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A less adversarial system that advances public interest

Move towards such a criminal justice system welcome, with all parties helping to balance the scales of justice in the sentencing process

There is an oft-repeated adage about the roles played by the prosecutor, defence counsel and judge in the sentencing phase of a criminal case.

The prosecutor asks for a sentence on the higher side; the defence counsel asks for one on the lower side; and the judge gives a sentence in the middle.

Rare is the time that the prosecution and the defence see eye to eye on the "correct" sentence to be meted out.

After all, Singapore's criminal justice system, inherited from the English, is an adversarial one.

Such a system, a feature of most common law countries, such as England and the United States, is contrasted with the inquisitorial system used in many continental European countries under civil law, where the judge plays an active role in investigating a case.

But recent moves and remarks by top figures in the legal landscape here show that Singapore is moving towards a less adversarial system where all parties pursue a larger goal in advancing public interest through sentences that reflect the severity of the offences accurately.


In recent years, the role played by the prosecutor in the sentencing phase has come under the spotlight. The focus can be traced back to a landmark judgment in 2011, in which the Court of Appeal ruled that the prosecution had a duty to disclose to the court relevant material that is not favourable to its case.


In October 2014, Chief Justice Sundaresh Menon, speaking at the inaugural Sentencing Conference, said this duty would extend to the sentencing stage.

He said the prosecution acts only in the public interest - this distinguishes prosecutors from lawyers in private practice pursuing the interest of a client.

"On this basis, there would generally be no need for the prosecution to adopt a strictly adversarial position," said CJ Menon, who was the attorney-general between October 2010 and June 2012.

Mr Lucien Wong, who took the helm at the Attorney-General's Chambers (AGC) in January, said he believes in "even-handed justice".

In his speech last month at the Singapore Law Review Lecture, Mr Wong said: "In every case, we ask for what we consider to be a just sentence, taking into account all the relevant facts of the case and what the broader public interest requires.

"The prosecution is not in the business of submitting for the highest sentence possible."

He made it clear, however, that the prosecution will not hesitate to press for stiff sentences to emphasise society's disapprobation of certain conduct.

At the second Sentencing Conference, also held last month, Deputy Attorney-General Hri Kumar Nair echoed Mr Wong's views. He said: "While our criminal justice system may be adversarial, the offender is not our adversary. Our job is to ensure that the sentences ultimately meted out by the court are firm and fair, and that all offenders are appropriately punished."

However, he stressed that assisting the court in arriving at a "just sentence" also includes bringing to the court's attention crimes posing specific threats which require special attention.

Both Mr Wong and Mr Nair cited the case of Mr Lim Choon Teck as an instance of the prosecution's commitment to ensuring fair punishment. They were referring to the unprecedented move in September 2015, in which the prosecution appealed successfully to reduce an offender's sentence, on grounds that it was excessive.

It succeeded in persuading the High Court to cut the jail term imposed on Mr Lim - a cyclist who knocked down an elderly pedestrian - from eight weeks to three. Then Attorney-General V. K. Rajah said in a media statement that it was crucial for offenders to be appropriately punished - "neither in a manifestly inadequate nor in a manifestly excessive manner".


As a philosophy, it is hard for anyone - not least an accused person who does not have a lawyer - to argue against the idea of a prosecutor assisting the court in handing down a fair sentence.

Still, realistically speaking, the interpretation of what is an appropriate sentence can differ because of different perspectives, which is why we have judges as a impartial party to decide.

In a recent case of a businessman whose company illegally imported more than 29,000 rosewood logs from Madagascar, the prosecution sought at least 18 months in jail. The High Court imposed three months' jail.

The disparity may not necessarily mean that the court was too lenient or the prosecutor was too harsh; they may genuinely have different views on what is an appropriate sentence. And even with the duty of disclosure, each prosecutor may have a different idea of how far they are obliged to go.

In an interview with The Straits Times published after he left office, Mr Rajah revealed that some at the AGC were "taken aback" when he directed them to appeal in the Lim Choon Teck case.

In more than 15 years of covering the courts, I have seen some prosecutors who do indeed embody the ideal of disclosing information to the court, even if it could lead to a lighter sentence.

In a particularly memorable case, a prosecutor pointed out that an embezzler had surrendered to the police with evidence of his crimes - which is generally considered mitigatory as it shows remorse.

However, not all prosecutors are as forthcoming. To be fair, perhaps there were no discernible mitigating factors in the cases they handled.

It is counter-intuitive, and overly onerous, for prosecutors to look out for mitigating factors. Indeed, the duty of disclosure does not include searching for additional material.

Also, defence counsel, even though they serve private interests, are still expected to assist in sentencing submissions, as they are officers of the court.


In the past five years, the higher courts have issued at least 15 judgments setting out structured sentencing frameworks for offences including rape, national service evasion and drink driving.

These, and other benchmarks, are cited in the courts daily by both prosecutors and the defence in their sentencing submissions.

Sentencing guidelines are desirable as they enhance consistency; when there are disparities in sentences meted out for similar offences, public confidence in the system is eroded.

Parliament also plays a role in sentencing by reviewing and tweaking legislation to adjust punishment levels to suit the severity of offences, like it did in 1998 with the enhancement of punishment for maid abusers.

It could also resolve loopholes in legislation that leads to prescribed sentences that are not commensurate with the offences, but tie the hands of judges, who can apply only laws that are passed by the legislature. Such an anomaly was flagged last month by CJ Menon in laws dealing with drinking-related traffic offences that could result in repeat offenders getting off lightly.

Another way is to look into a suggestion by Justice Chan Seng Onn at this year's conference for a Sentencing Council that comprises other stakeholders, including prosecutors, defence lawyers, academics, relevant government representatives and social workers.

The council here now is made up entirely of judges, and sentencing guidelines are issued only in the form of judgments when an appropriate case comes before an appeals court. As such, when tweaks are needed to sentencing guidelines due to changes in policy, for instance, the court needs to wait for an appropriate case to come up on appeal before it can make the necessary changes.

Justice Chan's suggestion, if acted upon, will include stakeholders beyond the legal community and harness the views of social workers, academics and others to improving sentencing guidelines. A similarly diverse representation is also seen in the Sentencing Council for England and Wales.

Relying on the legal profession alone has its limitations. It is tough to expect defence lawyers to shoulder the responsibility of acting in the public interest in lieu of their clients'. But if the criminal bar as a whole can participate, that will help balance the scales of justice in the sentencing process.

Of course, an expansion needs to be carefully calibrated to ensure it doesn't become too big and slow down the work of the council.

The move towards a less adversarial system is welcome, but more moves should be considered to raise the chances of public interest being advanced.

A version of this article appeared in the print edition of The Straits Times on November 09, 2017, with the headline 'A less adversarial system that advances public interest'. Subscribe