~by: Teo Soh Lung~
The recent decision in the motion filed by M Ravi, lawyer for Ramalingam Ravinthran complaining that in the exercise of prosecutorial discretion, his client was unfairly charged with the crime that carries the mandatory death penalty is disturbing. Ramalingam was charged and sentenced to death for trafficking in cannabis while his accomplice was jailed for 20 years and given 24 strokes of the cane, a sentence which cannot be considered light especially if the claim that he has low IQ is true.
The judges of the Court of Appeal declined to elucidate reasons from the prosecutor as to why two men who had committed the same offence should face different charges, one attracting the mandatory death penalty and the other imprisonment and caning. This has led university professors to question why the prosecution was permitted to refuse to give its reasons when it chose to exercise its discretion unfavourably in relation to Ramalingam. The prosecutor said in court that “the factors involved in how the prosecution chooses to charge an individual were not purely legal, but also included extra-legal and moral aspects, as individual circumstances had to be taken into account. For that reason, she argued, prosecutorial discretion should generally “not be reviewable””.[1]
The judges apparently took that submission to heart. Have they forgotten the oft quoted aphorism of Lord Sankey in 1929 that “… justice should not only be done, but should appear to have been done.” ?[2]
The prosecutor, like the defence lawyer, is an officer of the court. When the prosecutor decides to charge a person with a drug offence that carries the mandatory death penalty, he in fact becomes a judge because the law has deprived the judges of their discretion to impose any sentence other than the death sentence. Such being the case, it is surely not unreasonable for the appeal judges to ask for the reason why two persons who committed the same crime face different charges. If judges cannot even carry out this duty, to check if there is an element of bias on the part of the prosecution in handling the case, then I am afraid, it is the end of our criminal justice system. We can broadcast to the world that we have the best judicial system in handling civil cases in Asia, but we cannot tell the world that we have the best criminal justice system.
Before I retired from the bar, I had often heard my friends who practised criminal law, lament the fact that the law is steeply stacked against the accused person. With an inactive law society, a one party legislature and a super-efficient law minister for several decades, laws incorporating presumption of guilt against the accused person, minimum sentences, acceptance of evidence of accomplices without corroborative evidence, acceptance of confessions without corroborative evidence and mandatory death penalty had sailed through parliament without any debate or serious debate. Even in motoring offences, presumption of guilt prevails. The work of the public prosecutor has been lightened to an extent that even an inexperience prosecutor can secure a conviction without any effort. Heavy reliance on confessions to secure convictions or plea bargaiing have become quite the order of the day. As a consequence, prosecutors become arrogant when dealing with defence lawyers.
I too had a taste of how arrogant prosecutors had become. In one case, my client was fortunately saved by the senior district judge and in the other, my client paid the price. The former dealt with an adult offender over 30 years of age. He came from a very good family but due to his mother’s terminal illness and his inability to cope with his depression, he shoplifted dvds from various shops all in one morning. He was caught and it was not difficult to know where he had stolen the articles. He was a first time offender and had a history of mental illness. The prosecutor charged him with more than 4 offences, taking each object of theft as one charge.
I naturally plea bargained with the prosecutor but he was only willing to reduce the number of charges to 3 which meant that the judge in sentencing would have no choice but to give him consecutive sentences and not concurrent sentences. The senior district judge was surprised that the prosecutor had taken such a tough stand against a first time offender and advised that perhaps I should see the senior deputy prosecutor. I did but to no avail. I then informed the judge in mitigation that that was the prosecutor’s stand. I asked that my client be put on probation even though it was rare that an adult would receive probation. The wise and compassionate judge granted probation, much to the surprise of the prosecutor.
I admit that I did not practise criminal law to any significant degree but the sporadic cases I handled during my legal career was sufficient for me to notice the drastic changes that took place. Mandatory minimum sentences, rapid expansion of offences carrying the mandatory death penalty and the presumption of guilt have eroded the power of judges. Judicial powers have swiftly and silently been passed on to the prosecutor even though our written constitution guarantees the separation of executive powers from judicial powers. The law allowing conviction based on uncorroborated confessions and uncorroborated evidence of accomplices leaves defence lawyers with miniscule chance of proving the innocence of their clients. All these changes have demoralised many lawyers. One senior lawyer actually gave up criminal law practice because it was “too uphill a task!”
The decision in Ramalingam’s case has opened the justice system to public scrutiny. Would the common man be able to understand why two men who committed one offence receive two different sentences? Singapore may have the best judicial system in civil matters in Asia but how do we rank in terms of criminal justice? With the public being more aware of human rights and the publicity given to judicial proceedings, the courts will certainly be subjected to more scrutiny than in the past. This public scrutiny can only be good for our judicial system. As Lord Atkin said “Justice is not a cloistered virtue.”[3] Public scrutiny provide that necessary safeguard against judicial arbitrariness or idiosyncrasy. But for Ramalingam, public scrutiny of his case may bring him little consolation.
