The Prosecution is actuated by public interest, not popular opinion. As a representative of the public, the Prosecution conducts prosecutions for the good of the public and in the name of the public, even if these decisions are not popularly received. The insulation of the Prosecution from popular and political pressures also ensures that influential Singaporeans are not let off simply because of their high social standing and/or political connections, and consequently, safeguards the fundamental principle that all should be treated equally in the eyes of the law.

Similar to opinions held by the public, the views of victims are persuasive but not determinative. There are cases where the victims do not wish for the accused to be prosecuted. These include domestic violence or sexual abuse cases, where the victim does not want to damage the relationship with their abusive spouses so that they could still cohabit together, or where the victim is fearful of shame and stigmatization. Even more blatant are cases where the accused pays a large sum of money to persuade victims to retract their claims. Despite this, even if victims are uncooperative, unwilling, or even hostile to the prosecution bringing charges against the relevant perpetrators, the Prosecution may still continue with the prosecution notwithstanding the victim’s personal wishes and interests. The accused has committed an offense against not only the victim, but Singaporean society in general, and the Prosecution must accordingly make them answer to the public.

Conversely, there are cases where the victim feels very strongly that the offender must be punished, but there is no public interest to be served by the prosecution. This ties in with our subsequent question.

Why would the Prosecution issue mere conditional warnings or press a lesser charge for offences that seem to constitute a more serious charge?

In short, the possible answers to this question include: no public interest being served by the prosecution, difficulties of evidence, and/or difficulties in establishing the requisite elements of an offence.

The prosecutors often adopt a sequential process in ascertaining whether one should be charged with an offence. Firstly, prosecutors spend much time ascertaining whether a criminal offence is committed. This often requires deep research into possible offences and is a “factual and legal exercise”. Secondly, evidence must be looked at to determine if it is admissible in court, whether it is reliable, and the weight that courts will give to said evidence. Thirdly, the prosecutors determine if there are “reasonable prospects of obtaining a conviction”. Fourthly, courts then examine whether the public interest demands that the person be prosecuted – not all people who commit offences are prosecuted, as the public interest may not be served because the offender is “a first-time offender, below 18 years of age, committed a minor offence, is remorseful, made amends, or is unlikely to repeat the offence”. This explains why a mere conditional warning might be issued for certain transgressions.

Furthermore, in some cases, difficulties arise as to issues of evidence or as to successfully establishing all the elements of a more severe charge. In the recent Orchard Towers murder case, Chan Jia Xing was originally charged with the murder of Satheesh Noel Gobidass, but his charges were subsequently dropped and he was issued with a conditional warning due to the difficulty in ascertaining evidence that he participated in the attack. Even for 5 of the other 6 other participants in the murder, the murder charges were downgraded to lesser charges.

The Prosecution’s discretion to downgrade or substitute the original charges for different charges or conditional warnings continue to reflect the limits of forensic science and evidence gathering, especially when it comes to cases of murder. In cases where a person has been killed, the court will “consider all relevant and admissible factors that reflect the accused’s intentions, such as the individual characteristics of the accused as well as the objective surrounding circumstances of the crime, including the manner in which the crime was committed, the nature of the acts, the type of weapon used, the location and number of injuries inflicted on the victim, and the way the injuries were inflicted”. But where there is a lack of evidence in support of the aforementioned factors, the Prosecution has little choice but to bring lesser charges that are more easily proved, or substitute it for conditional warnings.

Crucially, these above-mentioned considerations that play into the prosecutorial decision-making process are known only to the Prosecutor and not to the public. This is because the Prosecution is under no obligation to disclose his reasons for prosecuting in a certain way. The absence of such an obligation from Singapore’s criminal justice system will be critically evaluated two questions later.

What mechanisms are in place to ensure that the Prosecution does not abuse its powers?

Given the expansiveness and scope of the Prosecution’s powers, one may wonder what mechanisms serve to protect against abuse. One such mechanism is judicial review, where the exercise of prosecutorial discretion may be reviewed and assessed by courts.

In the case where an offender faces harsher charges than their co-offenders, this offender may challenge the constitutionality of his prosecution before a court, as his right to equality is enshrined by Article 12(1) of the Constitution. However, the burden of proof lies on him, as there is a presumption of constitutionality and legality with respect to prosecutorial decisions stemming from the doctrine of separation of powers. Therefore, it would seem to be rather difficult for accused persons to be successful in this endeavor.

As an illustration of this, in the notorious Yong Vui Kong drug-trafficking case, Yong challenged the constitutionality of his prosecution, as he was facing the death penalty while the Prosecution applied for a discharge not amounting to an acquittal (DNAQ) for the more culpable criminal mastermind, Chia Choon Leng, who orchestrated the heroin trafficking. However, the court held that the DNAQ was applied and issued for legitimate reasons such as Yong’s previous express of fear and unwillingness to testify against Chia, and the resultant paucity of evidence. In any case, Yong was not actually discriminated against as Chia’s DNAQ was initially also a capital charge and also did not prevent a future prosecution. Yong was ultimately unsuccessful in his constitutional challenge.

Therefore, given the difficulty of a successful judicial review, it is arguable that inadequate mechanisms exist to safeguard against abuse of prosecutorial discretion. Together with the previous question, this segues into the next question:

Why is there no obligation for the prosecution to explain their prosecutorial decisions for every case? Should such an obligation be imposed?

This question has been hotly contested in the public arena before. Consequently, the Attorney General’s Chambers (AGC) has released a press statement explaining why these requirements have not been imposed.

According to the AGC, the first reason why the Prosecution is not obliged to explain its decisions is because this would defy the principles of judicial deference by the courts to the AG’s discretion. This would “impair the performance of a core executive function designated in the Constitution”.

Secondly, an obligation on the Prosecution to explain their prosecutorial reasons and considerations would unduly delay criminal proceedings and undermine prosecutorial effectiveness. Thirdly and finally, the imposition of such an obligation may also incentivize dissatisfied offenders to frequently challenge their prosecutions in courts.

Whether the above explanations provided by the AGC are satisfactory is an open debate. In his article “Re-examining Prosecutorial Discretion in the Context of s300(a) Murder and s299 Culpable Homicide”, Nicholas Khong argues that the Prosecution’s obligation to explain their decisions need not extend to every case. For example, the obligation could be confined to murder and culpable homicide cases, in which prosecutorial discretion assumes elevated importance. This would dispel the concern of unnecessarily elongating criminal proceedings. Furthermore, even if frequent challenges to the courts do ensue, Khong argues that this could be justified on the grounds of the accused person’s “irreversible and unjustified loss of life or liberty” being at stake in the case of a prosecutorial mistake.

Overall, given the difficulty and low likelihood of mounting successful judicial reviews (as previously explained) and the life-or-death consequences of prosecutorial biases and mistakes manifesting in serious offences, perhaps the Prosecution should be obliged to justify their prosecutorial decisions under specified circumstances.

Why are prosecutorial discretion guidelines not released to the public? Should they be released?

In the same press release mentioned in the previous question, the AGC explained that the guidelines relating to prosecutorial discretion are not publicized to enable the AGC to retain flexibility to depart from the guidelines when justice demands as such. Furthermore, any guidelines that are eventually released would invariably be vague and uncertain, and cannot account for the nuances of each individual case. Conversely, if specific guidelines that identify prosecution priorities and areas where the Prosecution might exercise restraint were published instead, this could potentially “lead to an increase in offending in the latter areas as accused persons might then be incentivised to commit such crimes expecting that they probably would not face the full force of the law”. It is for these reasons that the AGC justifies why prosecutorial discretion guidelines should not be disclosed to the general public.

It is submitted that these explanations provided by the AGC are principled and satisfactory. The nature of prosecutorial discretion is such that it is not meant to be circumscribed by specific and inflexible guidelines; and if vague guidelines were issued, these would simply serve no practical purpose. Therefore, there is no self-defeating way to introduce publicly-disclosed guidelines.

Furthermore, the prosecutorial considerations that Prosecutors regularly contemplate are not exactly hidden away and obscured from the public. With a simple read of a few relevant cases and news articles, lawyers and even mere laypersons can easily identify some factors that are relevant to the exercise of prosecutorial discretion, even in the absence of explicit guidelines.

Conclusion

In closing, the significance of prosecutorial discretion cannot be understated. It is an indispensable tool that imbues our criminal justice system with flexibility, and this article has sought to clarify its underlying principles and working mechanism. However, this article has also highlighted the potential inadequacy of existing checks and balances against abuses of prosecutorial discretion, and expounded on the potential need for reform with respect to the currently non-existent obligation on the Prosecution to explain their prosecutorial decisions.


Benjamin Goh & Tan Ying Qian


*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.

The glamorisation of criminal proceedings stemming from such American dramas have led to several misconceptions amongst the public. It seems apparent that many Singaporeans take comfort in the false sense of security that an encounter with the law is unlikely. Even if they do, there is always the potential hubris in believing that they already know what to do. Unfortunately, being unaware of one’s legal rights has led to dire consequences. In January 2016, a 14-year old boy was found dead at the foot of his block after being investigated for outraging the modesty of an 11-year-old girl. He was taken into police custody and released on bail on the same day of his death.

Following this incident, several questions were raised about how police investigations are conducted with youth suspects. In this article, we hope to address some of these issues and raise awareness of what one’s legal rights are, both to the youth and general public.

When may one get arrested and what happens during an arrest?

Arrestable vs non-arrestable offences

Perhaps the most important question therein is when may you even be arrested in the first place? In general, criminal offences are classified as either ‘arrestable’ or ‘non-arrestable’. Arrestable offences empower policemen to make an immediate arrest without a warrant. Conversely, for ‘non-arrestable’ offences, policemen must obtain a warrant for arrest to take the accused into custody. To find out whether an offence under the Penal Code is arrestable or non-arrestable, one has to look at the First Schedule of the Criminal Procedure Code (CPC). Common ‘arrestable’ offences include unlawful assembly, reckless driving, murder, sexual assault, voyeurism and cheating. In addition, offences found in other legislation such as the Misuse of Drugs Act or COVID-19 (Temporary Measures) Act can be found by referring to the particular legislation.

Bailable and non-bailable offences

Apart from the aforementioned classification, offences are also classified as ‘bailable’ or ‘non-bailable’. When an offence is bailable (e.g. cheating), the accused may be entitled to release on bail or personal bond. On the other hand, where the offence committed is non-bailable (e.g. rape), the Court has the discretion whether to release the accused. If bail is not granted, the accused will be placed in remand in prison. Whether an offence is bailable or non-bailable can be seen in the same table above under the fifth column. For the avoidance of doubt, the accused should seek advice from his/her lawyer.

Citizen’s arrest

It is also interesting to note that policemen are not the only people who can make arrests. Ordinary citizens may also make arrests if they witness the commission of an arrestable and non-bailable offence under section 66 of the CPC. These offences are typically grave offences such as kidnapping, rape, murder, robbery and theft. If a private arrest is made, the person making the arrest must turn the arrested individual over to the police as soon as possible.

Use of force

One would probably recall that in May last year, social media was bombarded with huge controversy over the death of an African-American male, George Floyd, during his arrest. How real, then, is this threat in Singapore? Should we be worried that such a tragedy may happen locally?

In Singapore, the arrest procedures are generally governed by section 75 of the CPC. In making an arrest, the police officer must touch or confine the body of the person to be arrested unless he submits to arrest. If the person resists, the police officer may use all reasonable means necessary to make the arrest. Furthermore, the person arrested must not be restrained more than is necessary to prevent his escape under section 76. Thus, to avoid unnecessary use of force, the accused will likely benefit from complying with the arrest and the instructions of the police. Though section 63 of the CPC empowers police officers to act in any manner (including anything that is likely to cause death), this is only under specific circumstances where the officer has reasonable grounds to believe that the person is about to do something which may amount to a terrorist act; and that such act by the police officer is necessary to apprehend the person.

Can police officers search my home?

Search for persons

A police officer may search one’s place of residence if they have reason to believe that the person to be arrested is inside the place. The owner of the residence is obliged to allow the police officers free entry and provide all reasonable facilities for a search. Moreover, every person found in the residence may be lawfully detained until the search is complete. It is important to note that the police officer must state his authority and purpose for demanding entry. For women, searches must be conducted by a female personnel unless the police officer has reason to believe that there is terrorist conspiracy involved or that time is of the essence.

Search for objects

In general, personnel can only conduct such searches if the Court grants a search warrant. The search warrant should be in writing and will bear the seal of the Court, valid only for the number of days stated. The “searcher” must identify himself to the occupier, show evidence of his identity (e.g. police ID), show the occupier the warrant, and if the occupier requests, he/she must also provide a copy of the warrant to the occupier. However, a warrant may not be needed if the personnel has reason to believe (a) that there is a person unlawfully confined in the place and a delay would adversely affect the rescue of this confined person, (b) that there is stolen property concealed in the premises and delays would likely lead to the removal of such items, (c) that there is crucial evidence concealed which would likely be removed.

Seizure of items

Police officers may also seize or prohibit the disposal of or dealing in any property which is suspected to have been used or intended to be used to commit an offence; or which is suspected to constitute evidence of an offence. One should note that the police officer must prepare and sign a list of all things seized during the search, recording the location where each such thing is found. The occupier may attend the search and must be given a signed copy of the list. In cases involving computers, police officers may also access, inspect and check the operation of a computer which he/she has reasonable cause to suspect that it was used for the commission of the offence or contains crucial evidence. They may search any data contained in the computer and make copies of such data and may prevent any other person from gaining access to the computer.

What happens upon arrest?

Upon arrest, the accused may be detained for up to 48 hours while investigations take place. During this time, the police officers will interrogate the accused and search for more facts about the case. The police officer may also search the places as aforementioned. What is one entitled to during this time?

What rights are you legally entitled to during investigation proceedings?

At this juncture, it is imperative to stress once again that investigation proceedings in Singapore differ greatly from what is portrayed on television. It is essential that one knows their actual legal rights when being detained by the police. Moreover, even if one is not being arrested, he/she may be called to help with the investigation proceedings.

The right to remain silent

Now to deal with the infamous question, do you really have the right to remain silent? As mentioned earlier, most people would have heard of the Miranda warning, arising out of the Fifth Amendment in the US Constitution which protects one’s rights against self-incrimination.


An example of the Miranda Warning

In Singapore, the situation is more complex. There is a statutory privilege against self-incrimination. Section 22(2) of the CPC, states that “the person examined shall be bound to state truly what he knows of the facts and circumstances of the case, except that he need not say anything that might expose him to a criminal charge, penalty or forfeiture”. However, other statutory provisions give the police a great deal of investigative powers. In practice, this means that while you are technically allowed to remain silent, this might be counted against you. Section 23 of the CPC essentially states that the withholding of information (even if you reveal it later) might cause the judge to be less likely to believe you. Furthermore, it is difficult to know exactly what facts may be helpful in defending your case, and you may hence either (a) say something that incriminates you or (b) keep silent about something that may help you in court.

Unlike the US, where police officers are required to issue the Miranda warning, the Singaporean police are not bound to inform you of your right to remain silent, and in most cases, therefore, they don’t. This lack of warning does not affect the admissibility of your statement (ie. what you say can still be used in trial). Having a lawyer present would help greatly, but in most cases, as we will further discuss below, you would only get access to one after being interrogated. Human rights lawyers such as M Ravi have argued for a restoration of the right to remain silent during police interrogations, as it is a “constitutional right” which becomes particularly important if you are “convicted on your confession alone”. 

The right to amend or delete parts of your statement

While being interrogated, police officers will record your statements and return them back to you for signing. These statements will be recorded in English and a translator will be available, upon request, should you be unable to speak or read English. Upon signing the statement, one is then unable to subsequently amend it. You should note that nobody can force or coerce you into signing your statement. You can amend or delete parts of your statement until you are fully satisfied, before signing it. This is particularly important in situations where there is a third-party transcribing the information, as they might unintentionally change the meaning of words.

The right to counsel

The Singapore Constitution guarantees citizens access to a legal practitioner of his/her choice under Art 9(3). However, another stark difference from television shows is the timing which one can get access to an attorney. In most shows, the accused gets access to a lawyer immediately upon being arrested, or “lawyering up”, and the lawyer would be present during investigation proceedings. However, in Singapore, this is not the case. It was established in the case of Jasbir Singh v Public Prosecutor  that an arrested person is only to be granted access within a “reasonable time from his arrest”. The definition of a “reasonable time” includes time required by the police to conduct the investigation, including transportation of articles or people. In essence, this means that you may not be granted immediate access to a lawyer upon being convicted. In James Raj v Public Prosecutor, the court affirmed that the right to counsel under Art 9(3) of the Singapore Constitution cannot be exercised immediately after arrest. The court pointed out that such a right only had to be exercised “within a reasonable time” after arrest so that police investigations are not hindered.

It is hence essential that you know your legal rights, most importantly the right to remain silent, as you will likely not have the help of a legal counsel. It is proposed that the right to counsel under Art 9(3) of the Singapore Constitution should be given its full effect rather than allowing the police to trump the Constitution by deciding on what a reasonable time after arrest is. Furthermore, what do lawyers present in an investigation do that would hinder a lawful investigation? If a lawyer’s primary duty is to the Court, then it is in the best interests of all stakeholders including the police that an investigation is carried out lawfully.

The right to a phone call when being investigated

Upon being arrested, it is normal to feel anxious, particularly if you are under the age of 21. You have the right to request to make a phone call to your family members. However, should the phone call possibly interfere with police investigations, you may be denied your request. Nonetheless, you should ask for these requests to be recorded (including that they were possibly denied), as this may be beneficial in later proceedings.

Other rights

While being investigated, you may also request for food, drinks or toilet breaks. Furthermore, if you feel unwell, you may request for permission to see a doctor. All such requests should also be recorded.

Right to have a legal guardian present (if you are under the age of 16)

Following the suicide of Benjamin Lim, the Appropriate Adult (AA) Scheme was introduced by the Ministry of Home Affairs. Under this scheme, youth suspects will be accompanied by trained volunteers during the interrogation process. The volunteer will not give legal advice, but will rather ensure that the accused understands the questions posed to him/her, and that the investigations officer understands the accused’s answers. While more can be done to ensure the proper handling of young suspects, the presence of a third party serves to alleviate parents’ concerns, as well as provide comfort to the youth.

Conclusion

In conclusion, it is evident that much of what we see on television is starkly different from the actual situation in Singapore. We hope that this article has clarified some doubts and provided essential information on how to be prepared for the unforeseen. For more information, one may wish to look at the various government websites (such as the Ministry of Law, Ministry of Home Affairs, etc.), the various legislation found online (notably the Criminal Procedural Code and the Penal Code) and the Law Society of Singapore’s website.

Mavis Ng and Ryan Leong

 
*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.

One of the many posters created to raise awareness. Credit: Singapore Police Force

The police have also started working with neighbourhood convenience stores to combat internet love scams. Notices warning of such scams were placed in the gift cards section of the store, with counter staff instructed to show the advisory to customers who bought gift cards in bulk or do so repeatedly. In addition, National Servicemen from the SPF have been deployed at some convenience stores to give advice to distressed victims of love scams. In 2019, a new Anti-Scam Centre under the SPF’s Commercial Affairs Department (CAD) was set up to combat the persistently rising cases of scams amid a slowdown in almost all other crimes. The Anti-Scam Centre works closely with banks and telcos, with powers to freeze bank accounts and terminate phone lines used by scammers. It also continues to issue scam prevention advisories together with the National Crime Prevention Council.

What does the Penal Code have to say about love scams?

Now that we have learnt about love scams, what is the law doing to protect us? Section 415 of the Penal Code states that:

Whoever… fraudulently or dishonestly induces the person so deceived to… do or omit to do anything which he would not do or omit to do if he were not so deceived, and which act or omission causes or is likely to cause damage or harm to any person in body, mind, reputation or property, is said to “cheat”.

Criminals charged under section 415 may be fined and imprisoned up to 3 years while enhanced penalties under section 416 for cheating by impersonation increases imprisonment to 5 years. Criminals can also be charged under section 503 for criminal intimidation. The punishment for criminal intimidation includes a fine and/or jail term of 2 years in our usual blackmail cases in love scams.

In the criminal justice system, punishment has five recognized purposes: deterrence, incapacitation, rehabilitation, retribution, and restitution. The current punishments in place for love scams appear to be sufficiently harsh for a crime that does not involve physical injury. In fact, its penalties are similar to that of section 321 of the Penal Code for voluntarily causing hurt (VCH). Thus, the incapacitation, retribution and restitution aspect of the punishment seem to be easily fulfilled. The problem lies in deterrence. Such crimes often taken on a borderless nature due to the use of the Internet and love scammers from abroad are often undeterred by the stipulated punishments since they are confident in not getting caught. Some solutions include working more closely with internet providers, app developers and banks worldwide and increasing education efforts of the general public, the latter being more feasible for the government. Cracking down on love scams will be a tremendous task. After all, love scams prey on an inescapable part of being human.

We also need to recognise the emotional trauma suffered by the victims of love scams. Many often feel ridiculed and unwilling to reach out after they have been scammed. More support systems for victims could be put into place, including therapy. However, the State will have to juggle its limited resources in deciding whether this takes priority over the many victims of other crimes who may need more help.

What can we do to protect ourselves?

Aside from a healthy dose of scepticism that one should take when dealing with potential love interests on the internet, love scams are growing increasingly complex. The first step you should take is in ensuring the person is really who they claim to be. However, this is easier said than done if your love interest is from another country since not many people would book a flight just to check. Nonetheless, there is no harm in engaging in conversation with someone from another country as long as you continue to be careful and not part with your money. If your love interest claims to be a local, meet somewhere public like a café so that you can leave without drama if the person turns out to be a catfish. Secondly, while everybody wants to experience love at first sight, take stock of your relationship and how fast it is moving. Can this person really love you in such a short time frame having never met you in person? If you feel that the relationship is moving too fast and you lose your ability to think rationally in the flurry of emotions, why not ask if you could take things slower. Someone who genuinely wants a relationship would not mind but a scammer may feel that his time is better spent on another victim. Lastly, in the later stages of the relationship, continue to be sceptical of requests for money and never send compromising photos of yourself. Follow your love interest to the hospital if he claims to have a sick relative that needs money for treatment.

Love is blind?

It’s a wonderful feeling to fall blindly in love, you see it in fairy tales and movies. However, it is important to keep our eyes open for love scams that prey on the idealistic fantasies of its victims. The government has been stepping up its efforts in putting a stop to online scams but it can only do so much. Ultimately, the only person that can stop a love scam from happening is you. Always exercise caution in dealing with strangers online and be prudent with your money. Love doesn’t always have to be blind.

Scott Yap

*The views and opinions expressed in this article do not constitute legal advice and solely belong to the author and do not reflect the opinions and beliefs of the NUS Criminal Justice Club or its affiliates.