The complex challenge of prosecution in the public interest

Attorney-General Lucien Wong explained how prosecutorial discretion is exercised to advance the public interest in the Singapore Law Review Lecture, which he delivered on Thursday. Here is an edited excerpt from his speech.

What the public interest is, and how prosecutorial action interacts with it, is an extremely complex topic.

Reasonable people often disagree on what the public interest requires in any particular situation. These disagreements only get stronger in difficult cases. For example, where the behaviour of the accused evokes a visceral emotion, like anger or sympathy. Or where there is a clash of moral ideologies.

Yet, the public interest permeates all the decisions we make at the Attorney-General's Chambers (AGC) - from the moment we decide to charge someone, throughout the time we conduct the proceedings in court, to the conclusion of the case, when we submit on sentence. Public interest always plays a part. Despite being a concept we interact with so intimately, it is not quite possible to make a definitive statement, which will apply to all cases on what the public interest requires. It has to be assessed, case by case, with skill, wisdom, legal acuity and compassion. This is only one of the reasons why the public prosecutor's job is important and also demanding.

Determining what is in the public interest is a matter on which we have robust debates within the AGC, every single day.

Before we talk about the public interest, let me set the context in which decisions about the public interest are made by the public prosecutor. In every case, the first thing we consider is whether a criminal offence is even disclosed. Believe me, a lot of time and attention is spent considering this. This is a factual and legal exercise. First, we conduct a careful legal assessment of the case. We delve deeply into possible offences, research the elements, and assess whether our evidence can prove every element of the offence.

Then, we look at the evidence. We determine what evidence has been uncovered in investigations that can help prove the charge, and whether such evidence is admissible in a court. We also examine whether the evidence is reliable and the weight a court will give to that evidence.

If necessary, we direct the investigating agency to investigate further, to clarify doubts in the evidence, even if this means uncovering evidence that would exonerate a suspect.

At the end of this internal inquiry, we make an assessment of whether we are likely to have a reasonable prospect of securing a conviction. Only when we are convinced that the evidence and the law disclose a criminal offence, do we even begin to consider whether prosecutorial discretion should be exercised. It would be a subversion of the rule of law, and a waste of valuable public expense and resources, for us to pursue prosecution in the absence of a reasonable prospect of conviction. In fact, many of the files that are considered in the AGC, are closed during the first stage of assessment, because either the facts or the law does not disclose any criminal offence that can be proven in a court of law.


ST ILLUSTRATION : MANNY FRANCISCO

The public interest is then considered after we have decided that an offence has been committed and that we have sufficient evidence to obtain a conviction after trial. That is when we consider how we should exercise prosecutorial discretion. We do not charge every individual who commits an offence. For example, there are many cases which involve very minor offences - it may not make sense to bring these cases to court.

Also, not every person who commits an offence should be automatically prosecuted. For example, certain minor offences, committed by first-time offenders, may be visited with a warning, but may not result in prosecution. This is where considerations of public interest come in. The public interest informs the exercise of our prosecutorial discretion in three ways:

First, we have to decide who deserves to be charged and who deserves a warning instead. Second, we also have to determine what charges are appropriate and how many charges to prefer against the suspect. Third, once we have obtained a conviction, we have to decide what sentence we should submit for. Not every case deserves a stiff and deterrent sentence. We have to assess what we think is a just outcome and submit to the court accordingly.

The rest of my lecture will attempt to explain how the public interest interacts with these three decisions that we have to make virtually every day. I will explain that prosecution of a crime is more than just to punish the wrongdoer or offender - each prosecution is done with the public interest in mind.

Prosecuting in the public interest means four things: first, prosecutions are conducted in the name of the public; second, offences are prosecuted for the good of the public; third, proceedings are conducted according to values expected by the public; and finally, action is taken in the eye of the public.

IN THE NAME OF THE PUBLIC

Every prosecution that we initiate is named Public Prosecutor versus someone, namely the accused. This is more than just a naming convention. Having cases brought by the public prosecutor has two important implications.

First, it means that decisions to prosecute are made independently. As the Attorney-General, I wear two hats. Under the Constitution, I am the Government's chief legal adviser. In this role, the Government is my client. I sign off on legal advice to the Government. I also represent the Government in civil and judicial review proceedings in court.

But at the same time, I am also the public prosecutor. This is also a role that is set out in the Constitution. And in this role, I make decisions on whether to charge individuals for criminal offences. I am personally involved in the decisions for many cases, and in fact, make the final decision in almost all the prosecutions that begin in the High Court. The lawyers in my chambers, as well as the officials in government agencies, are very cognisant of the different hats that I wear. The ministers and permanent secretaries with whom I interact are also keenly aware of my distinct responsibilities under the Constitution.

When I act as the Government's chief legal adviser, our interactions are similar to those of any solicitor and his client. We render legal advice, draft legislation, and do our best to help the Government achieve its important public policy goals. Of course, as any lawyer would know, the lawyer merely advises, but it is the client, in this case the Government, who ultimately decides how to act as a matter of policy.

But as the public prosecutor, the relationship is entirely different. Prosecutorial decisions are made by myself and my colleagues at the AGC. Investigating agencies make recommendations, but the final decision whether to charge or not is made by us. Sometimes, because we stress-test a case based on the level of proof required in court, we may disagree with the agencies. When we do, we explain why we differ, but this is only to help the agencies appreciate what our thinking is, for when a similar case should occur in the future.

The A-G's independence is enshrined in our Constitution and is an established rule of practice within the chambers.

When a charging decision is made, the decision is made by myself and my colleagues. The decision to prosecute is brought solely on the basis of the law, and our assessment of the public interest.

Second, acting in the name of the public means that criminal prosecutions are brought not to further the private interests of the victim, but to further the larger public interest.

Obviously, the views of the victim are important but they are by no means determinative.

The second aspect of prosecuting in the public interest is that we act for the good of the public. In any given case, whether to prosecute, and what offence to prosecute for, is a truly complex and multi-factorial decision. Allow me to make four points about the objectives that we try to achieve through prosecution. First, we prosecute to maintain a safe and secure environment in Singapore. It is a critical national interest for law and order to be maintained. Safety and security is fundamental to the existence of any country, especially a small, highly urbanised, and digitally connected society like ours.

Safeguarding social harmony in Singapore is also an important aspect of protecting the safety and security we enjoy. We take a very serious view of offences that damage Singapore's social, ethnic or religious harmony, for good reason.

The second aim of prosecution is to promote a culture where rights are respected. Respect for legitimate rights is one of the key reasons for Singapore's conduciveness for business. Civil and property rights are protected, contracts are easily enforced, and investments are safe.

Corruption is a fact of life in many countries, including some in our region. If this becomes systemic in Singapore, our reputation as a safe and honest place to do business will be irremediably damaged.

The third objective of our prosecution is to promote strong public institutions. Strong public institutions are essential for the peace, harmony and prosperity of Singapore. Conduct that weakens public confidence in the rule of law and our public institutions, will be met with an unhesitating response from us, be it misconduct by officials working in those institutions or outsiders who cast aspersions on the integrity of these institutions.

There is no single, right answer in many difficult cases. Indeed, many exercises of the prosecutorial discretion reside along a continuum of credible, good-faith decisions made by my deputies, on the basis of evidence put before them. If the correct guiding principles are followed, I accord my officers a "margin of appreciation" - in short, no one person ultimately "determines" the public interest in the AGC.

Take contempt of court, for example. Contempt of court may not fit with the layman's view of a crime. After all, it is just throwing some dirt on judges and the court. However, it is not only an offence, but we also view it as a most serious one. The courts are an indispensable public institution in Singapore. It is vital that public confidence in our judiciary is maintained, both domestically and abroad, so that people understand that they will always have access to justice dispensed by a fair and independent court, when they need it.

Through prosecution for contempt, we act swiftly when unwarranted aspersions are cast on the motive or integrity of our judges. Let me stress that we are not concerned with criticisms of judgments or decisions of the courts. People are free to disagree with the decisions made by our judges. Judicial decisions are not immune from criticism, nor should they be. However, we will not tolerate the scandalising of our judicial system. We will not sit idly by when the independence and integrity of our judges are attacked. We act not to make any political points, and I would like to stress that we don't make political points by charging someone with contempt but we do so to protect the integrity of the legal system that we have spent decades building. Left to fester, these attacks can seriously erode public confidence in the administration of justice in Singapore.

This has been a consistent approach of previous A-Gs and it will continue during my tenure.

Also, we act to protect the integrity of the AGC - we check ourselves to ensure that we act appropriately in everything that we do, in every decision that we make. We check others who criticise us unfairly or who, without any evidence or proof, accuse us of not being independent in our charging decisions.

Fourth, prosecution also serves larger objectives that may not be immediately apparent to most - for example, in promoting environmental sustainability. The haze that we encounter in some years has severe effects on public health and the Singapore economy. Not to mention the serious long-term repercussions on climate change. With the enactment of the Transboundary Haze Act, we are now in a position to prosecute companies that are based in Singapore, but who contribute to the haze through their actions overseas.

Finally, I stress that these broader social objectives are not static. What we seek to achieve through prosecution will change with time, because the public interest evolves over time.

VALUES OF THE PUBLIC

The third aspect of prosecuting in the public interest is that we prosecute according to values expected by the public.

The public expects a far higher standard from the public prosecutor and his deputies, than from any private lawyer. We are expected to argue our cases passionately and committedly, but not to win at all costs. Our ultimate goal must be to reach just outcomes.

The protection of procedural rights takes on an especial focus in cases where the accused is unrepresented. We are obliged to ensure that the accused has the opportunity to present his defence. In some cases, through the court, we point the accused to the various means by which he can obtain legal assistance, and we urge him to use those.

In agreeing to deliver this lecture, I decided to explain how prosecutorial discretion is exercised to advance the public interest. The overall impression I wish to convey is that this is a multifaceted and complicated task, requiring the balance of many competing factors. There is no single, right answer in many difficult cases. Indeed, many exercises of the prosecutorial discretion reside along a continuum of credible, good-faith decisions made by my deputies, on the basis of evidence put before them. If the correct guiding principles are followed, I accord my officers a "margin of appreciation" - in short, no one person ultimately "determines" the public interest in the AGC.

We discuss our cases critically, and at times debate with each other vigorously, over the decisions we have to make every day. We do so precisely because it is only through that process of open engagement that we can arrive at fully considered decisions. Trust me, my deputies have full liberty to disagree with me. Ultimately, the final guarantor is the quality, integrity and compassion of the men and women to whom this crucial task is entrusted. And on this, I am very fortunate, because the deputy public prosecutors who assist me in the AGC are some of the most dedicated and committed lawyers I have ever had the privilege of working with.

I am confident that we have the right people, with the right values and the right skill sets, and because of this we will continue to prosecute in the public interest, and for the good of Singapore.

A version of this article appeared in the print edition of The Straits Times on October 21, 2017, with the headline 'The complex challenge of prosecution in the public interest'. Print Edition | Subscribe