Recently, the inquiry committee set up to review the deadly industrial explosion that occurred in a Tuas industrial plant in February 2021 found that there may have been criminal conduct on the part of the company operating the plant, its directors and production manager.

The committee’s report has now been forwarded to the Public Prosecutor for further consideration.

Some may wonder why this is necessary. If a finding of criminal conduct has been made, should consequences not automatically follow from that?

The inquiry committee is not a court – its terms of reference are only to inquire into the causes and circumstances of the accidents and make recommendations to prevent such accidents from happening again. If any criminal conduct is suspected, it must refer such conduct to the Public Prosecutor.

Although a Senior District Judge chaired the inquiry committee, its proceedings are not considered judicial proceedings and have no binding effect when it comes to criminal law. The accused persons must first be prosecuted and can be punished only if a court finds them guilty.

The Public Prosecutor is the ultimate authority in Singapore when it comes to deciding whether to prosecute someone for alleged criminal conduct. This is known as “prosecutorial discretion”.

WHAT IS DISCRETION?

Discretion, as legal concept, means that a person is given the authority to decide something according to his own judgement.

The fundamental issue is who gets to decide whether to bring a criminal case against an accused person or not. This ability to decide is known as “prosecutorial discretion”.

A criminal proceeding is known as a prosecution. Prosecutions are brought by the state against individuals who are believed to have committed a crime. The objective of a prosecution is to vindicate society’s interest in bringing the accused to justice. This is distinct from civil proceedings, in which the victim of the crime might sue the offender for compensation.

In Singapore, prosecutorial discretion is vested exclusively in the Public Prosecutor, who is the Attorney-General (AG). Article 35(8) of the Constitution states:

The Attorney General shall have power, exercisable at his discretion, to institute, conduct or discontinue any proceedings for any offence.

Prosecutorial discretion therefore means that the AG can decide to start, not start, or put a stop to, any prosecution for any offence. It is ultimately his judgement call and there is no one who can force him to make or change his decision; not even the President, Prime Minister, or Chief Justice. The only situation in which it might be challenged is if the decision is unconstitutional or an abuse of power.

Importantly, when wielding this power, the AG acts independently from government. When acting as the Public Prosecutor, the AG makes his decision independently and impartially, according to the law and the requirements of the “public interest”.

PROSECUTION ACCORDING TO LAW

The AG cannot simply haul up anyone on a whim. Prosecutors must first determine whether a crime has been committed.

Crimes, known as offences, are defined by Acts of Parliament.

The main criminal statute in Singapore is the Penal Code, which deals with obvious crimes like murder, sexual offences, and cheating.

There are also more specialised statutes dealing with other crimes: This case may implicate offences under the Workplace Safety and Health Act, which imposes requirements on certain persons to take steps to ensure the safety and health of workers.

When a crime is reported, it will be investigated by an enforcement agency. This is usually the Singapore Police Force.

In this case, which may concern offences under the Workplace Safety and Health Act, enforcement and investigations officer from the Ministry of Manpower (MOM) may also be involved.

The enforcement agency will then send the case file to the Attorney-General’s Chambers for assessment.

A Deputy Public Prosecutor, a public servant who assists the AG in his role as Public Prosecutor, will need to determine whether the evidence shows that a crime has been committed, and importantly, whether there is a reasonable chance of proving it to a court.

If there is, the second step is to determine whether prosecution would be in the public interest.

WHAT IS THE 'PUBLIC INTEREST'?

Public interest does not mean the level of interest shown by the public in any given case. The public shows absolutely no interest in the vast majority of criminal cases, which are minor and most often not reported.

And sometimes the public shows too much interest in cases that are sensational, but that are not legally significant – especially cases involving celebrities or lurid details, such as those in some sex crimes.

Being guided exclusively by the level of public attention potentially leads to injustice – public sentiment needs to be balanced against objective principles of law and fairness to the accused.

Public interest in the context of a prosecution is a composite concept encompassing many considerations. The AG has said that some considerations include:

• Whether it is a justifiable use of public time and resources to pursue prosecution for minor offences; and

• Whether a warning might be more appropriate instead, for example for first-time offenders.

When determining these issues, the AG said prosecutors bear in mind the aims of prosecution:

• To maintain a safe and secure environment, taking firm action against crimes that affect law and order like violent crime or organised crime.

• To promote a culture respectful of people’s rights, ensuring that everyone plays by the rules and therefore has a fair chance. This means combatting crimes like cheating and corruption.

• To promote strong public institutions, which are necessary for the smooth functioning of society. For example, shoring up trust in the courts by prosecuting offenders for contempt of court.

• To promote broader objectives of public policy. For example, taking action against companies whose activities contribute to cross-border haze and pollution.

This is not a closed list and the AG has stressed that it evolves over time. Protection of the public from fake news, for example, has taken on a new significance.

And, of course, protection of public health is now a priority due to the Covid-19 pandemic, which has seen the rise of prosecutions for breach of Covid-19 regulations.

Importantly, the public interest is not the same thing as the victim’s interest. While vindication of the victim’s rights is important, it is but one factor that the Public Prosecutor must weigh, in addition to considering fairness to the accused and the needs of society in general.

It is a common misconception that a victim can refuse to “press charges” against an accused person – this is not so in Singapore. The AG may decide to prosecute or not prosecute regardless of the victim’s views.

WHO DETERMINES THE PUBLIC INTEREST?

The public interest is an amorphous concept. Reasonable people may reasonably disagree over what is in the public interest in any given case. Someone must have ultimate responsibility for making a decision – in criminal cases, it is the AG.

The inquiry committee has, in this case, made certain findings of fact as to the causes of the explosion and made recommendations to prevent such incidents from recurring. It has also said that offences under the Workplace Safety and Health Act may have taken place, in addition to offences under the Penal Code for obstruction of justice – lying to MOM investigators and deleting of evidence.

The Government has accepted the inquiry committee’s recommendations relating to the safety and health issues. However, it is not up to the Government to decide on whether to pursue a prosecution.

It is the AG’s sole responsibility to decide whether to press charges. The AG is entitled to consider the inquiry committee and the Government’s positions when determining the public interest. But he is not bound or fettered by them, since in his capacity as Public Prosecutor he acts independently.

A similar situation occurred in February 2022, when the Committee of Privileges (COP) investigating untruths told by ex-Member of Parliament Raeesah Khan recommended that Workers’ Party Members of Parliament, Pritam Singh and Faisal Manap, be referred to the Public Prosecutor for investigation and possible prosecution – Mr Singh for being untruthful while on affirmation and Mr Faisal for refusing to answer relevant questions.

Parliament, unlike the inquiry committee, could have imposed sanctions for the misconduct the COP found, but it felt the matter was serious enough to warrant deeper investigation and prosecution before a court.

Therefore, it will be some time before the outcome of criminal proceedings is known. The AG will have to decide whether to bring charges, and if he does, it will be up to the courts to determine whether the accused persons are guilty.