JANUARY 16 — Lucien Wong, SC, was appointed Deputy Attorney-General and Senior Counsel (SC) on December 19, 2016 and assumed office as the Attorney-General (AG) of Singapore on January 14, 2017.
He was in private legal practice for more than 30 years, specialising in banking, corporate and financial services work, before his appointment to public office.
Despite his legal background, AG Wong was able to speak with much eloquence on his public roles as AG in his first major speech since taking the post when he delivered a lecture entitled “Prosecution in the Public Interest” at the Singapore Law Review Annual Lecture on October 19, 2017. The lecture covered issues such as what the public interest is, and how prosecutorial discretion interacts with it.
Highlighting that the public interest permeated all the decisions made by the Attorney-General’s Chambers (AGC), AG Wong shared how robust the debate could be on the public interest in the AGC.
He was quick to add, though, that it was impossible to lay down a definitive statement as to what the public interest was because it had to be determined on a case-by-case basis.
According to AG Wong, prosecuting in the public interest has four aspects. First, prosecutions are conducted in the name of the public. Secondly, offences are prosecuted for the good of the public. Thirdly, proceedings are conducted according to values expected by the public. Finally, action is taken in the eye of the public.
Prosecutions are conducted in the name of the public
While every prosecution is named as Public Prosecutor v [name of accused], AG Wong emphasised that this is not merely a naming convention.
Having cases brought by the Public Prosecutor has two important implications. First, the decisions to prosecute are made independently. Secondly, criminal prosecutions are brought not to further the private interests of the victim, but to further the larger public interest.
The Singapore AG, like his Malaysian counterpart, wears two hats. AG Wong explained the two hats as follows:
“Under the Constitution, I am the Government’s chief legal advisor. In this role, the Government is my client. I sign off on legal advice to the Government. I also represent the Government in civil and judicial review proceedings in Court.
“I am also the Public Prosecutor. This is also a role that is set out in the Constitution. In this role, I make decisions on whether to charge individuals for criminal offences. I am personally involved in the decisions for many cases, and in fact, make the final decision in almost all the prosecutions that begin in the High Court.
“When I act as the Government’s chief legal advisor, our interactions are similar to those of any solicitor and his client. We render legal advice, draft legislation, and do our best to help the Government achieve its important public policy goals. Of course, as any lawyer would know, the lawyer advises, but it is the Government who ultimately decides how to act as a matter of policy.
“As the Public Prosecutor, the relationship is entirely different. Prosecutorial decisions are made by myself and my Deputies. Investigating agencies make recommendations, but the final decision is made by us.... The AG’s independence is enshrined in the Constitution and is an established rule of practice within [the AGC].”
The decision to prosecute is brought solely on the basis of the law, and the AGC’s assessment of the public interest.
Offences are prosecuted for the good of the public
The decision whether to prosecute, and what offence to prosecute for, is a complex and multi-factorial decision. Every decision has serious repercussions for many people, not just for those involved in the offence, but for wider society as well.
AG Wong explained that various factors are considered when it comes to determining what is for the good of the public. It is impossible to give all-encompassing factors, but four objectives are sought to be achieved.
The first is to maintain a safe and secure environment in the country. Secondly, prosecution is to promote a culture where rights are respected. Thirdly, it is to promote strong public institutions which are essential for the peace, harmony and prosperity of the country. Finally, prosecution serves larger objectives that may not be immediately apparent to most, e.g. promoting environmental sustainability.
Proceedings are conducted according to values expected by the public
The third aspect is that prosecutions are conducted according to values expected by the public, with a far higher standard expected from the public prosecutors than any private lawyer.
Prosecutors are expected to argue cases passionately and committedly, but not to win at all costs. The ultimate goal must be to reach just outcomes.
The following excerpts illuminate the above aspect:
“It is not our policy to always, automatically prefer the most serious charge by default, to encourage the accused to plead guilty to a less serious one, or to prefer the largest possible number of charges, in order to encourage the accused to plead guilty to just a few. Similarly, we are conscious that every defendant has the right to claim trial.
“[W]here our evidence may not be as compelling, we do not adopt a defensive approach to prosecution. If we are convinced that a serious offence has been committed, we will not hesitate to act simply because securing a conviction may be an uphill task.
“If the justice of the case requires, we will prefer more serious charges, even if our chances of securing a conviction would be higher if we proceeded on less serious offences.”
Public prosecutors must take a bold approach to vindicate the public interest by prosecuting cases fervently, presenting the best evidence and arguments to the court.
If prosecutors obtain a conviction, the cause of justice would have been vindicated. But prosecutors will not shy away from trying the difficult cases, simply because a conviction cannot be guaranteed. This is simply because that is what the public interest and justice demand.
Action is taken in the eye of the public
The final aspect of prosecuting in the public interest is that action is taken in the eye of the public. Prosecutions are open to valid public scrutiny. Such scrutiny, however, will not detract from the prosecutorial drive toward justice.
AG Wong explained:
“The Court of public opinion is especially unforgiving when outcomes are not as expected. But we would have it no other way. The public deserves to know about our work and scrutinize our decisions, because ultimately, we answer directly to the people, and to their sense of justice and fairness. We are open to criticism – but I only ask that we be criticised fairly – do not accuse us unfairly or make unfounded criticism of us.”
Prosecutions and the public interest are intertwined and interconnected like rhythm and song. The two cannot be separated.
* This is the personal opinion of the writer and does not necessarily represent the views of Malay Mail.
