Prosecutorial Discretion in Singapore

Last updated on January 2, 2020

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.

Arrest and Investigation
  1. Police Investigation Process in Singapore
  2. Arrest Warrant Issued Against You in Singapore: What to Do
  3. Police Arrest Procedure in Singapore
  4. Arrestable and Non-Arrestable Offences in Singapore
  5. What Should You Do If You Witness a Crime in Singapore?
  6. Can the Public Make a Citizen's Arrest in Singapore?
  7. What to Do If You’re Being Investigated for a Criminal Offence in Singapore
  8. "Right to Remain Silent" to Singapore Police: Does It Exist?
  9. Police Custody in Singapore: What You Should Know
  10. Search Warrant: The Issuance and Execution of It in Singapore
  11. Is Lying to the Police or Authorities an Offence in Singapore?
  12. Can You Say No to a Lie Detector Test in Singapore? And Other FAQs
  13. Surrender of Passport to the Police and How to Get It Back
  14. Extradition: What If I Flee After Committing Crime in Singapore
Bail
  1. The Essential Guide to Bail and Personal Bonds in Singapore
Prosecution
  1. What is Private Prosecution?
  2. Magistrate’s Complaints, Private Summons and Private Prosecutions in Singapore
  3. Prosecutorial Discretion in Singapore
  4. Compounding or Composition of Offences in Singapore
  5. Plea Bargaining in Singapore: All You Need to Know
During Criminal Proceedings
  1. Can I Represent Myself in a Criminal Court Case in Singapore and How?
  2. Claiming Trial as an Accused
  3. Pleading Guilty in Singapore: Consequences & Withdrawal of Plea
  4. The Defence of Unsound Mind in Singapore: What is It?
  5. Gag Orders in Singapore: Whose Identity Can be Protected?
  6. Mitigation Plea: How to Plead for Leniency in Court in Singapore
After Criminal Proceedings
  1. Guide to Filing a Criminal Appeal in Singapore
  2. Criminal Motion: What is It and How to File One in Singapore
  3. Guide to Filing a Criminal Revision in Singapore
  4. Presidential Clemency in Singapore
  5. Repatriation or Deportation from Singapore: How Does It Work?
  6. Criminal Records in Singapore
  7. Visiting a Loved One in Prison or On Death Row in Singapore
  8. Getting Parole (Early Prison Release) in Singapore
Types of Sentences After Committing an Offence
  1. Consequences of Receiving a Stern Warning in Singapore
  2. Probation: Eligibility and Whether It Leaves a Criminal Record
  3. How Can Adult Offenders Get Probation in Singapore?
  4. Reformative Training in Singapore: When Will It be Ordered?
  5. Are You Eligible for a Mandatory Treatment Order (MTO)?
  6. Caning in Singapore: Judicial, School & Parental Corporal Punishment
  7. 7 Detention Orders in Singapore: When Will They be Ordered?
  8. Day Reporting Order: Eligibility and Offender's Obligations
Being a Victim
  1. Using Your Right to Self-Defence When Attacked in Singapore
  2. Compensation for Crime Victims in Singapore: How to Obtain
Offences Against the Human Body
  1. Voluntarily Causing Hurt Penalties in Singapore (Non-Arrestable)
  2. Murder vs Culpable Homicide in Singapore (and Penalties)
  3. Is Suicide Illegal in Singapore? Will I Be Punished for Trying?
  4. Kidnapping Scam: Penalties & Responding to a ‘Kidnap Call/Text'
Sexual Offences
  1. Legal Age for Sex in Singapore and Common Sexual Offences
  2. Consent in Sexual Offences in Singapore and What Victims Can Do
  3. Accused of Molest: Outrage of Modesty in Singapore
  4. What Can Victims of Sexual Harassment in Singapore Do?
  5. What is the Law on Sexting in Singapore?
  6. Revenge Porn: What If Your Nudes are Leaked in Singapore?
  7. Crime of Voyeurism in Singapore (Penalties and Defences)
  8. Date Rape: What to Do If Your Drink Has Been Unlawfully Spiked?
  9. STDs: Can I Go to the Police If a Partner Infected Me in Singapore?
Vice-Related Offences
  1. Singapore's Legal Smoking Age & Common Smoking Offences
  2. Is Vaping Illegal in Singapore?
  3. Legal Drinking Age and Drinking-Related Laws in Singapore
  4. Is Watching, Downloading or Filming Porn Illegal in Singapore?
  5. Child Pornography in Singapore: Offences and Penalties
  6. Is it illegal to visit prostitutes in Singapore?
  7. Singapore's Drug Laws: Possession, Consumption and Trafficking
  8. Gambling Legally (In Public or Online) in Singapore
  9. The Offence of Human Trafficking in Singapore and Its Penalties
Cybercrime
  1. Penalties for Cheating/Scamming and What Victims Can Do
  2. Penalties for Impersonating Someone and Victim Redress
  3. Singapore Fake News Laws: Guide to POFMA (Protection from Online Falsehoods and Manipulation Act)
  4. Laws and Penalties for Doxxing in Singapore (With Examples)
White-Collar Crimes
  1. Criminal Breach of Trust (CBT) in Singapore: What is It?
  2. All You Need to Know About Corruption in Singapore
  3. Anti-Money Laundering Laws and You
  4. 5 Things You Need to Know about Insider Trading
  5. Dishonest assistance and knowing receipt - The case of David Rasif
Road Offences
  1. Charged with a Traffic Offence in Singapore: What to Do
  2. DUI: Here are the Penalties for Drink-Driving in Singapore
  3. What Happens If You’re Caught Speeding in Singapore?
  4. Road Rage: What is It and How are Offenders Sentenced in Singapore
  5. Penalties for Dangerous Driving for Singapore Drivers
  6. Fatal Traffic Accidents: Are Drivers Always Punished?
  7. Guide to E-Scooter and PMD Laws for Singapore Riders
  8. Is it Legal for Drivers to Carpool in Singapore?
Animal-Related Offences
  1. Is it illegal to feed stray animals in Singapore?
  2. Singapore Animal Abuse Offences, Penalties & How to Report
Offences Relating to Public Peace and Good Order
  1. Public Assemblies and Processions in Singapore: Police Permits and the Public Order Act
  2. Misbehaving in Public: 5 Things You Need to Know
  3. Racial Enmity: Sections 298 and 298A Penal Code Explained
  4. Religious Cults in Singapore: Are they Illegal? Penalties & More
  5. Penalties for Financing Terrorist Operations in Singapore
Certificate of Clearance
  1. How Do You Apply for a Certificate of Clearance in Singapore?
Other Criminal Offences
  1. Here are the Penalties for Committing Forgery in Singapore
  2. Penalties for Illegal Immigration and Overstaying in Singapore
  3. Criminal Intimidation: Penalties for Making Threats in Singapore