Explainer: What is the significance of character references in criminal cases?

Recently, Tan Lee Hoon was found guilty of abusing her two foreign domestic workers and sentenced to 10 months’ imprisonment. Her defence lawyers tried to argue that she did not deserve to go to jail and should have received a fine instead. In support of their arguments, they apparently submitted character references from about 30 people, including Tan’s friends, former maids, and others.

THE SIGNIFICANCE OF CHARACTER

It is important to distinguish between the effects of character evidence on conviction and sentencing.

First, an accused person needs to be convicted of an offence before she can be liable for punishment. If the accused denies wrongdoing, then she will have to be proven guilty beyond reasonable doubt before a court of law. This process is called a trial.

Generally, character evidence is not terribly useful at this stage. A person of generally good character may commit a crime on occasion, and a person of generally bad character is not necessarily always guilty of a particular crime. For example, it is a logical fallacy to say that because Adam has been convicted of theft before, if a theft is committed in Adam’s vicinity, he must have committed it.

Second, once an accused person has been convicted, the issue is one of sentencing — what punishment that person should receive. The process of sentencing requires the court to consider aggravating and mitigating factors — things that make the appropriate punishment either lighter or harsher.

At this stage, character evidence may be relevant if it is connected to the offending conduct. For example, in Tan’s case, her character as an employer is relevant, whereas her general disposition towards non-employees would probably not be relevant.

CHARACTER EVIDENCE AS A MITIGATING FACTOR

The Court of Appeal explained in the case of Chew Soo Chun, a businessman convicted of falsification of accounts and cheating in 2015, that mitigating factors fall into three categories.

First, decreased culpability. In this category, the offender may be suffering from some condition or subject to some combination of circumstances that reduces her moral responsibility for the offending conduct. For example, serial shoplifter Goh Lee Yin was found to have suffered from kleptomania, a mental condition that contributed to her stealing.

Second, behavioural credit. This category comprises things that an offender does that count in her favour. For example, pleading guilty to the charge and thereby showing remorse.

Third, increased sensitivity. This category comprises factors that would cause the offender to suffer more than usual when subjected to punishment. For example, a medical condition which is untreatable in prison.

Good character is generally considered under the rubric of behavioural credit. The issue for the court is whether the offender’s punishment should be lessened due to her good character.

It is often argued that an offender “acted out of character”. It is not entirely clear how this translates into behavioural credit. Former Chief Justice Yong Pung How once said, in the case of Xia Qin Lai in 1999:

"It might also be said in the appellant’s favour … that he had no previous convictions and was a first offender in respect of the offence charged. In my opinion, this was of little assistance to him. The inference here must be that the appellant as a first offender and being of good character was a mitigating factor.

"In reply, it might be said that the weight to be given to this would be greater if there were positive evidence as to character rather than the negative inference from the absence of allegations of other convictions. Contrariwise, the counter-argument could also be made, that being of good character is irrelevant as a mitigating factor but relevant as an aggravating factor in that the gravity of the offence is so much greater because the offender should have known better than to commit the offence in the first place.

"The fact that the appellant had no antecedents, therefore, must at most be a neutral factor."

However, good character may be taken into account in exceptional circumstances. For example, in the case of Glenn Knight, ex-Director of the Commercial Affairs Department.

In considering the sentence to be imposed for his cheating convictions, the court took into account the fact that he had a distinguished record of public service, including a long career as a member of the Legal Service, a commendation from the Minister of Finance for outstanding leadership, a Public Administration Medal (Gold), and had served on the boards of various educational institutions.

The line is a fine one, however. If the offender’s good character enabled him to commit an offence, for example, by being entrusted with property which he subsequently embezzled, then his track record might instead be considered an aggravating factor.

The court may also regard good character, or lack of prior convictions, as a sign that it should prioritise rehabilitation for the offender.

The courts strive to balance four competing considerations — deterrence, retribution, protection, and rehabilitation — in coming to a sentence. Usually, a person who is likely to commit crimes in future will be punished more harshly, for deterrence and protection, than a person who is unlikely to commit future offences.

Therefore, good character can arguably be used as an indication that an offender is unlikely to commit future offences and should not receive increased punishment. Technically, this is not a mitigating factor but rather a rebuttal of an aggravating factor.

To sum up, character evidence is sometimes a double-edged sword. On the one hand, it may be a significant mitigating factor where the offender genuinely has a stellar track record. It may also help to offset other aggravating factors brought up by the prosecution.

On the other hand, in many cases, it is simply a neutral factor. In the worst-case scenario, the court may even consider that, given the offender’s record, she should have known better than to commit a crime and treat it as an aggravating factor.

ABOUT THE AUTHOR:

Alexander Woon is a lecturer at Singapore University of Social Sciences’ School of Law and practises law as an of counsel at RHTLaw Asia. He was formerly a deputy public prosecutor at the Attorney-General's Chambers.