Prosecutorial Discretion Explained

February 6, 2022

Recently, the exercise of prosecutorial discretion has come to the fore in certain high-profile criminal cases. In the 2017 Annie Ee case, where an intellectually disabled woman was extensively tortured to death by her flatmates, the prosecutorial decision to charge the couple with voluntarily causing grievous hurt as opposed to murder or culpable homicide sparked heated furore amongst the community. In 2019, while reviewing the High Court’s conviction of P. Mageswaran who was charged with culpable homicide instead of murder, the Court of Appeal opined that the Prosecutor had preferred this lesser charge “having weighed all the relevant circumstances in the exercise of prosecutorial discretion”.What is the nature of the Prosecutor’s discretionary powers, and what are the legal limits that circumscribe them (if any)? This article seeks to shed light on this widely misunderstood feature of our criminal justice system.

What is prosecutorial discretion?

In Singapore, the Public Prosecutor (PP) is the Attorney-General (AG). Article 35(8) of Singapore’s Constitution confers upon the AG an “unfettered” discretion over the initiation, conduct and discontinuation of criminal proceedings provided that it is exercised constitutionally and in good faith. However, the AG does not exercise this function alone, as he appoints Deputy Public Prosecutors (DPPs) and Assistant Public Prosecutors (APPs) to carry out the duties of the PP. Collectively, they are known as the “Prosecution”.

Essentially, Art 35(8) means that the Prosecution can decide whether, what, and how many charges to press against accused persons; and whether certain charges should be dropped or dismissed. The Prosecution can also bring and recommend divergent charges and sentences for two offenders who have committed substantially the same offence, or were involved in the same criminal enterprise.

What is the underlying rationale for prosecutorial discretion?

Prosecutorial discretion exists to safeguard the efficiency of criminal justice systems, as “automatic prosecutions” would only create a deluge of prosecutions and overwhelm the courts.

In some cases, the offence may be trivial in nature, such that conducting a prosecution may not be worth the judicial resources consumed. The Prosecution may also decide that the accused should be given a second chance – perhaps issuing a conditional warning is more warranted than bringing him to court. Thirdly, the charges that are brought must reflect the culpability of the accused person – sometimes, many charges can be levied against an individual, and the most appropriate one must be chosen. Therefore, the Prosecution’s decision-making ability is both necessary and justified. The indispensability of prosecutorial discretion also illuminates why it is an essential element of many criminal justice systems and can be found in other common law jurisdictions including the US, UK, Australia and Hong Kong.

Why doesn’t the Prosecution only follow prevailing public opinion, or only act in the victim’s interest?

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.

From secret to invisible societies – the evolution of organised crime in Singapore

By cjc-admin on

July 22, 2021

- CLD Interest Pieces, OTG

Singapore is often extolled for being one of the safest countries with the lowest crime rates. It is almost counter-intuitive for us to imagine the existence of gangs in modern Singapore. For most of us, secret societies simply do not fit into our vision of modern Singapore. The recent arrests in Chinatown of two groups of people charged with suspected involvement as members of an unlawful society, however, might impugn our assumptions. As it turns out, while secret societies might have diminished since the 20^th century, organised crime has not been thoroughly eradicated. Interestingly enough, we begin to witness a new face of organised crime which has taken on a new modus operandi in modern times, sometimes materialising itself in the form of cybercrime.

Before we probe into the present landscape, you might be wondering what organised crime looked like in the history of Singapore and how it has developed over the years.

How did secret societies form in Singapore?

The early secret societies formed in Singapore can be traced to the Tian Di Hui (天地会) which was set up in Fujian – believed to be the first triad ever formed. The Hongmen (洪门), the first ever secret society established in Singapore, traced its origins to the Tian Di Hui.

These secret societies were seen as a fraternity for Chinese immigrants who appreciated the network of both moral and financial support from their fellow brothers. Values of loyalty, righteousness and brotherhood were of paramount importance to triad members. For the many new Chinese immigrants who found themselves isolated by the colonial government, secret societies performed the function of a sanctuary, offering them help and a sense of belonging. These secret societies, contrary to popular belief, held a lot of moral authority which was also recognised by the state. The state sought the help of secret societies whenever major disputes happened within the Chinese community as the Chinese population believed that the secret societies offered better representation of their needs and interests. Secret societies were, in some light, seen positively by both the community and the state.

We tend to associate secret societies with illicit and criminal activities, but it is worth noting that they did not dabble in purely illegal activities and ran lucrative legitimate businesses concurrently. The opium farming syndicates were also the same groups that were involved with the pepper and gambier businesses at that time. Interestingly enough, production and consumption of opium was not illegal in colonial Singapore. When it did become illegal, secret societies carried on their activities partially because of how profitable the market was, but also because many of them had become victims to opium addiction themselves.

What led to their downfall?

The Peace Preservation Act of 1867 and the Dangerous Societies Suppression Ordinance of 1869 were heavy blows to secret societies. The Peace Preservation Act gave the government the power to detain and deport Chinese immigrants who were convicted of involvement in triad activities. This discouraged them from joining secret societies and had severe debilitating effects on the power and influence of secret societies. The Societies Ordinance 1890 was a re-enforcement of the 1869 Ordinance and bestowed upon the government the powers to inspect any society deemed prejudicial to public security and peace. As intended, this was heavily disruptive to the operations of secret societies and gradually contributed to the inevitable decline of secret societies.

The British government also established the Chinese Protectorate which was responsible for the welfare and provision of assistance to newly arrived Chinese immigrants. Over time, the Chinese Protectorate was seen as a practicable resource for immigrants to tap on in order to resolve their problems, as opposed to turning their problems in to the secret societies in hopes of achieving a resolution which was hitherto widely seen as their best alternative. This removed the impetus of many immigrants from joining secret societies and irrefutably had a hand to play in the eventual decline of secret societies.

It would be erroneous to mistake decline for eradication, however. The Societies Ordinance merely forced existing societies to go underground. This meant that they continued to exist in smaller and more inconspicuous forms. This period after the end of the 19^th century saw the rise of groups such as the Malay-dominated OMEGA (Orang Melayu Enter Gangster Area) gang and the female-dominated Red Butterfly group. While gang activity has been actively and heavily curtailed by law enforcement, secret societies were never removed. They were removed only from plain sight. This brings us to the present day.

What do secret societies look like today?

Secret societies continue to exist today, albeit in lesser prevalence. The most eminent of them all, the Salakau, which means ‘369’ in Hokkien, is known to take part in many illicit activities and many of their members have been convicted for crimes such as rioting and extortion. They have been traced to many modern gang incidents such as the Bukit Panjang slashing and the Downtown East slashing. Another notable incident that many will remember is when Tan Chor Jin, nicknamed the One-eye Dragon, performed a gangland-style shooting of a nightclub owner and was subsequently hung for his act of murder. Tan was a member of Ang Soon Tong, a gang which continues to exist today.

Police efforts have also been stepped up to curtail the power these gangs. The police branch has a Secret Society Branch (SSB) which is set up primarily to suppress and eradicate such gangs by way of, inter alia, surprise raids and targeted investigation. The Organised Crime Act of 2015 accords power to the public prosecutor to confiscate assets obtained from criminal activities before sentencing. This prevents the accused from having the financial freedom to jeopardise or interfere with investigations. Education and outreach programmes are also conducted by the Police to educate impressionable youths who think that gangs are cool and are susceptible to falling to the temptation of joining one. The Ministry and Social and Family Development conducts youth outreach programmes, as well as intervention programmes, to discourage youths who have been affiliated with gangs from going any further. This multi-pronged approach has helped to greatly suppress gang activity in Singapore.

It is crucial to keep in mind that secret societies have evolved with the changing times as well, however. While the threat of gangs operating physically has been, for the most part, neutralised by strict legislation and comprehensive preventive efforts, we begin to see a new face of organised crime in the form of organised cyber-crime. An example that quickly comes to mind is the cyber-attack on the Ministry of Defence in 2017, where personal details of military personnel were taken and leaked by hackers.

While Singapore has yet to see the emergence of well-known organised cybercrime gangs to the notoriety of some international groups such as Cobalt Cybercrime Gang and Lazarus Gang, experts and law enforcement say that it is a growing threat. Furthermore, secret societies have been making use of the Dark Web to access online markets in order to sell illegal items such as drugs and firearms. Mr Rick McElroy, a strategist at digital security firm Carbon Black, said that the Dark Web “allows for criminals with little technical knowledge to become cyber criminals faster and with better efficiency”. Using both the Dark Web and a series of encrypted websites, these sales and the people behind these sales cannot be easily tracked by authorities. If you thought that combatting secret societies was difficult, how intractable of a problem is the genesis of these ‘invisible’ societies? The wielding of parangs may have been replaced by the clicking of a mouse, yet the effects to society are not any less deleterious. This new face of organised crime is one that rightfully deserves more attention and we should expect that the authorities will have their hands full coming up with a strategy to counteract such a potent threat.

Final words

As it turns out, those of us who believed that Singapore is free of triad activity are regrettably mistaken. It would be a graver mistake, however, for any of us to think that the secret societies of today look and operate like those of yesteryear. As criminals learn and adapt, so must the rest of us hoping and working for a safe and secure society.

David Chao and Stephen Yeo

*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.

Know Your Legal Rights

By cjc-admin on

May 13, 2021

- CLD Criminal Law Basics, OTG

Getting arrested is no laughing matter. For the common man, one’s knowledge of criminal proceedings is often confined to what is portrayed on television. With easy access to American television programmes, Singaporeans may be familiar with the Miranda warning – “You have the right to remain silent. Anything you say may be used against you in a court of law. You have the right to an attorney. If you cannot afford an attorney, one will be provided for you...” But how applicable is this locally when it comes to other similar US practices?

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

S 300: Is there a need for change?

By cjc-admin on

January 6, 2021

- CLD Case Commentaries, OTG

In light of the recent Penal Code reforms, s 300 on murder still remains virtually the same. However, over the years legal academics have raised riveting points as to how certain provisions of s 300, in particular s 300(c) and s 300(d), are in need of reform due to questions of unfairness and redundancy. This article will aim to shed some light on these arguments and hopefully give its readers a better understanding of potential inconsistencies in the Code.

S 300(c): Is it fair?

As per s 300(c), any voluntary act causing death is murder “if it is done with the intention of causing bodily injury to any person, and the bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.”

The mens reas requirement can be split up into two distinct elements:

The accused intended to cause bodily injury.
The bodily injury intended to be inflicted is sufficient in the ordinary course of nature to cause death.

The court in Virsa Singh v State of Punjab [1958] SCR 1495 (“Virsa Singh”) added an additional requirement of nexus between the intended injury and the injury actually inflicted which was sufficient in the ordinary course of nature to cause death, which has been subsequently endorsed by Singapore’s courts. The court held at [1500] that there must be “an intention to inflict th[e] particular bodily injury” which caused death and that the “the injury of the type just described [must be] sufficient to cause death in the ordinary course of nature”. The court further added at [1501] that the second party of the enquiry “is purely objective and has nothing to do with the intention of the offender”.

According to the principles outlined in Virsa Singh, as long as the bodily injury inflicted which caused the victim’s death is of the same type as the intended bodily injury and the bodily injury inflicted is sufficient to cause death in the ordinary course of nature, then the accused would be guilty of murder under s 300(c) even if he only intended lesser harm and did not contemplate the possibility of death.

Such an objective approach to s 300(c) raises several issues, the first being that “punishment is thus imposed out of proportion to the degree of culpability of the offender”. As Ramraj explains, given that s 300(c) “expressly directs” the courts to consider “only whether the actual injury was sufficient in the ordinary course of nature to cause death, it is difficult to imagine a situation in which the court would ever conclude that it was not, except on the most unusual facts”. This can lead to an outcome where “a person can be convicted of murder even if he or she intended to inflict only the most trivial of injuries if somehow the injury results in death”. In such a case, the punishment of life imprisonment or discretionary death sentence for s 300(c) seems unfairly excessive and disproportionate when compared to the accused’s established culpability.

The second issue arising from s 300(c) is that criminal liability would now depend on “moral luck”, in the sense that “it depends on luck or chance and, in any event, on circumstances that are beyond that person’s control as a moral agent”. In explaining his point on “moral luck”, Ramraj referred to the following two hypothetical scenarios:

“X cuts the victim on his foot with the specific idea of avoiding the causing of a fatal injury. But an artery is severed and the medical evidence is that in the ordinary course of nature the injury would prove to be fatal.”
“Y cuts the victim on his foot with the specific idea of avoiding the causing of a fatal injury. The knife misses an artery by two millimetres and the victim suffers but a minor injury.”

Assuming that neither X nor Y “has any special knowledge of human anatomy, it is purely a matter of chance that X happens to hit an artery but Y does not”. However, X and Y face “profoundly different penal consequences”, whereas “Y faces a charge of voluntarily causing hurt” and a maximum of imprisonment for three years, X faces the punishment of life imprisonment or discretionary death sentence. As Rajah put it, the fact that this difference in legal outcomes is a result of something as fickle and unpredictable as moral luck, “is manifestly unfair and inconsistent with a criminal justice system that has any concern for the moral culpability of the offender”.

S 300(d): Is it redundant?

As per s 300(d), any voluntary act causing death is murder “if the person committing the act knows that it is so imminently dangerous that it must in all probability cause death, or such bodily injury as is likely to cause death, and commits such act without any excuse for incurring the risk of causing death, or such injury as aforesaid.”

The illustration of s 300(d) provided in the Penal Code is as follows; “A, without any excuse, fires a loaded cannon into a crowd of persons and kills one of them. A is guilty of murder, although he may not have had a premeditated design to kill any particular individual.” A closer examination of this classic illustration suggests that cases intended by the Penal Code to fall under s 300(d) can actually be subsumed under s 300(a) instead, making s 300(d) somewhat redundant.

As per s 300(a), any voluntary act causing death is murder “if the act by which the death is caused is done with the intention of causing death”. Intention can be divided into direct intent and oblique intent. When first introduced in academic literature, oblique intent was defined as “a side effect that you accept as an inevitable or certain accompaniment of your direct intent”. This idea of virtual certainty of death has been accepted as a subset of intention in Woollin [1999] 1 AC 82 at [96], and a similar test was approved in Ong Beng Leong v PP [2005] 1 SLR(R) 766 at [24], in the context of the Prevention of Corruption Act. Oblique intent is now officially recognised as a definition of intention under the Penal Code in s 26C(2)(b), as of the recent Penal Code reform in 10 February 2020.

Turning back to illustration (d), when A fired a cannon into a crowd his direct intent may not have been to kill anyone. However as long as it can be proven on the facts that he was virtually certain that death would be a side-effect of firing the cannon, he is guilty of a crime under s 300(a). Thus, s 300(d) becomes redundant as cases of foreseen but not intended risks of death intended by the Code’s drafters to fall under s 300(d) can now be dealt with under s 300(a).

Conclusion

As it has been argued, the Code is not without its flaws. There is always room for improvement and we have our legal academics to thank for helping to give their input. It is our hope that future amendments to the Code will continue to strive for consistency and fairness.

Ashna Khatri

The “Promising Future” Plea: Leaving Victims in the Dark?

By cjc-admin on

December 16, 2020

- CLD Case Commentaries, OTG

An ongoing spate of sexual or violent offences committed by university students have put Singapore’s judicial system under the spotlight. Uncharacteristically vocal in their displeasure with the criminal sentencing and judicial reasoning for these cases, the frequent invocation of the “bright” or “promising future” mitigation plea has left the community angered.

Singapore’s criminal justice system has undergone an evolution of sorts. From our mandatory death penalty laws taking on a discretionary nature to amendments to the Misuse of Drugs Act emphasising the rehabilitation of recalcitrant offenders, we are seeing long-standing criminal justice principles such as retribution and deterrence being increasingly counterpoised by rehabilitation. It is against this backdrop that we must assess the defensibility of the “promising future” mitigation plea.

Criminal justice, mitigation pleas and sentencing in Singapore

Singapore’s criminal law is largely statutory in nature, where most offences are codified in the Penal Code and other statutes such as the Misuse of Drugs Act and Vandalism Act. Following an offender’s conviction, the penalties imposed could range from a fine, imprisonment, caning, reformative/corrective training or community service, or a combination thereof.

Though judges are statutorily bound by the upper and lower limits stipulated in the relevant Acts and Codes along with guidance by the reasoning and sentencing benchmarks laid out by past judges, they do possess some latitude and discretion whilst passing sentences. Sentences may be lengthened or lightened by aggravating and mitigating factors respectively, with the latter being enclosed within defendants’ mitigation pleas. Mitigation pleas are regularly heard in most jurisdictions and aid the law in striking an equilibrium between rehabilitating the perpetrator with the eventual goal of re-integrating him back into society and punishing him as a deterrence from committing crime.

An analysis of the “promising future” mitigation plea

Despite only recently making headlines, our research has revealed that the “promising future” plea has in fact been heard since 1995. This strategy attempts to highlight a defendant’s favourable future prospects to persuade the court to exercise leniency in its sentencing. Contrary to popular belief, cases seeing the invocation of “promising future” are not limited to sexual offences; they run the gamut, from extortion and forgery to negligence and drug consumption.

The table below showcases some instances where the “promising future” plea was invoked:

At this juncture, it is apposite to note that promising future pleas are sometimes advanced alongside other mitigating factors and may work in tandem to produce the observed effect (viz. more lenient sentences). Therefore, this analysis does not purport to be an empirical inquiry into how such pleas quantitatively affects courts’ sentencing decisions; it is instead merely illustrative of what a “promising future” broadly entails in the eyes of the law, as evinced by case law. It is also important to note that promising future pleas seem to fail more often than they succeed, though their efficacy is invariably linked to the severity and nature of the offence committed.

Across all cases, it appears that courts perceive a defendant’s academic performance to be indicative of his or her “promising future” (or lack thereof). Such accused are often in the course of furthering their tertiary studies and have attained sufficiently good results. For example, particular attention was accorded to the defendant’s “excellent academic and extra-curricular record” in Tok Kok How, the “good grades” that the defendant was projected to achieve upon graduation in Chong Pui San, and the scholar status of the defendant in Nickson Guay Seng Tiong.

Most recently and controversially, the Magistrates’ Court in Terence Siow Kai Yuan seemingly accepted the defendant’s submission that, inter alia, his “[g]ood academic performance in school highlights his potential to excel in life” (though the High Court subsequently rejected this contention). This may suggest a conflation of past and projected academic performance with the degree of promise in one’s future; which is further buttressed by the holding in Anas bin Abdul Hamid and Teng Zhi Xiang, the only two cases where promising future was not found. In Anas bin Abdul Hamid, the promising future plea was rejected as the accused was “not a student with an excellent academic record”. He had only studied up until Secondary 2 and was working as a “cleaner” at the time of the offence. In Teng Zhi Xiang, the accused had only enrolled as a student in the Orchard School of Arts & Commerce recently, and did not possess “an exceptionally good academic record that warranted the court to exercise its discretion to call for a pre-sentence report”.

Courts have also placed some emphasis on the defendant’s chosen course of studies and desired career. They noted that the defendants in Lim Pei Ni Charissa and Lai Jenn Wuu were respectively pursuing courses in “Law and the Arts” and “Medicine”, and that the defendant in Nickson Guay Seng Tiong was an “entrepreneur” and “scholarship holder”. Contrasted to their remarks about the defendant in Anas bin Abdul Hamid, this may be suggestive of an elitist or technocratic approach towards the finding of a “promising future”.

However, this assertion should retrospectively be repudiated, as the promising future plea was recognised for most defendants (though it was still pleaded with varying degrees of success) who were enrolled in a rather diverse range of courses and institutions. Amongst these were the National University of Singapore, LASALLE College of the Arts, the Singapore Institute of Commerce, the University of Western Australia and “a university in the People’s Republic of China”. Therefore, it would be erroneous to accuse courts of only finding “promising futures” for certain defendants pursuing certain academic courses at certain tertiary institutions – as netizens have been wont to do as of late – as the case law simply does not support such a claim.

Worryingly, there may be an even more fundamental and insidious assumption at play here. Though the court in Tok Kok How did allude to defendant’s non-academic record by way of his extracurriculars and distinction in National Service, it is indisputable that, at least up until the High Court’s judgement in Terence Siow Kai Yuan, it is generally academic performance that occupies the forefront of the court’s mind when they are tasked with ascertaining if a “promising future” exists. This dangerously conflates one’s academic potential with the potential in their character, with the latter forming the “true” and more appropriate justification for a lightened sentence. While intelligence, education level and academic performance may serve as rough proxies for gauging “promise” and potential, it is fallacious to regard these factors as indicative of an offender’s remorse, propensity for reform, and/or deservingness of a lighter sentence. The correlation between one’s academic ability and “promising future” (or lack thereof) is tenuous at best.

Recent controversy

As previously alluded to, there has been a great deal of controversy and frustration with regard to the pleading of “promising future”. The recent cases of Yin Zi Qin and Terence Siow Kai Yuan Siow speak volumes about the general public sentiment that guilty parties invoking this defense have allegedly escaped with a slap of the wrist. For example, at least 133000 people endorsed a petition denying favourable sentences for “educated” sex offenders while 21000 people endorsed a petition requesting for Yin Zi Qin to receive a harsher punishment. For Terence Siow Kai Yuan, the Law Minister himself expressed his surprise at the light sentence imposed by the District Court judge. Even the PAP Women’s Wing, part of the ruling party that has been known not to comment on rulings in court cases, disseminated a statement stating that they were “dismayed” by the light sentence given to Yin Zi Qin.

In a time where perpetrators of sexual crimes are increasingly and rightfully being held accountable, spurred by the #MeToo movement that brought sexual harassment and assault crimes to the fore, it is unsurprising that there is growing discontent that the “promising future” mitigation plea seemingly allows offenders to evade liability. However, our analysis seeks to dispel some of these misconceptions.

Firstly, it is undeniable that the first-instance sentences of both cases (probation and community service for Siow who had outraged a victim’s modesty, and detention and community service for Yin who had voluntarily caused hurt by strangling a victim) were manifestly inadequate. Upon appeal, the High Court judges had conceded as much, prompting a revision in sentencing. The true issue is whether having a “promising future” or good academic performance (as courts ostensibly treat the two as interchangeable) had caused or influenced the respective Magistrates’ Court and District Court judges to pass excessively lenient sentences – this would be problematic as it suggest that victims would receive different forms/amounts of justice depending on how academically-inclined their perpetrators are. However, there is no conclusive evidence to suggest this has happened.

When heard before the Magistrates’ Court, the judge did equate Siow’s strong academic record with his “potential to excel” and propensity to reform. However, she also outlined the following factors that warranted rehabilitative sentencing for Siow:

The positive reports from his school and NS supervisors demonstrated that he could behave with proper guidance
The offence was ad-hoc in nature
He was impaired when he committed the offence
He pled guilty at earliest time and was cooperative during investigations
He showed remorsefulness
He was aware that he had a problem, and demonstrated a desire and willingness to change

This suggests that even though judges do assess the degree of promise or potential in one’s future by their academic performance, they also consider many other mitigating factors (albeit not under the term “promising future”). It is unlikely that any single factor is determinative of the eventual sentence. Therefore, it would not be entirely accurate to attribute Siow’s relatively lenient first-instance sentence solely to his academic record or “promising future” mitigating factor – it is more probably that the judge took all the relevant factors into account and exercised her discretion to arrive at the final sentence.

Upon appeal, Terence Siow Kai Yuan Siow was heard before the High Court, where Menon CJ directly addressed the controversy regarding the “promising future” plea. He highlighted Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300 where Steven Chong JA opined:

[T]he quest for academic qualifications is merely one indicator of rehabilitative capacity. Although it usually helps that young offenders are good students as it stands them in better stead and fortifies their chances of reform… the issue is not ultimately whether the offender is academically promising. Rather, the relevant question is whether he has demonstrated a positive desire to change and whether there were conditions in his life that were conducive to helping him turn over a new leaf. In this regard…, scholastic mediocrity or the fact that the offender is no longer in school should not be reasons by themselves to conclude that the offender is incapable of rehabilitation. Other avenues, such as vocational training or employment, would also be pertinent in assessing the offender’s prospect for reform.

Here, Menon CJ is ostensibly cautioning judges against placing excessive emphasis on the mitigating nature of good academics. To reconcile the different approaches that he acknowledged that different judges were utilizing, Menon CJ outlined a new multifactorial approach to determine the rehabilitative prospects of an individual that encompasses the previously used approaches. Under his three-limbed framework, courts should sequentially determine whether (1) the offender has demonstrated a positive desire to change, (2) there are conditions aiding the offender to turn over a new leaf and (3) there are risk factors that warrant the court to not find a high propensity for reform. Therefore, an offender’s scholastic evidence would be “irrelevant, unless a link can be drawn between the offender’s scholastic excellence and the offender’s rehabilitative capacity”.

Applying this framework to Terence Siow Kai Yuan Siow, Menon CJ considered, inter alia, whether Siow was truly remorseful, whether he had undertaken measures to curb his pornography consumption, and whether he would receive adequate familial support. He did not consider or mention Siow’s academic record.

On re-examination, while public perception often elevates “promising future” to be the dispositive and make-or-break factor in lenient sentencing, the first instance judge’s consideration of other mitigating factors and Menon CJ’s proposed multifactorial approach in Terence Siow Kai Yuan Siow both tacitly acknowledge that academic results are not the sole consideration in assessing whether rehabilitation is an appropriate sentence for an offender. The public outrage that sexual offenders escape with a slap on the wrist as a result of having good grades and a “promising future” may have been overblown.

Issues

As suggested previously, the High Court’s holding in Terence Siow Kai Yuan Siow may redirect and reorientate lower courts to more holistically assess whether a defendant truly possesses a “promising future” as opposed to a mere “promising academic future”. Nevertheless, the method adopted by Menon CJ also raises further questions:

Should “promising future”/good academics be a risk factor and not a mitigating factor?

Menon CJ viewed strong academics as an irrelevant consideration unless they evince an offender’s rehabilitative capacity. However, could there be instances where strong academics point against one’s propensity to reform, or constitute aggravating or risk factors instead? In foreign jurisdictions such as several US states, offenders’ high intelligence levels are often looked upon neutrally or even unfavourably as they arguably increase an offender’s moral blameworthiness. For example, the Supreme Court of Arizona in State v. Henry, 944 P.2d 57 (Ariz. 1997) saw “no reason to reward an individual who uses his education and intelligence in duplicitous ways.”

Should sexual offences fall under the ambit of offences where rehabilitation should be considered as a sentencing principle?

There have been calls to completely disallow rehabilitative sentences for offences of a sexual nature. However, this is extremely unlikely as courts have long abstained from imposing blanket rules on any kind of offence. This is because the facts surrounding each offence differs from another with regards to their nature, surrounding circumstances or antecedent events. When determining whether rehabilitation is suitable for a particular offender, courts assess offender-specific factors as well as offence-specific factors, including the mens rea, actus reus and general egregiousness of the offence; some offenders may have simply been less culpable and blameworthy so as to warrant a rehabilitative sentence. Therefore, courts will definitively retain rehabilitation as a possible sentence for sexual offenders as judges’ powers of discretion enable them to match the severity of the sentence to that of the offence.

The way forward

In conclusion, it is likely that an offender’s “promising future” or strong academics will play a far less significant role in future sentencing decisions, which may, in turn, reduce the chances of sentences passed being inadequate. However, in the learned words of the former CJ Chan, “sentencing is not an exact science, and is essentially a matter of discretion and judgment call”. There will inevitably be sentences perceived to be overly lenient, and sentences perceived to be overly punitive.

As civilians, how should we best respond to perceived injustice when it arises? In light of recent events, there is a need to stress that internet vigilantism such as doxxing and harassment often lead to counterproductive outcomes. Instead, more effective methods of response may include personally reading the judgements of allegedly unjust cases to glean a better understanding of the judicial reasoning behind the sentence passed, engaging in reasonable and responsible modes of civic participation such as writing in to MPs and the Straits Times forum, as well as holding constructive discussions with those around us.

Benjamin Goh and 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.

Catfishing and Online Love Scams

By cjc-admin on

September 19, 2020

- CLD Criminal Law Basics, OTG

You’ve seen the police crime alert signboards everywhere – “WeChat sex scam”, “Credit-for-sex scams” and the likes. You’ve seen advertisements at the bus stops warning us of the dangers of online love scams. In its 2017 crime brief, the Singapore Police Force (SPF) noted that internet love scams had increased by 30 percent from the year before. Just how do these scams work and why are they on the rise?

Catfishing – the secret ingredient to online love scams

A term that has such ubiquitous use in the modern world, the word was officially added into the Oxford English dictionary in 2014. Catfishing is defined as the adoption of a fake online persona to lure someone into a relationship. They may use a fictional name or take on the identities of real people, including stealing their photos. These scammers then express strong emotions for their victim within a short time frame and suggest that they move the relationship forward through text messaging or social media. They go to great lengths to gain their victim’s interest and trust, lavishing their victim with compliments, sharing their own “personal information” and even sending gifts. What feels like the romance of a lifetime can simply be built over a few months. After gaining their victim’s trust, they start to ask for money, gifts or banking and credit card details. They may even request for intimate pictures or videos to be used as blackmail.

As society gets lonelier, the love scams start coming and they don’t stop coming

It appears that millennials and boomers alike are both facing increasing rates of loneliness. A recent survey by YouGov showed that millennials were the most likely age cohort to “often” or “always” feel lonely. Some speculate that the advent of social media has led millennials to become more isolated and depressed despite being connected all the time while social psychologist Daniel Perlman posited that young adults were most likely to feel the most lonely regardless of generation. Coupled with the rise of online dating, it would definitely be easier to get caught up in a love scam as a young adult. It’s not all rainbows and sunshine for our elderly either. With an ageing population, more elderly are living alone and predisposed to feeling isolated and lonely. Singapore’s Department of Statistics estimates that the number of elderly persons living alone will almost double by 2030 compared to 2016. As a generation that is generally not tech-savvy, it is easy to imagine that they are quite unaware of the dangers of love scams. Thus, in an unfortunate double whammy, love scammers have taken advantage of our lonelier society for their own nefarious purposes.

How is the government helping?

Love scams are no trivial matter. In 2017, victims were duped of a record $37 million, with one victim forking out almost $6 million alone. More orthodox scams such as bank scams coming in at a loss of $1.6 millionpale in comparison to the effect that internet love scams have in our society. Not only do victims lose huge sums of money, the reprehensible nature of preying on the emotional vulnerability of its victims make it all the more crucial to curb such scams. In 2016, the police affirmed its commitment to intensify public education raising awareness of online scammers.

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.

A Culture of Respect and Consent?

By cjc-admin on

August 20, 2020

- CLD Interest Pieces, OTG

444. This is not just a number; it represents the countless victims of an outrage of modesty in Singapore. Despite the epidemic of digital voyeurism being less severe in Singapore compared to other countries like South Korea, it is not an issue that should remain silent. It was evident from the Monica Baey fiasco that low crime does not mean no crime. As such, today’s article will try to explain what happened from the perspective of the victim and the perpetrator, ending off with an evaluation on the existing measures implemented by NUS to deter such crimes.

Hearing from the victim

After the voyeurism incident, Ms Monica Baey revealed that “the paranoia never goes away”. Her testimony shed light on the rising trend of sexual crimes in Singapore and highlighted the need to stand up for all victims to ensure their voices are heard. In her unfortunate encounter, a peeping tom was caught filming while she was taking a shower in Eusoff Hall. Sexual crimes that do not have a physical element are no less valid; the nagging feeling that develops at the back of a victim’s mind as a result and never being able to feel safe.

To address this situation, NUS’s first actions were to issue the perpetrator the following penalties: a compulsory apology letter to the victim; mandatory counselling; a ban from NUS dormitories and a one-semester suspension. As a victim, Monica was appalled that the perpetrator was essentially able to get away scot free, with no serious repercussions whatsoever. The perpetrator’s suspension even allowed him to get a part-time job. The victim’s mother further commented on the inadequacy of the punishments meted out by NUS and how their response towards such sexual harassment would not help to protect female students. Furthermore, Monica also felt that the apology letter from the perpetrator and the official statement from the university were vague and insincere. As such, Monica felt compelled to publish details of the incident online – in hopes of improving the way NUS handled cases of sexual misconduct.

Perspectives from the perpetrator

The perpetrator is none under than Mr Nicholas Lim Jun Kai, a chemical engineering student at NUS. Throughout the entire ordeal, Nicholas had to deal with the death of his grandmother, along with the hurt he had caused to his parents. Reflecting on the events that had transpired, Nicholas expressed his remorse on the whole incident through an exclusive interview by The Straits Times and admitted that there was no excuse for his heinous acts. He expressed that “nobody should ever be put through the kind of trauma [he] caused Monica” and resolved to be a better person.

However, while Monica’s Instagram stories gave greater clarity to the situation, the public started to use pieces of information from her stories to dox Nicholas. A term that has come into relative popularity in recent years, doxing is an internet-based practice of publicly identifying or publishing private information about someone as a form of punishment. As such, some felt that while Monica’s intentions were in the right place, a more palatable outcome could have been achieved by not revealing her perpetrator’s name or personal details as the cyberbullying from netizens that ensued were taking it a step too far.

Aftermath

Due to significant backlash, NUS decided to take a tougher stand against such issues. The Minister of Education at the time, Mr Ong Ye Kung, further added that the “two strikes and you are out” framework should not be the standard application. NUS convened a committee to review its current disciplinary and support frameworks relating to sexual misconduct. In the newly implemented framework for serious offences, offenders will get a one-year minimum suspension, which the university’s Board of Discipline cannot override or remove while severe cases will call for expulsion.

To increase security and deterrence on campus, the NUS review committee laid out the sanctions framework to ensure such offences would be dealt with consistently and proportionately to the harm done. In this new framework, the provost would decide whether the allegation should be handled by the disciplinary boards or the relevant academic heads. Examples of severe or aggravated sexual misconduct were also outlined by the review committee, like “touching a victim’s private parts or sexual organs” or “deliberately incapacitating a person or abusing [one’s] authority to commit sexual misconduct”. The committee also declared that serious sexual offences included: “taking photographs or videos of an individual in a bathroom, toilet or any space where he or she can reasonably expect privacy”, “taking upskirt photographs or videos, voyeurism, indecent exposure” and “inappropriate physical contact with a person in a sexual manner without the person’s consent”.

The stiffer penalties from NUS are certainly welcome from the retributive aspect of crime and its punishment. However, there appears to be two problems with how much of a deterrent harsher punishment are. First, it remains to be seen how closely the university will stick to their updated framework. Second, some perpetrators of sexual crimes may not think of the costs and benefits of their actions. In a more recent case, an NUS student from the Dentistry faculty was the subject of disciplinary proceedings when he strangled his former girlfriend after she decided to end the relationship. As per the first concern, it remains to be seen if the student will face expulsion after investigations in the face of two petitions calling for harsher punishments yet again. Moreover, one is doubtful that the stiffer penalties imposed by NUS would have deterred the student from committing this crime.

Nonetheless, NUS has done a commendable job of putting forth education resources and devising a new compulsory module on sexual harassment that all current NUS students are required to. This is in line with the university’s goal of building a safe campus to enhance student life. It has allowed for students to remain updated on the harsher sanctions and grave repercussions of sexual crimes.

Towards a better future

With these new frameworks put into place, its effectiveness can only be proven with time. We are optimistic and confident that NUS will be able to tackle the challenges ahead, with a safer campus for all being the fruit of its labour.

Scott Yap and Johanna Lim

*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.

Life in the Shoes of a Defence Lawyer: An Interview with Ms Diana Ngiam

By cjc-admin on

August 6, 2020

- CLD Interest Pieces, OTG

Ms Diana Ngiam. Photo credit: Quahe Woo & Palmer LLC

Many law students cite criminal law as the area that inspired them to study law in university, probably due to dramatized courtroom scenes portrayed on TV. While criminal law in real life may not be as exciting as on TV, we still wanted to find out more about this aspect of law. Lucky for us, we had the privilege of interviewing Ms Diana Ngiam about her life as an experienced criminal defence practitioner!

Upon making ourselves comfortable, we began the interview with the usual question that all Year 1s are asked when they are admitted into law school.

Why Law?

“Frankly, I chose to read law because I got interested in courtroom dramas, watching The Practice.” Of course, Ms Ngiam qualified this with the obligatory ‘practice-is-different-in-real-life’, but it was still interesting to know that a prominent member of the criminal law sphere could have been inspired by television programs just like many of us.

Ms Ngiam also added that another source of inspiration was high-profile criminal cases in the newspapers that really piqued her interest in the field.

Internship with Subhas Anandan

Given her firm interest in criminal law, Ms Ngiam interned with the late Subhas Anandan after her first year in law school. Mr Subhas Anandan was a founding member of the Association of Criminal Lawyers of Singapore, and was one of the trailblazers in the field of criminal law in Singapore.

We asked Ms Ngiam for 3 words that she would use to describe her internship under Mr Anandan, to which she replied, “stressful but exciting”. She encountered many high-profile cases for which the stakes were often very high for both parties, which made the experience exhilarating and scary in equal measure.

The internship left Ms Ngiam with a lasting impression of what makes a strong criminal lawyer. As she noted, he was a persuasive speaker who had a commanding presence and “an amazing memory” – while at trial in court, he would not have to pen anything down, and could remember the finest details of the evidence presented in court. He was also an extremely sharp thinker, and gave Ms Ngiam a masterclass in cross-examination on multiple occasions.

Apart from witnessing Mr Anandan’s great work ethic, she was also privy to another side of him– he was kind, soft-hearted and even “childlike” at some points. She fondly recounted how Mr Anandan enjoyed eating snacks, and how despite having certain dietary restrictions, would snack on a few peanuts or potato chips whenever he caught his colleagues snacking in the office.

It was this memorable stint with Mr Anandan that helped Ms Ngiam decide that she would like to pursue criminal law.

A career as a criminal lawyer

Ms Ngiam’s steely and determined appearance belies the fact that she has had her fair share of challenges in practice. When asked about the most impactful case that she has worked on, she cited the case in which she appeared before the court as first chair, for the first time. This was the case of Public Prosecutor v BDB [2018] 1 SLR 127; [2017] SGCA 69, a case where a mother was convicted of voluntarily causing grievous hurt to her son, leading to his death.

When asked about why it was so impactful, she said: “I was expecting to lose, but I was not expecting to lose that badly,”. She then revealed that the loss hit her especially hard because she felt like she was personally responsible for it happening. But Ms Ngiam was quick to provide a quote-worthy comeback: “But I think things like that are good because you should never, ever stop questioning yourself; because when you do, I think you will realise that you are becoming too complacent.”

On the topic of how rarely criminal defence lawyers manage to secure a win, Ms Ngiam was upfront about the reality of the current situation. She admitted that the prosecution and defence are not operating on a level playing field, and stated that the odds are “usually stacked against” criminal lawyers. There is often an imbalance of information between the parties involved, with the prosecution having access to “all the resources”. Accused persons might also not have the resources to hire independent investigators to conduct investigations, and given the degree to which the final verdict rests on the results of such investigations, it would be greatly disadvantageous to the accused if these investigations have an unintentional bias towards the prosecution. Ms Ngiam believes that the easiest way to correct this problem would be to allow the accused to gain access to counsel at the earliest stage of investigations, before any interview is conducted by the police, so as to protect their interests.

Given the seemingly advantageous position of the prosecution in criminal cases, a question that arose was: why defence instead of prosecution? While Ms Ngiam admitted that she has “toyed with the idea” of joining the AGC, she reflected with levity that she simply could not see herself practising on “the dark side”. She sees more value in helping and being the voice for the “underdog”.

After this, we moved on to discuss some controversial topics.

On Euthanasia

We began by asking about her views towards euthanasia, to which she replied “I don’t know man.”

After probing her further, she said: “I don’t think Singapore, as a society, is ready to accept euthanasia, although it is something I think we should not rule out because I see the point in allowing it, but of course under very strict circumstances.” She continued, “You are basically allowing people to fly to Switzerland to die, and if this happens more and more, you can’t simply pretend that this isn’t happening in reality.”

We generally agree with Ms Ngiam, especially considering the fact that healthcare in Singapore is expensive to the point that many Singaporeans joke about preferring death over facing hospital bills. Perhaps it is time that we confront legislating euthanasia as a society, rather than leaving it as an elephant in the room.

On Drugs

Singapore has very draconian drug laws, with our Minister for Law, Mr K. Shanmugam, once famously saying: “We want a drug-free society. Not a drug tolerant one.”

Ms Ngiam was candid in her views that the death penalty for drug-related offences was not working in Singapore. Elaborating on her statement, she said: “Once a person is dead, you can’t undo that. But with life imprisonment you can and I think people make mistakes so… To me it is a very scary thing, to decide that a person should just die.”

Given her anti-death penalty position for drug traffickers, we pressed her to suggest reforms she would like to see in drug laws.

With regard to drug abusers, Ms Diana said: “I don’t think prison is the most effective tool of drug abusers because I think imprisonment (1) makes them [interact] more with people of the same kind, (2) takes them out of society for some time, and they will face problems of reintegration into society.” Leaving no room for doubt about her feelings, she emphatically stated that “prison is a clumsy tool” and that “we should put more money into drug [rehabilitation]”. She also suggested that more effort could be put into researching on how we could rehabilitate drug abusers so that we can prevent them from “going in and out [of jail]”.

In the writer’s humble opinion, it is clear that our drug laws often catch traffickers who are simply low-level operators at the bottom of the drug syndicate. These traffickers are often Malaysians, who are out to make a quick buck, and who often do not know the laws of Singapore (although a separate argument could be made that ignorance of the law is no excuse). Indeed, our drug laws have undergone considerable changes, with the new section 33B of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed Sing) allowing the court to exercise its discretion not to award the death penalty where the drug trafficker has substantially assisted the Central Narcotics Bureau (CNB) in disrupting drug trafficking activities. These are early days, but certainly steps in the right direction to temper the harshness of our drug laws.

When asked about whether we should legalise the usage of drugs, Ms Ngiam said: “I don’t think we should legalise drugs. We are already facing so much problem with smoking … and I don’t see the benefit of drugs at all … So, no, I don’t think we should legalise drugs.” For what it is worth, we humbly agree with Ms Ngiam’s opinions.

The future

We asked Ms Ngiam about what she envisions herself doing in a decade’s time and she frankly admitted that she has never been one to make long-term plans. Nonetheless, she does hope that her future self will still be practising criminal law. As much as she acknowledges that her line of work can get tiring and disappointing, she ultimately still enjoys what she is doing, and the rare wins in court continue to be a motivating force for her.

Advice for budding lawyers

Ms Ngiam started off by saying that young lawyers need to have common sense, tenacity and “some fire [in them]”, as these traits are what enables lawyers to go far in criminal practice. “I need to see the ability to show aggression when the situation requires in the courtroom when you communicate with the other party, the prosecution,” she added.

Lawyers who desire to practice criminal law must also “like it”, and have to be aware that they will eventually experience a trade-off in their remuneration. Speaking from personal experience, she admitted that the difference in remuneration will become more apparent as one rises up in the ranks, by virtue of criminal lawyers “not bringing in as much money” to firms as other fields of law.

For lawyers who can accept the reality of the pay cut in criminal law, Ms Ngiam can assure them that there will be a welcoming community of mentors who are “happy to help”. She believes that the Law Society of Singapore’s Criminal Legal Aid Scheme (CLAS) functions as an appropriate entry point into criminal law practice – it allows one to “get their hands dirty” with actual cases and to experience going to court, while the stakes are “not as high”. The mentorship programme in CLAS would allow junior lawyers to receive guidance while judging for themselves if criminal law is “what they want to do”. Ms Ngiam also mentioned, as an aside, that for lawyers who are unwilling to give up commercial practice, CLAS can be a platform for them to contribute in their own time.

As for law students who are still years away from practice, and whose immediate concerns would be geared more towards their academic work, Ms Ngiam had a short but important nugget of wisdom: have fun and don’t study so hard! Having accumulated years of experience under her belt, she lamented that, “once you start work, there really is no break”. Even when one takes a break from work, they will come back to “even more work”, and they might still be worrying about their cases even when on holiday.

Ms Ngiam also noted the trend of students increasingly “piling on” internships, as she has seen more first-year and prospective law students in the pool of interns. While she does acknowledge the logic of seeking internships in order to better understand a firm’s culture and ‘fit’, she believes that students will ultimately have to contend with, and be comfortable with, a degree of uncertainty regarding their future. Even for her, she could not have known what criminal defence entailed when she first took the plunge into reading law in university.

Another piece of advice that Ms Ngiam wished to emphasise on was to make “genuine and good friends” in school. These friends from law school will function as a robust support system for students when they graduate and enter practice, and they can come in handy when one needs a work referral in future.

Work-Life Balance

As for maintaining a life outside of work, Ms Ngiam enjoys running, and takes advantage of her office location in Dhoby Ghaut to take a jog through the scenic central business district in the evenings to destress. Other joys in her life include eating good food, and unwinding at home with her six cavoodles.

Originally published on the previous CJC website on December 9 2019.

Clarine See and Toh Ding Jun

*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.

Into the Minds of Prosecutors

By cjc-admin on

August 6, 2020

- CLD Interest Pieces, OTG

When news broke that the couple who had caused the death of intellectually disabled Annie Ee faced charges of voluntarily grievous hurt with a dangerous weapon rather than murder or culpable homicide not amounting to murder, many netizens were unhappy. They took to social media to voice their displeasure with the prosecutors for proceeding with a less severe charge, with some even signing petitions on the matter.

The AGC later explained that the prosecutor’s duty was to prefer charges supported by evidence, and the evidence showed that while Annie Ee was beaten severely, she died of a fat embolism, which is something that would not normally result from her injuries. Because of these circumstances, the offences of murder and culpable homicide not amounting to murder could not be proved against them.

Incidents such as the above made us curious about what exactly prosecutors do, and about how they exercise their prosecutorial discretion. Lucky for us, we were given the rare opportunity to interview Chief Prosecutor Mr Kow Keng Siong and Deputy Public Prosecutor Mr Chin Jincheng to find out more!

The work of a prosecutor

Making charging and sentencing decisions

We started the interview by asking about how a prosecutor goes about the daunting task of making a charging decision, seeing as this can be a matter where reasonable people may hold different views. Mr Kow explained that a prosecutor assesses many factors, including whether there is sufficient evidence to make out an offence, whether it is in the public interest to prosecute, and what charge is to be preferred.

Prosecutors take their work very seriously, as the lives of victims, the accused and even witnesses can be forever changed by their decisions. Because of this, much of their time and effort is spent on scrutinising the evidence and directing further investigations if needed when deciding whether there is a public interest to prosecute.

When deciding whether to prosecute, prosecutors will consider, for example: Will prosecution deter the offender and other like-minded people? Will it prevent further crimes? Will the likely punishment be proportionate? Can prosecution help to rehabilitate the accused?

While we understood the idea of prosecuting for retribution, crime prevention and deterrence, we found the idea of prosecuting someone to ensure rehabilitation to be somewhat unusual. When asked about this, Mr Kow explained that on the occasions when an offender is prosecuted for the purpose of rehabilitation, it is intended to address the offender’s root cause of crime. For example, prosecuting a young offender (or an at-risk delinquent) so that he may be steered away from crime through probation or reformative training. Similarly, mentally disabled offenders may sometimes be prosecuted so that they may be subjected to a mandatory treatment order in order to treat their mental condition where this is the root cause of the crime.

This was interesting to us, as you would assume that it would be the defence counsel who suggests rehabilitative sentencing options for youth or mentally disordered offenders. It turns out that being a prosecutor is so much more than pushing for the highest possible sentences – it involves not only the consideration of the victim’s interests, but of the offender’s and community’s interests as well.

Given the huge weight that rests on a prosecutor’s shoulders when having to make difficult charging decisions, we were curious about the decision-making process. As it turns out, the AGC has a very strong culture of encouraging its officers to speak up and appreciating different viewpoints. Mr Kow and Mr Chin shared that prosecutors often engage in robust and candid discussions, and the views of each prosecutor, no matter how junior, are valued. Decisions are made only after all views have been properly ventilated and critically considered. Mr Kow believes that it is this willingness to consider and rationalise the diversity of views that makes good decisions.

As most law students would know, the hierarchy of power at a workplace is sometimes so deeply entrenched that junior associates, let alone interns, do not dare to voice their opinions. So, it was reassuring to hear that at the AGC, not only do juniors get a chance to speak up, their opinions matter. Believe us when we say that prosecutors really are interested in what others have to say – after about an hour of speaking to Mr Kow and Mr Chin, Mr Kow actually got us to share about our schooling experiences (I tried but failed to put a positive spin on company law – my apologies to all our company profs).

Going to court

Another important and more visible part of a prosecutor’s work is to conduct a prosecution or argue an appeal in court. While litigation work is stressful, Mr Kow shared that AGC has a nurturing and sharing environment where colleagues do not hesitate to help one another. Colleagues often give advice on legal or practical points, share case authorities, provide comments on draft submissions, act as a goal-keeper for junior colleagues’ cases, and even take over others’ cases when necessary.

As students, we all know about the woes of mooting and how litigation is kind of a more intense and scary version of mooting, with much higher stakes. Having to litigate without a support system would be immensely intimidating to a young lawyer- but at the AGC, you would not have to worry about this due to the open and welcoming network available to you.

Policy work and other initiatives

Another part of a prosecutor’s work which is less visible is working on initiatives with government ministries and law enforcement agencies to improve the administration of criminal justice system in general, and to improve the effectiveness and efficiency of AGC’s Crime Division in particular. Such work typically entails working with stakeholders to ensure that the criminal justice system remains fair and transparent.

Policy work is something we don’t hear a lot about when we talk about prosecutors, so it was great to learn about how prosecutors actually play a role in developing the governmental policies that govern us.

On public opinion

Often times, when a particularly controversial case surfaces, public opinion that arises as a result can be divisive and harsh.

We asked Mr Kow about his views of the public expressing their views on controversial cases, such as the Annie Ee case.

Given the nature of the cases, Mr Kow said that it is only normal for the public to hold views about the cases. In fact, Mr Kow would find it odd if an individual does not have a view. That said, he advised that before expressing an opinion, especially in forceful terms, an individual should take every effort to fully understand the facts and issues behind the case – and not pass quick judgement or make speculations simply based on e.g. a headline or an article that does not contain the full background. Expressing an opinion based on preconceived notions and conjecture, instead of facts, is not only unfair to the party being criticised and unhelpful for an informed discussion on the issues at hand, but can also be divisive and dangerous.

In this context, Mr Kow shared that an old Canadian TV series (which he enjoyed a lot) that illustrates his point about the dangers of forming impressionistic opinions is ‘Flashpoint’. He explained that an episode in that series would typically open with a tense hostage situation which portrayed the hostage taker as a villain. The episode would thereafter “rewind” back to several hours before the opening scene, and reframe the hostage taker as another ordinary human being, and the events and issues that put him into the hostage situation.

We found Mr Kow’s illustration to be a great way to drive home the adage that we should not judge a book by its cover, and that it is important for us to suspend judgment about decisions made by the AGC/the court until more information is available. (We also found that Flashpoint has pretty good ratings, so…check it out, because I’m sure Mr Kow recommends it!)

Advice to law students

Before ending the interview, we asked Mr Kow if he had any advice to us law students. His advice is as such:

Be purposeful – Know why you are studying law
Be aware – The practice of law is not going to be easy, but it can be deeply fulfilling
Be discerning – Find a workplace where you like and can identify with its culture

On the last point, both Mr Kow and Mr Chin shared that they enjoyed working at AGC tremendously – to be in the company of passionate people who make daily personal and family sacrifices so that others may find and receive justice, and in the process, help advance the law.

If you have a keen interest in criminal law and you would like to further the interests of justice, you should seriously consider an internship at the AGC. According to Ashna (co-writer of this article), her AGC internship under the Junior College Law Programme was an eye-opening experience which made her choose to study law in the first place.

You can also sign up for the NUS Law School elective module “Advanced Criminal Legal Process” which Mr Kow co-teaches. The module offers students a unique perspective into real-world criminal litigation processes through the lenses of a broad spectrum of stakeholders, including judges, prosecutors, law enforcers, and legal practitioners.

We hope that this article gives you sufficient insight into the mind of a prosecutor. Who knows, maybe the life of a prosecutor could eventually suit you too one day!

Originally published on the previous CJC website on October 26 2019.

Ashna Khatri and Alvina Logan

Interview with CLAS Interns!

By cjc-admin on

August 6, 2020

- CLD Interest Pieces, OTG

Our three lovely interns (from left to right): Hui Wen, Jun An, Sarhan

Feeling in the dark about the CLAS internships? Want to know more?

We gathered three Year 2 students, Hui Wen, Jun An, and Sarhan, who went through the summer CLAS internship, to shed some light on the experience.

Could you briefly tell us about what you did and how the experience was like?

Jun An: I worked on sentencing precedents and memo preparations during the internship. It was an eye-opening experience as I got to see the practical aspects of criminal law in contrast to only learning the theory in the classroom. I learnt what the appropriate sentences were for a particular offence and I feel that this was the biggest takeaway.

Sarhan: I was given a lot of research work but I also had the opportunity to do some legal drafting such as letter of representations (reps) and mitigation pleas. Naturally, the quality of my work may not have been as good as that of a lawyer’s which was why my mentor assisted me in vetting my work and gave me tips on how I could make better reps and mitigation pleas. The scope of my research work covered a wide variety of topics, from commonly seen drug offences to property offences as well.

The three of us collaborated at certain times. Jun An and I actually sat at the same court hearing together while Hui Wen and I did a massive research project together.

Hui Wen: That was really the highlight of the internship (everybody laughs).

Sarhan: (continued) I have always wanted to do criminal defence and the thing about criminal defence is that sometimes your client may do things that you have a personal issue with. But, it is important that you still do your best in defending them. I think one thing everyone should learn is being able to separate your feelings from work. I felt that the experience has allowed me to do better in this aspect as well.

Hui Wen: It was the same for me, in that I had to do a lot of research work but I didn’t do much drafting such as writing memorandums. What I did get was more on the ground experience. I actually had to go to court on the first day of my internship which lasted for the first week of the three-week internship. I also got to go to Changi Prison for the first time for a client interview. The experience helped me understand the practice of criminal law outside of theory as Jun An mentioned. It is not until you go for an internship like CLAS that you really see how you can impact other people.

Can you tell us a little about the cases you worked on, and what you learnt through your research and through going to Court?

Hui Wen: Sarhan and I were working on a really big case on rape and robbery that involved a lot of reading and research, especially about sentencing. It was important that we separated our emotions from the acts of our client. This isn’t always easy to do and it’s one of the reasons I feel that people are turned away from criminal law. But it’s something that we have to understand about being a criminal lawyer.

Sarhan: I did a few miscellaneous cases but the main cases were regarding drug offences, property offences and violence. When you meet your clients, you listen to their stories and it’s sometimes tragic to hear why they committed those offences. I felt that it humbled me to know that there are people going through so much and it made me feel blessed to be in the position that I’m in, which is why I had to at least try to help these people.

Jun An: Unlike Sarhan and Hui Wen, I did not get to handle such high profile cases. The most interesting case I handled was probably a cheating offence. I had cases from many clients of different characters, I learnt their stories and got to understand what their families were going through. The internship went beyond criminal law, it was about interpersonal relations as well. Learning how to communicate with the client, their families and reassuring them without guaranteeing them anything was a skill that was important.

What was your perception of criminal law before CLAS and how did it change?

Hui Wen: During one of our lunches with the lawyers I was asked if I wanted to do criminal law and the answer I gave was a resounding no. However, if you were to ask me now, I would say that it is a serious consideration. I really think it is meaningful work and very important for more lawyers to go into the criminal sector. Unfortunately, criminal law is admittedly emotionally taxing. There is a courtroom in the State Courts called Courtroom 26 where I saw loads of prisoners being sentenced at once. They barely had any contact with anyone and were speaking to the judge unrepresented with no idea of what defences they could raise, what a mitigation plea was and what they had to say to the judge. That is, for me, one aspect of criminal law that I would still need to overcome.

Jun An: Before CLAS, I did not realise how raw emotions could get and how emotionally intense the work was, as opposed to corporate law, which is basically a zero-sum game where the only thing at stake is whether a company gains or loses money. I don’t think I would be able to handle the emotions if I had to handle high profile cases. In the long run, it would definitely be tough for me.

Sarhan: It’s no secret that I’ve always wanted to do criminal law. I did criminal law for my polytechnic studies as well as during National Service in the Singapore Police Force. While I wasn’t unfamiliar with the practical aspects of criminal law, this internship helped me gain the perspective of a defence lawyer, as opposed to the perspective of someone from SPF. Elaborating on Jun An’s point, there isn’t a clear winner when it comes to criminal law. Someone committing a crime and getting a lower sentence than what the prosecution wanted doesn’t really indicate that anybody has won.

What was it like working with the CLAS lawyers?

Sarhan: I extended my internship by a week. All three of us interned together – I was the only one who extended, doing a 4-week internship while the rest did it for 3 weeks. My lawyer brought me out for lunch at the start and at the end of my internship. He spoke to me and gave me tips about life, how to be a lawyer: so sometimes, while we were sitting and waiting for the court proceedings to start, he would teach me about the structure and procedure of the proceedings, even highlighting certain parts about criminal law that I was not exposed to. Additionally, I want to stress that you will not be over-pressured by your mentors, but they do push you to do your best. I had a positive mentality to want to do things right, and put in my best effort into every case. Overall, I was very blessed to have my mentor and genuinely enjoyed the experience.

Hui Wen: For me, I had the pleasure of not only working with my mentor, but also, Shi Yang (Sarhan’s mentor). There was one day where I followed him to Court 26 and he was very meticulous in telling me who the relevant stakeholders were and explaining the relevant legal jargon and acronyms. It was a very good experience as I got the chance to work with the other CLAS lawyers – watching them in action in court or just following them to prison to interact with the clients. Since they know how to utilise their mentees, they do make sure you’re learn something from it.

Jun An: She (Marjorie) also brought me out to lunch on the second last day. During the lunch session, she shared with me about her life and advised me on how I can structure my law school studies to achieve what I want. It was helpful to me since it was general advice instead of just criminal law – I was quite grateful to have a mentor that was so willing to share. The mentors are understanding about your capabilities as a Y1 student so they do not just inundate you with work.

Were the responsibilities too heavy, just right or did you feel like you could have undertaken more?

Hui Wen: Some lawyers take on the mindset that if I don’t have work for you, then you (the intern) can just review projects, attend court hearings or go to the prison to interact with the clients. For me, I felt that I could have undertaken more work from home. I would love to have been more involved.

Jun An: Similar to Hui Wen’s experience, my mentor did not have much work to give so I could only do what was assigned to me – which was 4 to 5 pieces of work over a 3-week period. It was not so eventful for me at times but I did get my fair share of action.

Sarhan: I was given work daily. Unlike Hui Wen and Jun An, I stayed in the office from 9am – 5.30pm everyday. If you schedule your time properly, you will be able to manage internship work and your other commitments.

What was something you thought you could have done better? If so, how would you have done it?

Sarhan: The lawyers are definitely aware about the standard of our work as Y1 students. But I still wish that I could have improved the quality of my drafts so that the lawyers wouldn’t have to spend more time improving it. Plus, I wish that I had done my work more efficiently and effectively.

Hui Wen: Tying back to the previous question, I felt that I could have undertaken more responsibilities. But as Sarhan mentioned, the lawyers are definitely understanding of what a Y1 student can handle and made sure the work was not too much for us.

Jun An: I agree with Hui Wen in that I was not assigned that much work but Sarhan makes a good point about doing a proper job on the work that we were assigned so that the lawyers won’t have to spend too much time vetting our drafts.

How did you deal with unexpected circumstances during your internship?

Hui Wen: Be there for your trench mates and they will be there for you. It was really important that the 6 of us got to do research together.

Sarhan: Echoing Hui Wen, we were grateful for collaboration amongst ourselves as we could share the knowledge we had, and could help each other out. For example, when we were handling Trafficking cases, whenever someone had problems, we were ready to help – putting what we had read earlier to good use.

What advice do you have for future participants of CLAS (e.g. with regard to balancing your time, the right mindset to take, what they should prepare themselves for before the internship begins)?

Hui Wen: First off, it is important to appreciate your trench mates – I couldn’t have gone through the entire experience without them. The friends I made during this internship are the ones that formed my support network. Next, future participants should go in with open minds because this is definitely a very good experience for you to go through. Criminal law is not an area where you get to do a lot of internships and more often than not, you only get to learn from it through the textbook and readings in class. When you go for the internships, just be open to spending long hours doing work and research, to accepting everything that is thrown your way and to takeaway something valuable from the experience. Lastly, do not be afraid to ask seniors who have done the internship before for help or advice.

Sarhan: Adding on from what Hui Wen said, at the start, none of us were close to each other. But we bonded throughout the internship, to the extent that we still hang out with each other. One thing that is important for this internship is that you should never think that a client deserves punishment. You should go in with an open mind, regardless of your personal feelings or stance on the matter – refrain from judging the clients. Though I recognise that it is emotionally taxing when handling such cases, one piece of advice is to really care about your cases and your clients, regardless of the offence, and to go the extra mile to help them. For the Y1s going for the winter attachment, do read up on criminal law before the internship to get an idea of what it is about. During the internship, you will be expected to conduct research on issues not covered in the syllabus, so familiarise yourselves with the content and go in expecting to do work.

Jun An: You can ask seniors on what style your mentor prefers – for example, if they want their memo to be formatted a certain way. Additionally, you can also enquire about the temperament of your mentor as some do not like to be disturbed while working. So, as interns, you must wait for the right time to ask your questions.

Would you recommend this internship to your juniors? Why or why not?

Yes!

Hui Wen: CLAS is not the typical internship that you will do at a firm. Here, you really get to see the effect on people, and this is something you don’t get to see in law all the time.

Sarhan: If you have an interest in criminal law, then you should definitely try CLAS.

Jun An: CLAS really teaches you something outside the classroom, and broadens your perspectives. On a side note, it gives you pro bono hours!

[Disclaimer for Y1s: You will only be able to earn your mandatory 20 hours after you finish your pro bono module in Sem 2. So if you’re doing the Winter/Semester attachments, you’ll only be getting non-mandatory hours.]

If you liked what you read, do consider joining CLAS!

Originally published on the previous CJC website on October 8 2019.

Scott Yap and Johanna Lim

*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.