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Crime and Sentencing an Investigation J AN – JUN 2009 CRIME AND SENTENCING An Investigation MICA (P) 226/04/2008 JAN – JUN 2009 | SINGAPORE ACADEMY OF LAW UP CLOSE 04 Mr K S Rajah SC, Mr Sant Singh SC and Mr Subhas Anandan on the criminal landscape and life at the criminal bar. 13 The Honourable Attorney-General Professor Walter Woon shares his views on sentencing. 04 IN Focus 15 Dubious honour roll for the top ten most significant criminal cases in the past 15 years. Cover 22 A timely review on white-collar crime, Mediactive its history and future trend. 30 Should judicial mercy have a place in sentencing? 35 CSI: Singapore – Haven’t you always wanted to know what happens behind closed doors in the forensics 22 laboratory? 44 Historical overview of the Penal Code and the public policy rationale behind its reform. 52 Discussion on the background of two new sexual offences, and the problems faced in enforcing the new laws. SIDE BAR 56 Being a greenhorn in the Bar is no mitigating factor, as Adrian Tan rightly points out. 44 60 A review of Sentencing Principles in Singapore, a forthcoming title from Academy Publishing. BUZZ 63 The Honourable K G Balakrishanan, Chief Justice of India, grants Inter Se an interview prior to the Annual Lecture 2008. 66 Interacting with the new integrated 56 Electronic Litigation System. JANUARY– JUNE 2009 INTER SE is a bi-annual publication of: If he has a conscience he will suffer for his mistake. That will be punishment – as well as the prison. 1 JusTICE is a fundamental tenet of our legal system, and is especially significant in judicial decisions. In many instances, the sentence that is handed down provides one of the few means by which society and the Chief Executive victim are able to receive redress for an injustice. In turn, sentencing Serene Wee decisions are often closely scrutinised by the public, the media, Editor legal practitioners, academics and, to some extent, the offender, to Elizabeth Sheares ascertain whether a sentence has been fairly passed in accordance Consultant Editor with established sentencing principles. Anita Parkash The principles used by the court, namely, retribution, deterrence, rehabilitation and protection, govern any sentencing decision. The Editorial Committee task of sentencing is complex and involves objectively recognising Ranald Or Bala Shunmugam the severity of the offence under the circumstances, and injecting the Foo Kim Leng subjective (offender-specific) aggravating or mitigating factors. The complexity stems from the subjective human element present 1 Supreme Court Lane, Level 6, from the point the crime is committed to the sentence imposed. Singapore 178879. The final outcome hinges on the charges framed, the documents Tel: 6332 4388 Fax: 6334 4940 disclosed, the evidence gathered, the sentencing principle employed, © 2009 Singapore Academy of Law the offender circumstances, etc. To confound it all, the Legislature All rights reserved. No part of this provides guidance only in the form of a spectrum of culpability publication may be reproduced, stored in any retrieval system, (a range of possible outcomes); the final decision is left to judicial or transmitted, in any form or by discretion. This in itself raises broader issues. Should, say, judicial any means, whether electronic or mechanical, including photocopying mercy play a part? How best to accommodate competing sentencing and recording, without the permission of the copyright holder. principles? Perhaps, the court’s adherence to one principle is a Views expressed by the contributors reflection of society’s mores at that point in time. The values the are not necessarily those of the Academy, Academy Publishing nor community upholds changes with time. How do we thus ensure the Editors. Whilst every effort consistency, proportionality and fairness? has been made to ensure that the information contained within The difficulties in sentencing are a manifestation of the is correct, neither the Academy, Academy Publishing, the contributors challenging nature of criminal law. Even as we were finalising this nor the Editors can accept any responsibility for any errors or issue, a proposed Criminal Procedure Code Bill is threatening to alter omissions or for any consequences resulting therefrom. the legal landscape. This issue on crime and sentencing offers a broad .................................... range of articles on forensic evidence, the escalating sophistication in Advertising Sales white-collar offences (and crime in general), the underlying changing Florence Long values of society as espoused in the Penal Code amendments, in Mobile 9382 0381 addition to the illuminating interviews with senior criminal lawyers. [email protected] We hope you will read this issue. It would be a crime not to! Publishing Consultant Lyon Low Warm regards, Design Eunice Gracilia Jonathan Cai mediactive Bala Shunmugam Mediactive Pte Ltd 65 Ubi Crescent, #06-07, Hola Centre, 1 Fyodor Dostoevsky, Crime and Punishment (Bantham Classics, 1996) at p 246. Singapore02 • 408559. Tel: 6846 4168 Up Close As a veteran member of the MEN criminal bar, would you care to share with the newer members your experiences and impressions as BEHIND a criminal law practitioner? What of your criminal law career have you felt THE BAR to be the most rewarding? Conversely, what were the lowest points? THREE SENIOR MEMBERS KR: My experiences at the criminal OF THE CRIMINAL BAR, MRK SRAJAH SC (“KR”), bar are a memorable one. I was a MR SANT SINGH SC (“SS”) Deputy Public Prosecutor. I have also AND MR SUBHAS ANANDAN acted as defence counsel and sat in (“SA”), respond candidlY Judgment. ABOUT THEIR EXPERIENCES I was a Deputy Public Prosecutor at a AND IMPRESSIONS OF AN time when the Singapore criminal bar had UNFORGIVING CRIMINAL PRACTICE. big names. David Marshall, T T Rajah were household names. They were fearless and forceful. In court they were masters of both fact and the law. Deputy Public Prosecutors had to learn quickly if they wanted to avoid being told that they were not up to the mark. There was no such thing as plea-bargaining. The prosecutors and the court were both mindful of every man’s right to his day in court. Representations were made very often at informal meetings at the chambers. Prosecutors, police officers and defence counsel could all be pulled up sharply by the judges both at the High Court and at the lower courts if they became overzealous. 04 | Up Close The Prosecution did not take a position on are all upholding human values sentences. Very often it was limited to stating when the victim and his family want previous convictions of a similar nature, if any. revenge. Fair prosecution ensures Previous antecedents were given a restricted that the punishment philosophy is meaning. It was generally accepted that it not an eye for an eye which leads to was the judge’s primary role to decide on many blind men, or one-eyed men the appropriate sentence. Prosecution leaves in society. sentencing to the court except when asked The lowest point was reached to assist the court on a certain matter. The on reflection when the concept of Prosecution as the party prosecuting is not the a person being “factually guilty” best party to form a view on a fair sentence became respectable, ignoring the after a mitigation plea. The maximum sentence fact that life and liberty can only prescribed is the best guideline. be deprived “according to law” If the Prosecution is not satisfied with the and not when the police or the sentence, an appeal is filed against the sentence. Prosecution come to the conclusion If the Prosecution’s appeal lacks merit, there was that a person is “factually guilty”. a very real possibility of the Prosecution being The most rewarding part of chastised. my career as a prosecutor was The media did not sensationalise cases. the knowledge that you do not This was partly due to the fact that we had jury advance facts and theories that are trials and defence counsel would not hesitate to not supported by statements in complain to the court that their cases had been the file that have been voluntarily prejudiced by the newspaper reports of ongoing obtained. The knowledge that when proceedings or proceedings likely to appear in a case has to be proved beyond a court. reasonable doubt leaves open the Statements made to the police became possibility of mistakes being made admissible only after the CPC (Criminal for the simple reason that persons Procedure Code) was amended. Confessions are not convicted when there is no were always recorded by a Magistrate. Where doubt at all. Punishing an innocent a police officer produces an accused before person has always haunted the the Magistrate to record a confession and the common law world. It is possible Magistrate finds that the accused is not disposed for a guilty man to be acquitted to making a confession voluntarily, the accused but my experience is that when would be remanded in prison and not at the a guilty man is acquitted it does police station. not take long before he commits A criminal practice is not one where big another offence and ends up being money is made. The compensation lies in the fact prosecuted. We must also not be that the courts, Prosecution and the practitioner too quick to jump to the conclusion | 05 Up Close that when a judge takes greater pains to scrutinise the evidence before he convicts a person of a capital offence, he is against the death punishment. SS: The practice of criminal law can be daunting and is definitely demanding. It takes its toll on the accused and his/her family. The lawyer is looked upon by these persons as their saviour. It is not in every case that the accused denies committing the act.
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