then it may be actionable.

    The POFMA GHOST RESIDES IN THIS COMMON LAW DEFINITION which did not, till now, entrapped Donald Trump.

    Naughty Trump boy even tells all his public servants in his employed to REFUSE ALL SUBPOENAS FROM CONGRESSIONAL COMMITTEE HEARING of his presidential conduct. i.e. defiance.

    “The Republican president ordered officials not to obey legal requests from the Democratic-led House of Representatives, which is carrying out multiple investigations of his administration, including his tax returns, White House security clearances and the probe of Russian interference in U.S. politics.”

    https://www.reuters.com/article/us-usa-trump/defying-congress-trump-vows-supreme-court-fight-over-any-impeachment-idUSKCN1S01KA

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