CLD Case Commentaries, OTG

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

December 16, 2020

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 offenders¹“Say NO to Favorable Sentences for “Educated” Sex Offenders”, change.org https://www.change.org/p/attorney-general-s-chambers-say-no-to-favorable-sentences-for-educated-sex-offenders while 21000 people endorsed a petition requesting for Yin Zi Qin to receive a harsher punishment²“We want a harsher sentence for NUS Student who strangled ex-girlfriend”, change.org, https://www.change.org/p/we-want-a-harsher-sentence-for-nus-student-who-strangled-ex-girlfriend. For Terence Siow Kai Yuan, the Law Minister himself expressed his surprise at the light sentence imposed by the District Court judge³“Shanmugam ‘surprised’ at verdict in the case of NUS student molester; AGC to appeal against sentence”, Channel News Asia, 27 September 2019, https://www.channelnewsasia.com/news/
singapore/nus-student-terence-siow-molest-case-shanmugam-surprised-agc-11948808. 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 Qin⁴Jean Iau, “PAP Women’s Wing and Aware express dismay over ‘disproportionate’ sentence”, The Straits Times, 22 July 2020, https://www.straitstimes.com/singapore/courts-crime/pap-womens-wing-and-aware-express-dismay-over-disproportionate-sentence.

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: 

1. The positive reports from his school and NS supervisors demonstrated that he could behave with proper guidance
2. The offence was ad-hoc in nature
3. He was impaired when he committed the offence
4. He pled guilty at earliest time and was cooperative during investigations
5. He showed remorsefulness
6. 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: 

1. 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.”

2. 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.