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Attorney-General Lucien Wong (Source: The Straits Times).

Current Attorney-General responds to former A-Gs regarding Public Prosecutor’s scope of exercising own discretion in prosecuting cases under Section 377A

In a press release yesterday (2 Oct), the Attorney-General's Chambers (AGC) have responded to the comments of two former Attorneys-General, highlighting that the former A-Gs' statements might convey an "inaccurate impression" that the Public Prosecutor’s (PP) capacity to apply discretion "has been removed or restricted" in respect of the s.377A of the Penal Code.

Professor Walter Woon and Mr V.K. Rajah, according to current A-G Mr Lucien Wong in his statement, "have recently suggested that it is not desirable for the Government and Parliament to direct the Public Prosecutor (PP) not to prosecute offences under section 377A of the Penal Code, or to create the perception that they are doing so."

The Ready4Repeal website quotes Prof Woon,

We cannot have a crime which is not enforced. The Government should not tell the Public Prosecutor that some things are crimes but there will be no prosecution. This is a slippery slope that we should not go down. The key issue is whether consenting adult males should go to jail for having sex. This is independent of the morality of homosexuality, which appears to be the focus of the debate. Even a person who thinks homosexuality is wrong may want to reflect on whether a jail sentence is appropriate for this. Adultery is not a crime, yet it is clearly wrong. It is essential for intellectual clarity to distinguish between morality and criminality. For those who think it is a sin: this is a matter between the individual and God, for homosexuals, just as for adulterers and fornicators.

A-G Lucien Wong, in rebutting Prof Woon and Mr Rajah's remarks, cited Article 35(8) of the Singapore Constitution, which states that "the discretion to institute, conduct or discontinue any proceedings for any offence is vested in the A-G as the PP."

He added that "the PP seeks only to advance the public interest" in exercising said discretion, whilst "taking into account all the facts and circumstances of the case, and other matters such as the recommendations of the investigating agencies and the expressed intention of Parliament."

Citing a case in 2008 in which Deputy Prime Minister and Minister for Home Affairs Wong Kan Seng explained that a police report was lodged by a 16-year old male who had oral sex with the suspect in the case of an offender who had been charged under s.377A, after which the Police subsequently referred the case to the PP after investigating the case.

The charge was filed by the PP based on the "facts and circumstances of the case, including the complainant’s age and the fact that the offence had taken place in a public toilet”. The Minister also made clear that: “… for any report disclosing an offence, Police will place the evidence before the PP for a decision as to whether or not to proceed with prosecution.”

Mr Wong elaborated:

The Police’s exercise of its enforcement or investigative powers should therefore not be conflated or confused with the PP’s exercise of discretion to commence prosecution. The PP’s exercise of prosecutorial discretion has always been, and remains, unfettered.

In the case of section 377A, where the conduct in question was between two consenting adults in a private place, the PP had, absent other factors, taken the position that prosecution would not be in the public interest. This remains the position today.

Reiterating what he deems to be the Government's position on the legislation that outlaws sex between two adult men, he said that while "the Police will not proactively enforce this provision, for instance by conducting enforcement raids," the police will carry out investigations should there be "reports lodged by persons of offences under section 377A, for example, where minors are exploited and abused."

The police's authority to conduct investigations based on reports and the PP's capacity to exercise discretion regarding the decision as to whether or not persons are to be prosecuted under 377A appear to be in contrast with PM Lee Hsien Loong's statement in Parliament in 2007: "There are gay bars and clubs. They exist. We know where they are. Everybody knows where they are. They do not have to go underground. We do not harass gays. The Government does not act as moral policemen. And we do not proactively enforce section 377A on them.

But this does not mean that we have reached a broad social consensus, that this is a happy state of affairs, because there are still very different views amongst Singaporeans on whether homosexuality is acceptable or morally right," said PM Lee.