Judges should have more flexibility: MP (n 2 following letters)

[bic_cherry]

Judges should have more flexibility: MP
Allow option of suspending driving licences of those who get others to take the rap for traffic offences, says Hri Kumar
Updated 04:45 AM Jun 16, 2012
by Teo Xuanwei
SINGAPORE - Admitting he was "surprised" by the S$1,000 fine imposed on well-known plastic surgeon Woffles Wu, Member of Parliament Hri Kumar Nair has argued for "more flexibility in sentencing so that the punishment truly fits the crime".
Posting on his blog about the case, which has become a talking point, Mr Nair, who is also chair of the Government Parliamentary Committee for Home Affairs and Law, said others who have committed similar offences have been jailed.
"Such offences are undoubtedly serious, as they seek to undermine the course of justice," the Senior Counsel wrote on Thursday night.
Dr Wu, 52, had abetted Mr Kuan Yit Wah, 83, in providing misleading information to the police for a speeding offence involving his car in November 2006.
Dr Wu was fined S$1,000 on Tuesday, while the other offence, committed on Sept 11, 2005, was taken into consideration by the judge when passing sentence.
While he noted that no two cases are the same and that he did not know what the judge took into account in arriving at the decision, Mr Nair hoped the court would explain "its reasons and how other cases where jail terms were imposed were distinguished" - questions also raised by a writer to TODAY's Voices pages.
"That will promote transparency and confidence in our legal system, and deal with allegations of unfair treatment, which have already appeared on the net," Mr Nair wrote.
In response to TODAY's queries, an Attorney-General's Chambers spokesperson said its position during Dr Wu's sentencing was that a fine would suffice.
She added that the AGC would not be appealing against Dr Wu's sentence.
As the offences were committed before the Penal Code was amended in 2008, the maximum penalty was six months' jail and a S$1,000 fine.
The amended Penal Code made such offences more serious, raising penalties to a maximum seven-year jail-term and a S$10,000 fine.
On his blog, Mr Nair wrote: "I believe that part of the problem is that, most times, the law gives judges very little discretion in sentencing - it is usually a fine or jail or both. There may be occasions where a fine is too lenient, while jail may be too harsh."
If an offender cannot pay a fine, he would have to go to prison in default, Mr Nair noted.
"That creates two problems - it discriminates between those (who) can pay and those who cannot; and it converts a light punishment to a heavy one."
Even as the Police have said the speeding offences in question are still being probed - court documents did not state who the actual driver was - Mr Nair wondered if suspending the driving licences of those who get others to take the rap for traffic offences would be a "more appropriate punishment". "Inflict on the offender what he was trying by criminal means to avoid," he wrote.
Singapore Management University law academic Jack Lee felt that Mr Nair's suggestion was "interesting" and agreed that such a "targetted approach" would be fair.
"But the other types of punishment, beyond fines and jail, ought to be related in some way to the offence so that it would be tied to the harm which was being targetted by Parliament in the first place," said Assistant Prof Lee, who cited corrective work order for litterbugs as an example.
Doing so would serve as a "stronger disincentive" to potential offenders, as well as send the message to the wider public that "this is the harm that we're trying to target and prevent", he added.
Asst Prof Lee noted, however, that it should not be up to judges to come up with "creative" penalties for the relevant offences. Rather, they should be clearly specified alternative punishments, similar to how compensation orders are now available to judges in offences like voluntarily causing hurt under the revised Criminal Procedure Code.
While criminal lawyers TODAY spoke to also agreed on greater flexibility in the legislation for judges to have wider discretion in sentencing, Mr Shashi Nathan noted that those who get someone to take the rap for traffic offences could also be charged with Road Traffic Act offences, some of which invite driving suspension too.
The problem experienced in other jurisdictions which have tried to promote non-custodial options, noted National University of Singapore criminal law lecturer Michael Hor, is that members of the public may feel on some occasions that non-custodial dispositions are a "let off" or "soft options", which "make a mockery of the criminal law". "That said, disagreement with the appropriate punishment is a common phenomenon - simply because offence and offender seriousness is not susceptible of measurement in discrete units," he added.
URL http://www.todayonline.com/Singapore/EDC120616-0000039/Judges-should-have-more-flexibility--MP

 

[bic_cherry]

Judges should have more flexibility: MP...

Shore up judicial discretion in sentencing
04:45 AM Jun 19, 2012
From Winston Chew Choon Teck
I support Member of Parliament Hri Kumar Nair's call, "Judges should have more flexibility: MP" (June 16), although the issue of sentencing is a complex one, involving various considerations.
While our judges have discretion in sentencing, this is circumscribed by existing precedents, guidelines and legal principles. A judge who fails to observe these would be in dereliction of his duties, with consequences to his career.
In the case concerned, the Law Minister went some way to assuage concerns that the offender was treated lightly, as reported in "Law Minister explains Woffles Wu sentencing" (June 17, online).
The Attorney-General's Chambers also made it clear that prosecutorial discretion was exercised in deciding that it was legally appropriate to charge the offender under the Road Traffic Act, as reported in "AGC explains charges against Woffles Wu" (June 18).
But Section 81(3) of the Road Traffic Act does provide for a jail term of up to six months or a fine or both.
The case may highlight the need to review the entire sentencing policy and see in what circumstances judges can be given discretion to deviate from sentencing norms when merited by the circumstances.
The Criminal Procedure Code 2010 has enlarged the scope of sentencing options, but these are limited to certain categories of minor offences.
For more serious offences, which this case may be, sentencing reform would require amendments to our criminal procedural and other laws, a process which would take time for consultation with stakeholders.
While nobody can argue that punishment must fit the crime, the difficulty is in fitting this legal principle within our existing laws and making it work. The authorities may have to decide if this case is a wake-up call to pay more attention to this area.
The backlash from the case cannot be ignored. The unfounded perception, unfortunately, is that there are two sets of laws in Singapore: One for the upper echelons of society and one for the rest of us. Such perceptions are hard to change, even if unwarranted.
This is compounded by what appears to be legislative encroachments over the years.
Traditional sentencing discretion vested in judges has become increasingly curtailed by mandatory prescriptions of minimum jail terms and fines for certain offences, reducing judges to an administrative role in dispensing sentences.
At the core of this subject is the role of our judges in administering justice: Are they judicial dispensers of parliamentary intention, or do they exist to see that justice is done and the punishment fits the crime?
URL http://www.todayonline.com/Voices/EDC120619-0000024/Shore-up-judicial-discretion-in-sentencing

 

[bic_cherry]

Shore up judicial discretion in sentencing
...

Without discretion, can there be equity, justice in law?
Updated 08:44 AM Jun 27, 2012
From Dudley Au
I refer to the letter "Shore up judicial discretion in sentencing" (June 19). There are two considerations in evaluating the exercise of discretion. One is equity.
Take, for example, those under the age of consent, who are seen in law as children, who have yet to attain full cognitive capabilities. They cannot vote or sign any document.
Can consent between two underaged persons to infract the law be regarded as an offence? Can a child be held responsible for his action, say, in consensual sex, in the criminal sense?
The child could be counselled because his action transgresses moral or religious dictates and is injurious if it results in pregnancy.
Or the iron fist of criminal procedure could mean that a criminal record accompanies the child through life, for an infraction of laws that deem a child incapable of signing documents but capable of being treated as an adult for consensual sex.
The example is but one of many involving the law and equity.
Second, there must be congruence between the dictates of the law and its administration. Law theorist John Austin said that every rule is a general command and a person is obliged under a rule whereby he is liable to be hurt should he disobey.
Legal philosopher Herbert Hart disagreed and expounded that, when a community has developed a fundamental secondary rule that stipulates how legal rules are to be identified, the law is born.
This would remove a concern that selective enforcement and sentencing could or would be a contagion in the legal system.
While the doctrine of judicial precedent holds, discretion dictates whether the law, in its application of principles, takes into consideration ameliorative elements essential to justice. Discretion, whose other name is equity, must be evaluated in this light.
URL http://www.todayonline.com/Voices/E...scretion,-can-there-be-equity,-justice-in-law
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