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Re-examining Prosecutorial Discretion In The Context Of s 300(a) Murder and s 299 Culpable Homicide
Nicholas Khong
I. Introduction
Article
35(8) of the Constitution of the Republic of Singapore[1] confers on the
Attorney-General the “power,
exercisable at his discretion, to institute, conduct or discontinue any
proceedings for any offence”.
In other words, the Attorney-General has control over whether a suspect should
be charged, and which charge should be brought against a suspect. Such prosecutorial
discretion is required for a fair and effective criminal justice system.[2] The alternative, “automatic
prosecution” of all suspected criminal offences, is untenable as it would
likely harm the public interest and overwhelm our criminal justice system.
However,
the Singapore Court of Appeal [SGCA] recognised in Chng
Suan Tze v. Minister for
Home Affairs[3] that unfettered discretion
would be inconsistent with any conception of the rule of law, since all legal
powers should have legal limits.[4] To this end,
prosecutorial discretion should be re-examined in the context of murder under
Section 300(a) of the Penal Code[5] [s 300(a)] and
culpable homicide under the first limb of Section 299 of the Penal Code [s 299].
Specifically, prosecutorial discretion in this context should be premised on two
additional mechanisms: an obligation to explain its decisions, as well as published,
non-binding and specific guidelines.
II. Consequences of prosecutorial discretion in murder and culpable homicide
In
Public Prosecutor v P Mageswaran and another
appeal[6] [Mageswaran],
the SGCA observed that s 300(a) and the
first limb of s 299 have exactly the same elements, namely: (1) an intention to
kill the victim; and (2) an act which caused the victim’s death.[7] It should be noted
that an accused person could be charged under the first limb of s 299 if one or
more of the Exceptions to s 300(a) are applicable. However, the prosecution may
exercise their discretion to charge the accused person under s 299 even though
none of the Exceptions to s 300 apply. This came to the fore in Mageswaran, where the accused was charged with an
offence under the first limb of s 299, even though the accused did not have any
partial defences open to him.[8]
Further,
the SGCA has noted that the exercise of prosecutorial discretion has enhanced
importance in such a context.[9] While a charge under
the first limb of s 299 only attracts a term of imprisonment, a charge
under s 300(a) attracts the mandatory death penalty. Hence, where an accused
person’s act fulfils the essential elements of the above offences, whether he
faces life imprisonment or death depends almost entirely on prosecutorial
discretion.
III. An obligation to explain prosecutorial decisions in the context of murder AND CULPABLE HOMICIDE
Notably,
in Mageswaran, the SGCA inferred that the
prosecution had decided to charge the accused person under the first limb of s 299
because the mandatory death penalty was not warranted in that case, “having
weighed all the relevant circumstances in the exercise of prosecutorial
discretion”.[10] Following the case
of Ramalingam Ravinthran v Attorney-General[11][Ramalingam],
where the SGCA held that the prosecution is generally not required to give
reasons for prosecutorial decisions,[12] the court in Mageswaran was entitled to make such an
inference. However, the prosecution’s exact reasons for charging the accused
person under s 299 in Mageswaran remain
unknown , and it is argued
that the prosecution should have an obligation to give reasons for its
prosecutorial decisions in the present case where the life of an accused person
depends almost entirely on the exercise of prosecutorial discretion.
On
the surface, Mageswaran does not imply a need
for this obligation, since the accused person was
charged under s 299 rather than the relatively graver offence under s 300(a).
However, this need becomes pertinent when the prosecution exercises their
discretion in the converse situation. An accused person who is charged with s 300(a),
and to whom the Exceptions to s 300 do not apply, would naturally question why
the prosecution exercised their discretion differently in Mageswaran.
The Attorney-General’s Chambers
(AGC) has raised two main arguments against any general obligation to explain
prosecutorial decisions.[13] Unfortunately, these
arguments are neither convincing nor satisfactory in the specific context of s 299
and s 300(a).
A. Delayed prosecutions and undermined prosecutorial effectiveness?
Firstly,
the AGC argues that an obligation to explain its prosecutorial decisions in
every case would delay criminal proceedings and undermine prosecutorial
effectiveness, as it would likely result in frequent challenges to the courts
by dissatisfied parties.[14]
However,
this obligation need not extend to every case, and an exception for cases where
s 299 and s 300(a) are concerned can be made on the ground that prosecutorial
discretion has enhanced importance here.[15] This would be a more
principled approach as opposed to one that relies on public sentiments.[16] Such an approach
would also accord with the Chief Justice Sundaresh
Menon’s recent pronouncement in Han Fang Guan v Public Prosecutor[17], that “the
liberty of individuals should not be dependent on discretionary powers when
they may be dealt with in a principled way”.[18]
Further,
frequent challenges to the courts can be justified by the fact that, if there
was indeed a prosecutorial mistake, it is the accused person who suffers an
irreversible and unjustified loss of life or liberty.[19] This would be consistent with Singapore’s
gradual shift away from the crime control model of criminal justice by
introducing further due process safeguards.[20]
B. Attorney-General’s ability to exercise prosecutorial discretion undermined?
Secondly,
the AGC asserts that any obligation to explain its prosecutorial decisions “which
runs counter to the judicial deference shown by the courts to the
Attorney-General’s discretion would impair the performance of a core executive
function designated in the Constitution”.[21]
However,
it is unclear as to why such an obligation would necessarily impair the
Attorney-General’s ability to “institute, conduct or discontinue”[22] proceedings for an
offence. The AGC has occasionally explained their reasons for certain prosecutorial
decisions, and their prosecutorial discretion does not appear to have been
impaired in such instances.[23] Instead, explaining
prosecutorial decisions appears to be complementary to the functions of the
Attorney-General in this context. Such an obligation would provide clarity to
accused persons who could potentially face the death penalty for their offences.
Further,
greater transparency in the exercise of prosecutorial discretion, as opposed to
an opaque blanket of secrecy, would bolster public trust and confidence in the
AGC.
IV. Specific guidelines to promote transparency in decision making
Given
that the life or death of an accused person hinges largely on prosecutorial
discretion in this context, prosecutorial discretion should also be guided by
published, non-binding and specific guidelines.[24] This would encourage
greater scrutiny of prosecutorial decisions beyond the AGC and promote
consistent decision-making by the prosecution.
Parliament
can further preserve the flexibility of prosecutorial discretion and abate
concerns about new defences arising from these guidelines by enacting the
appropriate legislation; that is, legislation which provides that
non-compliance with these guidelines does not give the accused a cause of
action against the prosecution.[25]
While
the AGC has argued that the publication of specific guidelines could lead to an
increase in offending in areas where the prosecution might exercise restraint,[26] this is not a
concern in the present context. An accused person who is guilty of an offence
under the first limb of s 299 faces imprisonment for life or
imprisonment for a term of up to twenty years.[27] This sentencing
regime still poses a strong deterrent to potential offenders. Therefore, it is
unlikely that there will be more offenders simply because the prosecutorial
guidelines imply an imprisonment sentence of up to twenty years or for life,
instead of the death penalty.
V. The court as a check and balance?
Notably,
the AGC has made the implicit assertion that the court serves as a check and
balance against the arbitrary exercise of prosecutorial discretion. This is
because it is the court who ultimately determines the guilt of an accused
person and the punishment that follows if the accused person is found guilty.[28]
However,
this form of check and balance is significantly curtailed in the context of s
300(a) and the first limb of s 299. As the SGCA in Mageswaran
stated, “any exercise of prosecutorial discretion would inevitably have an
impact on the outcome and the eventual sentence”.[29]
It
should be reiterated that the elements of the first limb of s 299 and s 300(a)
are exactly the same, and it follows that where none of the Exceptions to s 300
apply, an accused person who fulfils the elements of the first limb of s 299
would also be able to fulfil the elements of s 300(a). Assuming that the
accused person did indeed have an intention to kill, and performed an act which
caused the victim’s death, it follows that the prosecution’s preferred charge
is the crucial factor which draws the fork in the road between the mandatory
death penalty and a term of imprisonment. This is especially so as the courts
have evinced an unwillingness to question or interfere with the prosecution’s
exercise of their discretion in such a context.[30] Therefore, where an
accused person may be found guilty of both offences, it is the prosecution who
effectively determines the sentence which follows the finding of guilt.
Further,
the AGC’s reference to judicial review as a clear remedy for the unlawful or
unconstitutional exercise of prosecutorial discretion is unsatisfactory.[31] Owing to the high
office of the Attorney-General, a presumption of constitutionality applies to
prosecutorial discretion.[32] This has the effect
of placing the burden of proof on the accused to specifically produce prima
facie evidence of (1) bad faith, or (2) a breach of his constitutional
rights, for judicial review to be available.[33]
This
is problematic, as the way in which this burden of proof can be discharged is
uncertain and overly onerous on accused persons. In Ramalingam, the SGCA
stated that the appellant in Teh Cheng Poh v Public Prosecutor[34], who was prosecuted
for a capital offence, could “show prima facie impropriety [in the exercise
of prosecutorial discretion] by producing evidence that another offender in
similar circumstances had been prosecuted for a non-capital offence”.[35] This is broadly
analogous to our present case since an accused person can be charged with
either a capital offence under s 300(a) or a non-capital offence under the
first limb of s 299. However, there are two problems associated with such an
approach.
Firstly,
the phrase “similar circumstances” is not precisely defined. How similar
must the circumstances be for an accused person to use Mageswaran
as evidence to discharge this burden of proof? [36]
Secondly,
the phrase “had been prosecuted” suggests that similar circumstances
must be based on past, and not merely hypothetical events.[37] Hence, the accused
person’s ability to rebut the presumption hinges on the availability of
available precedents, which may or may not exist, or which may be inaccessible
to the accused person.
These
problems significantly impair the accused person’s ability to discharge the
burden of proof. It could be briefly suggested that these issues may potentially
be resolved by shifting the burden to the prosecution, who can readily produce
evidence of their decision-making process. However, this inquiry warrants a much
deeper examination, and is not within the scope of the present article.
In
sum, the court’s role as a check and balance against the arbitrary exercise of
prosecutorial discretion appears to be significantly curtailed in the context
of the first limb of s 299 and s 300(a). It follows that greater transparency
and accountability in the exercise of prosecutorial discretion is particularly desirable
in this context.
VI. Conclusion
Given
the current sentencing regime that applies to the first limb of s 299 and s 300(a),
the exercise of prosecutorial discretion in such a context is unjustifiably
opaque. In view of the potential injustice that may be caused, one may even go
so far as to say that the exercise of prosecutorial discretion in this specific
context is dangerous. Therefore, it has been argued that an obligation to
explain prosecutorial decisions, as well as the publication of non-binding and
specific guidelines, would do much to ease these concerns.
[1] 1999 Rev Ed
Sing.
[2] Kumarlingam Amirthalingam, “Prosecutorial Discretion and
Prosecution Guidelines” (2013) Sing JLS 50 at 57.
[3] [1988] SGCA 16;
[1988] 2 SLR(R) 525.
[4] Chen Siyuan, “The Limits of Prosecutorial Discretion in
Singapore: Past, Present and Future” (2013) 1 International Review of Law 1 at
11-12.
[5] Cap 224, 2008 Rev
Ed Sing.
[6] [2019] SGCA 22;
[2019] 1 SLR 1253.
[7] Supra
note 6 at para 35.
[8] With respect, it
is submitted that the SGCA in Mageswaran and the
authors of Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in
Malaysia and Singapore, 3rd Ed (Singapore: LexisNexis, 2018) may have
wrongly cited Dewi Sukowati
v Public Prosecutor [2017] SGCA 8 [Dewi
Sukowati] as another instance of a
scenario where the accused person was charged under the first limb of s 299
even though no partial defence was open to the accused. In Dewi
Sukowati, both the SGHC’s and SGCA’s judgements
noted at para 42 and para 14 respectively that Dr Kenneth Koh of the Institute
of Mental Health was of the opinion that the accused person qualified for the
partial defence of diminished responsibility under Exception 7 to s 300 of the
Penal Code. This was the likely reason why the prosecution had charged the
accused under the first limb of s 299 rather than under s 300(a) of the Penal
Code. Nonetheless, such ambiguity could have been avoided if the prosecution
had an obligation to explain its exercise of prosecutorial discretion in such a
context.
[9] Supra
note 6 at paras 34-37.
[10] Ibid at para
37.
[11] [2012] SGCA 2;
[2012] 2 SLR 49.
[12] Ibid at paras
74-78.
[13]
Attorney-General’s Chambers, “The Exercise of Prosecutorial Discretion” (January
2012), Attorney-General’s Chambers, online <https://www.agc.gov.sg/docs/default-source/newsroom-doucments/media-releases/2012/agcpressrelease200112-theexerciseofprosecutorialdiscretion.pdf>.
[14] Ibid at para
11.
[15] Supra note
6 at para 36.
[16] In their press
statement on the exercise of prosecutorial discretion, supra note 14 at
para 12, the AGC has stated that “where the reason for prosecuting or not
prosecuting raises a question of importance for the public and disclosure would
not impact the proper resolution of the case, the Attorney-General’s Chambers
does consider providing at least brief reasons for its decision, so that confidence
in the justice system may be maintained”. See for example Ng Huiwen, Death of Annie Ee: AGC
explains why couple who abused her were not charged with murder (December
2017), online, <https://www.straitstimes.com/singapore/death-of-annie-ee-agc-explains-why-couple-who-abused-her-were-not-charged-with-murder>.
[17] [2020] SGCA 11.
[18] Ibid at para
117.
[19] Gary Kok Yew Chan, “Prosecutorial Discretion and the Legal
Limits in Singapore” (2013) 25:1 SAcLJ. 15.
[20] Keith Jieren Thirumaran, “The Evolution
Of The Singapore Criminal Justice Process” (2019) 31 SAcLJ. 1042. See also the SGCA’s recent ruling in Muhammad Nabill bin Mohd Fuad v Public Prosecutor [2020] SGCA 25, where the court held that, in addition to
the obligations established in Muhammad bin Kadar and another v Public
Prosecutor [2011] SGCA 32, the prosecution also has the obligation to
disclose the statements of material witnesses even if the said witness was not
called by the prosecution to testify.
[21] Supra note
13 at para 10.
[22] Supra note
1.
[23] See for example:
Ng Huiwen, “Death of Annie Ee:
AGC explains why couple who abused her were not charged with murder” (December
2017), The Straits Times, online, <https://www.straitstimes.com/singapore/death-of-annie-ee-agc-explains-why-couple-who-abused-her-were-not-charged-with-murder>;Attorney-General’s
Chambers, “PP v Joshua Robinson” (March 2017), Attorney-General’s Chambers,
online <https://www.agc.gov.sg/docs/default-source/newsroom-doucments/media-releases/2017/agc-press-release-jr-8-mar-17bd1400354dcc63e28975ff00001533c2.pdf/>; and Amelia Teng, “NUS Peeping Tom given conditional
warning due to high likelihood of rehabilitation: Police” (23 April 2019), The
Straits Times, online: <https://www.straitstimes.com/singapore/courts-crime/student-in-nus-sexual-misconduct-case-given-conditional-warning-due-to-high>.
[24] The United
States of America is one example of a jurisdiction which has adopted a similar
approach to the publication of non-binding prosecutorial guidelines. See The
United States Department of Justice, “Justice Manual”, online: <https://www.justice.gov/jm/justice-manual>.
[25] Supra
note 4.
[26] Supra note
13 at para 9.
[27] See s 304 of the
Penal Code (Cap 224, 2008 Rev Ed Sing). Further, an offender who is sentenced
to imprisonment for life is also liable to caning, and an offender who is
sentenced to term imprisonment is also liable to fine or to caning.
[28] Supra note
13 at para 13.
[29] Supra note
6 at para 37.
[30] See Ibid.
[31] Supra
note 13 at para 14.
[32] Supra note
11 at para 44.
[33] Ibid at paras
70-72.
[34] [1979] 1 MLJ 50.
[35] Supra note
11 at para 26.
[36] Supra note 19 at para
42.
[37] Ibid.