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.”
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.”