AG Walter Woon gives Dr Lee Wei Ling a Law Tutorial

[Porfirio Rubirosa]

JUSTICE, COMPASSION AND PROSECUTORIAL DISCRETION

On September 5 the Straits Times published an article by Dr Lee Wei Ling in which
she criticised the court in the Tang Wee Sung case for imposing “a token sentence” of
one day in jail “for trying to buy a kidney”. This was factually wrong: Mr Tang was
only fined for trying to buy a kidney. He was jailed for the minimum prescribed
period of one day for lying in a statutory declaration. Instead of graciously accepting
that she had made a mistake, Dr Lee then fired off a second misguided missile against
the Prosecution in a letter of September 10 criticising the decision to charge Mr Tang
for lying in his statutory declaration. This displays a fundamental ignorance of the
roles of the court and the prosecution.
In Singapore it is the function of the Courts to dispense justice and mercy. When
hearing a criminal case the judge must firstly determine whether the evidence and the
law support the charge. If he finds the offence made out, the judge then has to decide
the appropriate penalty, within the framework set out by the law.
The primary role of the Prosecution is to assist the judge to come to a just decision by
bringing to his attention the relevant law and presenting the evidence. The
Prosecution may also give some indication as to what sentence would be appropriate,
but ultimately the decision rests with the judge.
The Public Prosecutor has a discretion whether to charge an accused person for any
particular offence. This discretion is not exercised arbitrarily. In coming to a
decision on which charges to bring, the Prosecution considers the strength of the
evidence, the recommendations of the investigation agencies and ministries, the
expressed intention of Parliament and the public interest. The Public Prosecutor does
not substitute his judgment for that of Parliament. He does not decide on the basis
that some laws are to be ignored because he does not agree with them. He certainly
does not ignore a law just because some people think they know better than
Parliament what public policy should be and voice their views strongly.
Often the Defence makes representations to persuade the Prosecution not to prosecute.
At this point, none of the assertions is proven. The Prosecution weighs the
representations of the Defence against the public interest. If the Prosecution agrees to
drop the charges, the matter never reaches the court. It disappears quietly, out of the
public view. The offender gets off completely. There is a strong public interest in
ensuring that criminal matters are dealt with openly and transparently by a judge in
open court. Therefore, the Defence has to provide an extremely convincing argument
that it is not in the public interest for the accused to face a judge in open court.
With the principles firmly in mind, let us be clear about the facts. The Complainant
was an Inspector appointed under the Human Organ Transplant Act (HOTA). She
lodged a police report based on information received by the Ministry of Health that
preparations were possibly being made for a kidney transplant in Singapore in
contravention of the HOTA. After investigation, the Ministry of Health
recommended that charges be brought against one Sulaiman Damanik (the donor) and
Tang Wee Sung (the recipient), as well as certain other persons. The charges
recommended were, inter alia, one under the HOTA for entering into an arrangement
for the illegal sale and purchase of a kidney and one under the Oaths and Declarations
Act (ODA) for making a false statement in a statutory declaration. After considering
the evidence and the law, the Attorney-General's Chambers agreed with the
recommendations of the Ministry and the appropriate charges were laid against both
Mr Sulaiman and Mr Tang.
There were two separate and distinct charges. The first was a charge under the HOTA
for entering into an illegal contract for the sale and purchase of a kidney. The second
charge was under the ODA for lying in a statutory declaration. The Statement of
Facts and the Charges in the Tang Wee Sung case were posted on the website of the
Attorney-General's Chambers (www.agc.sg/docs) on September 2.
Mr Sulaiman was charged under the HOTA for entering into an illegal contract to sell
his kidney. The Prosecution did not press for a custodial sentence. He pleaded guilty
and was fined by the court. The Ministry of Health issued a Statement on 27 June
(after the plea of guilt but before sentencing) stating that:
“Organ trading often involves the exploitation of the poor and socially
disadvantaged donors who are unable to make an informed choice and suffer
potential medical risks. It is therefore largely prohibited around the world.
The Ministry takes a serious view of such illegal acts, and will take firm and
swift action against any offenders.”

 

[Porfirio Rubirosa]

On the other side of the transaction with Mr Sulaiman was Mr Tang. One infers that
Dr Lee does not think that either Mr Sulaiman or Mr Tang should have been charged
with breaching the HOTA, since she asserts in her letter of September 10 that “The
Government has indicated that it might legalise organ trading” (emphasis added).
Several things should be noted. Firstly, at the time the offence was committed organ
trading was prohibited in Singapore. The fact that the Government might legalise
organ trading at some indeterminate time in the future does not affect the fact that
both Mr Sulaiman and Mr Tang deliberately broke the law. Secondly, it is by no
means clear on what conditions organ trading will be allowed, if Parliament indeed
amends the HOTA in future. Dr Lee’s opinion is not the final word; other people are
permitted to hold other views. Parliament will presumably take into account all views
in making their decision. Thirdly, until Parliament changes the law, organ trading
remains illegal in Singapore, whatever contrary opinions some people may hold. The
Public Prosecutor is not at liberty to decide unilaterally to ignore a law passed by
Parliament.
Consider what the alternative implies. The seller and buyer decide to break the law.
Because the buyer is “desperate”, it is said that the Public Prosecutor should ignore
the fact that a complaint has been lodged by an inspector appointed under the HOTA,
ignore the recommendations of the Ministry of Health to prosecute, ignore the clear
terms of the HOTA and exercise his prosecutorial discretion to drop the charges. In
other words, the Public Prosecutor should decide to let them go, with no
consequences at all for deliberately flouting the law. On what basis should he do this?
On the basis, according to Dr Lee, that at some time in future (we do not know when)
the Government might (or might not) legalise organ trading (on conditions as yet
undetermined).
This is not the way the system works. The Public Prosecutor does not enforce only
the laws that Dr Lee agrees with.

 

[Porfirio Rubirosa]

Mr Sulaiman was prosecuted for trying to sell his kidney. It would have been
anomalous, to say the least, if Mr Tang, the counterparty, was spared prosecution.
Mr Tang pleaded guilty to the charge under the HOTA. In his submission to the
court, the Deputy Public Prosecutor said:
“As for the first charge under the HOTA, the Prosecution recognises the
desperate situation of the accused. Accordingly, the Prosecution is not
seeking a custodial sentence for this charge” (emphasis in the original)
The Prosecution’s submissions were posted on the Attorney-General's Chambers
website on September 2. Mr Tang was fined $7,000 for the offence under the HOTA,
a sum not beyond his capacity to pay. There was no custodial sentence.
The second charge against both parties was brought under the ODA. The ODA
makes it an offence for any person to knowingly make a false statement in a statutory
declaration. A jail sentence is mandatory, the maximum being 3 years.
In the letter of September 10 it is contended that “there was no requirement in law for
Mr Tang to have sworn the statutory declaration”. The rhetorical question is posed,
“Why then was it necessary to charge him with making a false declaration, which he
was not required by law to make in the first place?”
The point is not whether Mr Tang was required by law to swear a statutory
declaration (I will have more to say about this later). The key point is that he did
make a statutory declaration and lied.
Consider the strange logic: Mr Tang did not have to make a statutory declaration. He
made one nevertheless. He lied in the statutory declaration. Therefore the Public
Prosecutor was wrong to charge him.
A person who tells a deliberate lie in a statutory declaration is not excused from
liability just because he was not required by law to make the declaration. Perhaps by
some people’s value systems this justifies lying under oath; but that is not the law.
In any case Dr Lee is factually wrong again. The HOTA provides that the Transplant
Ethics Committee (TEC) of a hospital shall not give its authorisation for a living
donor organ transplant unless it is satisfied that the consent of the donor is not given
pursuant to a prohibited contract. The Regulations made under the HOTA state that
the TEC may request that additional information or documents be provided by the
applicant. In accordance with this, Mr Sulaiman and Mr Tang were required to
provide statutory declarations confirming that no money was to change hands for the
kidney and that the parties were related.
Why was a statutory declaration required rather than just a simple statement? The
obvious answer is that a person is obliged to tell the truth in a statutory declaration.
There are penalties for lying. This is clearly stated in the statutory declaration itself:
“And I make this solemn declaration by virtue of the provisions of the Oaths and
Declarations Act, and subject to the penalties provided by that Act for the making of
false statements in statutory declarations, conscientiously believing the statements
contained in this declaration to be true in every particular” (emphasis added). Mr
Tang is not an unlettered or unsophisticated man. He would have understood what he
was doing.
The ODA prescribes a mandatory jail sentence for lying in a statutory declaration. Dr
Lee says in her letter, “In my view neither Mr Tang nor Mr Sulaiman should have
gone to jail”. She contends that “Mr Sulaiman could also have been spared jail if he
had not been slapped with a charge that carried a mandatory jail sentence. A
desperately poor man, he was trying to save his family.”
Let us consider this carefully. Mr Sulaiman came to Singapore to sell his kidney, in
breach of the HOTA. He stated in a statutory declaration that he had not been
promised any money for this and that he was related to Mr Tang – both lies. Yet it is
contended that he should have been let off and not charged at all. In other words,
there should have been no penalty for breaking Singapore law because he was a
desperately poor man trying to save his family.
Two points should be noted. Firstly, the assertion that Mr Sulaiman was a desperately
poor man trying to save his family is not proven. It is a bare assertion. Secondly,
even assuming that to be true, one wonders on what principle such a course of action
could be justified. Is it acceptable that someone in the position of Mr Sulaiman
should be allowed to lie with impunity in a statutory declaration?
Lying in a statutory declaration is an assault on a fundamental pillar of the legal
system: the obligation to tell the truth on oath. A person who lies on oath in court is
severely punished. The same holds for a person who tells lies in a statutory
declaration. A statutory declaration is a sworn statement, the truth of which the maker
guarantees. If there is no punishment for lying in a statutory declaration, then the
document is valueless. Anyone will be able to make all sorts of false statements in a
statutory declaration with impunity. This is completely against the public interest.
Mr Sulaiman pleaded guilty to the ODA charge. The Deputy Public Prosecutor did
not press for a severe sentence; on the contrary, she stated that a “very short sentence”
would be adequate. The learned District Judge sentenced him to two weeks’
imprisonment. Even his Defence Counsel accepted that this was a very light
sentence, given that the maximum under the ODA is 3 years’ imprisonment.
Now we come to Mr Tang. He swore that no money was being paid for Mr
Sulaiman’s kidney. He swore further that Mr Sulaiman was related to him. Both
statements were lies. Was there any reason not to treat Mr Tang in the same way as
Mr Sulaiman?
Dr Lee says that “Mr Tang is seriously ill and unfit to go to jail”. She castigates the
Prosecution for the decision to charge Mr Tang with lying in the statutory declaration.
Let us examine this carefully. In considering representations from the Defence, the
Prosecution is always mindful that it is not unknown for an accused person to
exaggerate his condition. The Prosecution is not in a position to determine whether
an accused person really is too sick to be sent to jail. That is properly a matter for the
Judge. The court is better placed to decide whether to believe the mitigation plea
presented by the Defence, calling for evidence if necessary.
There was a clear public interest in bringing the matter to court to be dealt with in a
transparent manner, requiring Mr Tang to convince the judge that he really was too
sick to be sent to jail.
In presenting the case for the Prosecution, the Deputy Public Prosecutors handling the
case were extremely restrained. This is what the DPP stated in his address to the
court:
“Various representations were received to the effect that the accused should
not be charged with an offence under the ODA, which carries a mandatory jail
sentence, on account of his health. The prosecution did not accede to those
representations for the simple reason that there cannot be one law for the poor
seller and another law for the rich buyer. It should not be said that because the
accused is rich and influential, he can get the charges against him dropped.
Every decision to prosecute is made after careful consideration of the facts of
the case, regardless of who the offender might be. It was therefore necessary
that the accused face the same charges as Sulaiman.
Having said that, however, it is open to this honourable court in assessing the
sentence to temper justice with mercy and take into account the accused’s
physical condition in deciding the length of the custodial sentence to be meted
out for the second charge under the ODA. Given the extenuating
circumstances, the Prosecution submits that a very short custodial sentence
would suffice for the second charge of making a false statutory declaration.”
These submissions were posted on the website of the Attorney-General's Chambers on
September 2, freely accessible to all.
The Defence submitted at length that the minimum sentence should be imposed. The
learned District Judge agreed. The Prosecution did not object. Mr Tang was
sentenced to one day’s jail, the shortest sentence prescribed by law. The Prosecution
did not appeal against this decision.
Far from “abdicating its duty to exercise its discretion” as Dr Lee alleges, the
Prosecution considered this case very carefully, weighed all the relevant factors in the
scales of justice and exercised considerable compassion in urging the court to temper
justice with mercy, accepting the judgment of the court to impose the very shortest
sentence possible.
There will always be people who arrogate to themselves the right to decide which
laws are to be ignored because they do not agree. To them it is acceptable to lie in a
sworn statement if one is “desperate” enough. They criticise the Courts and the
Prosecution for having the temerity to insist on enforcing the law. Such people have
no empathy for the Rule of Law or respect for the constitutional principles which
underpin our society.
Those who are well-educated and influential should be models for society. It will be a
sad day for Singapore if such people think that they can pick and choose which laws
to obey and that it is morally and socially acceptable to lie on oath.
There are many countries in the world where wealthy people with friends in high
places can pressure the prosecutor to have charges against them dropped so that they
will not have to face a judge in open court. Singapore is not one of those countries.