Prosecutorial Discretion in Singapore

Last updated on January 14, 2021

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What is Prosecutorial Discretion?

A common misconception that the public has is that police officers are the ones who decide who to charge for an offence. Strictly speaking, that is not accurate.

Police officers do investigate and recommend an appropriate charge against an accused person, but the final decision to charge anyone lies with the prosecutors of the Attorney-General’s Chambers (AGC). Prosecutors are designated as either Deputy Public Prosecutors or Assistant Public Prosecutors, and senior prosecutors may hold positions like Director or Chief Prosecutor.

The AGC’s power to decide who to prosecute, when to prosecute, and how to prosecute, is known as prosecutorial discretion. At any point in time before judgment is given by a court, a prosecutor can decide to alter the charge or even drop charges completely. Even when the court has handed down a sentence, the AGC can choose to appeal against an acquittal or appeal for a higher sentence.

The source of this power is found in Article 35(8) of the Constitution of the Republic of Singapore, which states:

“The Attorney-General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence”.

In Singapore, the Attorney-General is the Public Prosecutor as well, and the prosecutors of the AGC, who are authorised to act on his behalf, exercise this power as well.

Prosecutorial discretion, however, does not mean that prosecutors can charge anyone that they feel like charging. As explained by then Attorney-General Steven Chong in a 2013 speech, the AGC has its own set of internal guidelines and review processes that ensure that prosecutors make an objective decision whether to prosecute or not. They must not only consider whether the evidence discloses an offence, but whether it is in the public interest to bring a prosecution.

Why is Prosecutorial Discretion Required?

Prosecutorial discretion is necessary for several reasons. Then Chief Prosecutor Aedit Abdullah explained in a 2013 Straits Times article that different offenders and offences require different types of treatment:

“Sometimes leniency may be called for because of the youth of the accused, or immaturity of mind, or prior good conduct. Sometimes the presence of all such factors may be outweighed by the need to deter similar criminal conduct”.

Guidelines cannot cover every single situation, so prosecutors need some flexibility to deal with the very different cases they see on a regular basis.

More practically, prosecutorial discretion helps to conserve government resources by allowing the AGC to concentrate on serious offences. Like any other government body, the AGC is funded by taxpayer money, and it would be a waste of public resources if it every single minor and petty offence was prosecuted.

Example of Prosecutorial Discretion

Imagine the following hypothetical scenario:

3 friends, A, B, and C, make plans to burgle a house. On the night of the burglary however, A has second thoughts and decides to stay at home. B and C still go ahead and break into the house, with B acting as a look-out while C actively searching for (and finding) valuables.

Unfortunately for them, a silent alarm was tripped when they broke in, and the police arrive just as B and C are making their escape. Realising that the game is up, B and C decide to reveal A’s involvement in an act of spite. A is subsequently arrested and brought to a police station to assist with investigations.

Despite being all involved in the same crime, the three friends do not receive the same punishment. The difference in treatment can be explained by prosecutorial discretion.

A attends several interviews at the police station over a few weeks. Throughout the interviews, it emerges that A always thought B and C were joking about carrying out the burglary, and never believed that they would actually carry out the plan. Furthermore, B and C separately admit that A was never involved in any planning for the burglary. Given the lack of evidence against him, the police recommend that no further action be taken against A. The prosecutor in charge of the case agrees, and A is let off with a stern warning.

B is charged under section 448 of the Penal Code for the offence of house-breaking, which is punishable by imprisonment of up to 3 years, a fine, or both. The prosecutor feels that B should be charged with a less serious offence than C because he did not actually steal anything and only acted as a lookout. Relieved at his luck, B decides to plead guilty and is sentenced to 2 years’ imprisonment.

C, on the other hand, is charged with a more serious offence than B: section 380 of the Penal Code for theft in a dwelling-house, carrying a maximum sentence of 7 years’ imprisonment. After all, C was the one who stole the valuables. However, the prosecutor in charge of C’s case offers him a deal: in exchange for C pleading guilty (thus avoiding the trouble and expense of a full criminal trial), C will be charged with theft under section 378 of the Penal Code, which carries a much lower maximum sentence of 3 years’ imprisonment. Not wanting to end up in jail for a potentially long period of time, C agrees to the prosecutor’s offer. In court, C pleads guilty and is sentenced to 2 years’ of imprisonment.

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