Stern Warnings In Singapore?

In light of the ambiguity surrounding the practice of stern warnings in Singapore, a media release early this year in February 2017 reported that the Singapore Police Force (SPF) issued stern warnings under the administration of the Attorney-General Chambers to four people for cooling-off day breaches during the May 2016 Bukit Batok by-election. The police said the warnings were issued in lieu of prosecution to Mr Jason Chua Chin Seng who founded the “Fabrications About The PAP” Facebook page, and The Independent Singapore’s Mr Masilamani Pillai Kumaran, Mr Ravi Chandran Philemon and lawyer Alfred Dodwell. All had published online articles in breach of the prohibition of election advertising on Cooling-Off Day and Polling Day under the Parliamentary Elections Act.

The SPF stated further that the stern warning administered can be taken into consideration in the decision to prosecute, should any of the parties commit similar offences in subsequent elections. Primarily, the practice of stern warnings stems from the need to achieve a balance between the recognition that not all crimes must be prosecuted and that an unprosecuted suspect does not simply walk away after an investigation thinking that no crime was committed and he got away scot-free.

 

Stern Warnings In Singapore

However, the practice of issuing stern warnings in Singapore is presently not governed by any statutory provision. There is also no published public literature by the authorities on this area. If a stern warning is issued for alleged maid abuse, would this information be shared with the Manpower Ministry and would it affect one’s ability to employ another maid? Would a record of such warnings be considered when someone applies for employment in the public sector?

These were some questions raised by lawyer Tan Hee Joek, writing in the latest issue of the Law Gazette published by the Law Society, pointing out that the uncertain effects of stern warnings are mainly due to lack of published literature on how they are administered.

“In rare cases of public interest, the authorities may briefly cite their reasons why they have deemed it fit to issue stern warnings rather than prosecute and these may help to amplify the factors that are considered by the authorities. However, such instances are rare. A stern warning is often described by the local press as a “slap on the wrist” but there does not appear to be proper public awareness of the precise effects of stern warnings. The negative result is that the public and even lawyers may have varying levels of understanding of the issuance of stern warnings in our criminal justice system and may, at worst, wholly misunderstand their effects.”

 

Two Types of Stern Warnings

Two types of stern warnings are known to be issued in Singapore by the authorities. The first are stern warnings which are unconditional (“Unconditional Stern Warning”) and the second is conditional (“Conditional Stern Warning”). The latter is a more recent creation and appears to be more widely used in recent years.

As their names suggest, the main difference between an Unconditional Stern Warning and a Conditional Stern Warning is that the latter is subject to conditions. While both would contain exhortations to the suspect to stay crime-free, a Conditional Stern Warning would typically contain the condition that the suspect must remain crime free for a period of time after its issuance. In practice, such a period is usually 12 months.

For Conditional Stern Warnings, the authorities reserve the right to prosecute the suspect for the original offence for which he was warned for as well as any fresh offence. If the authorities decide to issue a Conditional Stern Warning after an accused person is charged, the Prosecution will apply for a Discharge Not Amounting to an Acquittal after its issuance. A compliant suspect who remains crime free after the stipulated period will eventually be granted a Discharge Amounting to an Acquittal. On the other hand, if the authorities decide to issue an Unconditional Stern Warning after charging, the accused person will be granted a Discharge Amounting to an Acquittal immediately after such a stern warning is administered.

Conditional Stern Warnings carry a stronger deterrent effect. This is because the suspect is specifically deterred from committing any fresh offence for a certain period of time as he could potentially face prosecution for the original, and the fresh offence. In contrast, the lesser deterrent of Unconditional Stern Warnings is that the authorities are less likely to take a lenient stance against the suspect for a fresh offence, particularly if it is similar.

The other important difference between Unconditional and Conditional Stern Warnings is that the latter must require the suspect’s acceptance of such stern warnings. This is only logical as a suspect who is unwilling to accept the condition offered in the Conditional Stern Warning would have the propensity to re-offend. No such requirement appears to be mandatory for Unconditional Stern Warnings and its issuance is not always dependent on the suspect’s acceptance of the stern warning. On the other hand, it is known that in some cases, if the suspect does not accept an Unconditional Stern Warning, he will face prosecution and the Unconditional Stern Warning will not be issued. However, under what circumstances authorities will impose such a requirement is unclear.

 

When are Stern Warnings Issued?

Like other jurisdictions, stern warnings are generally reserved for low level, first-time offences. Generally, it is unlikely that stern warnings will be issued for more serious offences, especially where aggravating factors exist. For example, a single offence of shoplifting may generally be regarded as less serious but if it involves high valued items or a syndicate, it would generally be regarded as more serious.

It is also presently unclear if the views of the crime victim are taken into account by the authorities before a decision on stern warning is made. As the views of the crime victims are taken into account before offences are compounded in lieu of prosecution, it is submitted that it would be appropriate to do the same for a decision on stern warning.

There appears to be no limit as to the number of times that a suspect can be issued with a stern warning or the number of offences that can be covered by a single stern warning. However, it is not unreasonable to surmise that a suspect is generally less likely to receive a second stern warning for a similar offence that he subsequently commits.

 

How are Stern Warnings Issued?

They can be issued orally or in written form. However, it is unclear how the police decide on which format to rely on each individual case.

 

Effects of Stern Warnings on Prosecutorial Decisions

The immediate effect of a stern warning is that no further prosecution will be taken by the authorities against the suspect in respect of the offence for which the stern warning was issued. In the case of a Conditional Stern Warning, this is subject to the suspect’s compliance with the condition tied to the stern warning. Technically, it is possible for the authorities to revoke a stern warning and reignite criminal proceedings but such cases are extremely rare. An interesting related issue is whether the issuance of a stern warning bars a subsequent private prosecution. This issue was considered by the House of Lords in Jones v Whalley[2007] 1 AC 63. In that case, the House of Lords barred the private prosecution on the narrow basis that prosecuting a person who had been led to believe that accepting a stern warning would remove the possibility of criminal prosecution amounted to an abuse of process. It remains to be seen if our Courts would adopt a similar approach. It is submitted that there is even room to adopt a wider approach to bar private prosecutions after stern warnings are given because not doing so would allow an individual to displace the authorities’ determination that there is no public interest for a criminal prosecution to be instituted.

There is a second effect of a stern warning on prosecutorial decisions. If the warned suspect commits a fresh offence, the authorities are likely to consider the previous stern warning. Some weight is likely to be afforded to the detriment of the suspect, especially if the fresh offence is similar.10 However, what is unclear is whether the authorities will give less weight to the stern warning if the suspect had not admitted to the original offence or had not accepted the stern warning. Further, what about the situation where one suspect had previously admitted to the original offence versus another suspect who had not, with both having received stern warnings? How would the authorities view the fresh offences committed by both suspects? It is submitted that the authorities should give less weight to the stern warning issued to the suspect who had not admitted to the original offence or accepted the stern warning because this suspect should not be deemed to have committed the original offence. Admittedly, this approach is not entirely satisfactory. As such, it is this author’s view that having a system of issuing a stern warning only after a suspect has admitted to the crime or accepted the stern warning would remove this uncertainty.

 

Effects of Stern Warnings on Court Proceedings

 Although a stern warning should rightly not be equated as a criminal conviction since it is an extra-judicial process that is not grounded upon a clear statutory basis, local cases have shown that a stern warning may still be relevant in judicial proceedings as a criminal antecedent for sentencing and for related civil claims.

In the local reported criminal cases, it would appear that the Prosecution and the Courts have regarded stern warnings as relevant for the purposes of sentencing. A summary of how the Courts have treated stern warnings in criminal cases is set out below:

– In the Prosecution’s appeal against sentence before the High Court in PP v Siew Boon Loong[2005] 1 SLR(R) 611, it was submitted by the Prosecution that the accused person’s criminal antecedents included a charge for attempted lurking house-trespass by night and for which he was given a stern warning. The High Court accepted this as an antecedent in its judgment.

– In sentencing a juvenile offender in PP v WG[2008] SGJC 2, the Juvenile Court did not treat him as a first offender because he was previously given two stern warnings by the police, one for an offence of mischief by fire and the other for inhalant abuse.

– In PP v Muhammad Irwan Spykerman[2009] SGDC 122, the District Court considered, for the purpose of sentencing, that the offender’s previous antecedents included the stern warning that he was given by a security officer of a shopping mall for stealing chocolates and a separate warning by the police for his involvement in committing a sexual act against the order of nature.

– In PP v Yap Rogers[2009] SGDC 146, the District Court considered it “significant” that the accused was previously given a stern warning for similar offences in arriving at a custodial sentence although the Court did (rightly, it is submitted) make it clear that he was regarded as a first offender.

– In arriving at a sentence against the accused person in PP v Tan Hiang Seng[2012] SGDC 484, the District Court regarded the stern warning given by the police to the accused person for an offence of stealing his mother’s identity card as an aggravating factor.

The above cases mark a recent trend whereby the criminal Courts do consider stern warnings and in some cases, even to the extent of treating them as criminal antecedents, not unlike a criminal conviction. This is worrying, especially when there appears to be no close examination by the Courts on how the stern warnings came to be issued for these cases. For example, if the stern warning was issued without any admission of the offence or the accused person had not accepted the stern warning, it is submitted that it would be incorrect in principle to afford weight to the stern warning and regard it as a criminal antecedent. Even if the accused person had admitted to the offence or accepted the stern warning, it may also be relevant to know if he had given informed consent and whether he had the benefit of legal advice before doing so.

 

Other Effects Of Stern Warnings

Although it is clear that stern warnings do not amount to criminal convictions and will not be recorded as a criminal record under the Registration of Criminals Act, records of stern warnings are maintained by the police. Unlike a record of a conviction kept in the Register of Criminals for a less serious crime which is to be considered as spent if the person stays clean after five years pursuant to the Registration of Criminals Act, it is unknown if a record of stern warning is similarly rendered spent after a specified period.

In the absence of any published literature by the authorities on stern warnings, it is not known how records of stern warning are shared in Singapore among Government departments or even private bodies to the detriment of the warned individual.11 Consider the unclear effect of a stern warning in the following scenarios:

– If the police issued a stern warning for an allegation of maid abuse, would such information be shared with the Ministry of Manpower and relied upon by the Ministry to prohibit the warned individual from hiring a maid?

– If a warned individual applies for employment with the public service, would a stern warning record for a minor offence be considered and held against him?

– If a warned individual applies for work or visit passes or permanent residency, would the authorities access his stern warning record for taking part in a public protest without a permit and consider it detrimentally against him?

If negative effects do apply in the above scenarios, it is only fair that they are spelt out to the suspect to consider whether to accept the stern warning or if his acceptance is not required, to challenge it by appropriate means.

 

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