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ABSTRACT
The Public Prosecutor has a role to play in assisting the courts in sentencing. However, the extent of this role remains controversial with different jurisdictions drawing the line at different points. It is generally accepted that the Public Prosecutor, as a member of the Executive, should not be empowered to determine the sentence, as doing so would violate the doctrine of the separation of powers. This article examines the role of the Public Prosecutor in sentencing in the context of drug trafficking offences that carry the death penalty in Singapore. The Government has abolished the mandatory death penalty and replaced it with discretionary sentencing when certain conditions are met, one of which is that the Public Prosecutor has certified that the offender has rendered substantive assistance in disrupting drug trafficking activities. This discretionary power is largely protected from judicial review, raising an important constitutional question pertaining to the separation of powers.
Acknowledgements
I would like to thank my research assistant, Ms Andrea Ong, for her valuable assistance. An early version of this paper was presented at the International Institute for the Sociology of Law, Onati, at a workshop on ‘The Role of the Prosecutor Internationally and Domestically’ in 2016, and I am grateful to participants at the workshop for their feedback. A revised version of the paper was subsequently presented at a research seminar at the Faculty of Law, NUS, and I am grateful to colleagues for their feedback, in particular to Ms Swati Jhaveri and Ms Cheah Wui Ling.
Notes on contributor
Kumaralingam Amirthalingam is a Professor at the National University of Singapore.
Notes
1 See eg Christmas Humphreys, ‘The Duties and Responsibilities of Prosecuting Counsel’ [1955] Criminal Law Review 739, 747.
2 See eg Andrew Ashworth, ‘Prosecution and Procedure in Criminal Justice’ [1979] Criminal Law Review 480.
3 Julia Fionda, Public Prosecutors and Discretion: A Comparative Study (Clarendon Press 1995) 3.
4 The full text of s 33B is set out below at text following n 107.
5 Misuse of Drugs Act (Cap 184, Rev Ed 2008) s 33B(4).
6 The evolving role of the Public Prosecutor in sentencing was set out in a recent speech by the Deputy Attorney-General of Singapore: Hri Kumar Nair SC, ‘The Prosecutor's Role as Guardian of the Public Interest in Sentencing’ (Sentencing Conference, Singapore, 27 October 2017) <www.agc.gov.sg/newsroom/speeches/newsitem/keynote-address-by-deputy-attorney-general-hri-kumar-nair-s.c.-at-the-sentencing-conference-2017-review-rehabilitation-and-reintegration> accessed 4 January 2018.
7 See Ian Grenville Cross, ‘Focus on the Discretion Whether to Prosecute’ (1998) 28 Hong Kong Law Journal 400, 403–404.
8 See Evan Perez and Jeremy Diamond, ‘Trump Fires acting AG after she declines to defend travel ban’ CNN (31 January 2017) <edition.cnn.com/2017/01/30/politics/donald-trump-immigration-order-department-of-justice> accessed 19 May 2017.
9 For a comparative survey of statutory mechanisms designed to ensure prosecutorial independence, see Bruce A MacFarlane, ‘Sunlight and Disinfectants: Prosecutorial Accountability and Independence through Public Transparency’ (2001) 45 Criminal Law Quarterly 272. Although independent, the Director of Public Prosecutions remained under the supervision of the Attorney-General who was accountable to Parliament.
10 The United Kingdom is possibly the most progressive, with detailed guidelines and policies published online: <www.cps.gov.uk/legal-guidance/prosecution-policy-manual-guidance> accessed 3 March 2018.
11 The Crown Prosecution Service issues detailed guidance on selected offences and areas relevant to prosecutors. The Code and guidance are publicly available online: <www.cps.gov.uk/prosecution-guidance> accessed 26 December 2017.
12 The Director of Public Prosecutions is required under s 10 of the Prosecution of Offences Act 1985 to issue a Code for Crown Prosecutors setting out general guidance for Crown Prosecutors.
13 The Attorney-General's Chambers of Singapore has published its reasons for not publishing its guidelines: <www.agc.gov.sg/legal-processes/publication-of-prosecution-guidelines> accessed 1 November 2017.
14 Tan Boon Teik, ‘The Attorney-General’ (1988) 2 Malayan Law Journal viii.
15 Chapter 2 of the Constitution of the Republic of Singapore.
16 Ramalingam Ravinthran v Attorney-General [2012] SGCA 2 (Singapore Court of Appeal) [44].
17 Tan Boon Teik (n 14) 2.
18 For a comprehensive treatment of the role of the Attorney-General, see JLJ Edwards, The Law Officers of the Crown: A Study of the Offices of Attorney-General and Solicitor-General of England with an Account of the Office of the Director of Public Prosecutions in England (Sweet & Maxwell 1964); The Attorney-General, Politics and the Public Interest (Sweet & Maxwell 1984).
19 Daniel S Medwed, ‘The Prosecutor as Minister of Justice: Preaching to the Unconverted from the Post-Conviction Pulpit’ (2009) 84 Washington Law Review 35.
20 In a recent speech, the Attorney-General highlighted these challenges, reiterating that the role of the Public Prosecutor was the guardian of the public interest: Lucien Wong, ‘Prosecution in the Public Interest’ (Singapore Law Review Lecture 2017) <www.agc.gov.sg/docs/default-source/default-document-library/singapore-law-review-annual-lecture-2017---prosecuting-in-the-public-interest.pdf> accessed 2 February 2018.
21 Judicious use of prosecutorial discretion allows prosecutors to drop some matters by taking no action or disposing of them by way of warning or diversions.
22 See generally Kumaralingam Amirthalingam, ‘Prosecutorial Discretion and Prosecution Guidelines’ [2013] Singapore Journal of Legal Studies 50.
23 On the quasi-judicial function of the Attorney-General as Public Prosecutor, see generally Edwards, The Law Officers of the Crown (n 18); AHY Chen, ‘The Powers and Accountability of the Attorney-General’ (1990) 20 Hong Kong Law Journal 6.
24 David Plater and Lucy Line, ‘Has the “Silver Thread” of the Criminal Law Lost its Lustre? The Modern Prosecutor as a Minister of Justice’ (2012) 31 University of Tasmania Law Review 55.
25 The separation thesis can be traced to the enlightenment period with the writings of John Locke and Baron de Montesquieu. Today, even though there is criticism of the tripartite conception of the separation of powers being outdated, there is general agreement that there must be some constraint on State powers through a suitable system of checks and balances. See generally Kevin YL Tan, ‘Law, Legitimacy and Separation of Powers’ (2017) 29 Singapore Academy of Law Journal 941.
26 See generally Peter L Strauss, ‘Formal and Functional Approaches to Separation of Powers Questions—A Foolish Inconsistency?’ (1987) 72 Cornell Law Review 488.
27 William N Eskridge Jr, ‘Relationships Between Formalism and Functionalism in Separation of Powers Cases’ (1998) 22 Harvard Journal of Law and Public Policy 21, 22.
28 Rachel E Barkow, ‘Separation of Powers and the Criminal Law’ (2006) 58 Stanford Law Review 989, 991.
29 See Victor V Ramraj, ‘Terrorism, Security, and Rights: A New Dialogue’ [2002] Singapore Journal of Legal Studies 1.
30 Li-ann Thio, ‘Rule of Law within a Non-Liberal “Communitarian” Democracy: The Singapore Experience’ in Randall Peerenboom (ed), Asian Discourses of Rule of Laws: Theories and Implementation of Rule of Law in Twelve Asian Countries with Comparisons to France and the US (Routledge Curzon 2004) 180, 184.
31 James McCauley Landis, ‘The Administrative Process (1938)’ in William W Fisher III, Morton J Horwitz and Thomas A Reed (eds), American Legal Realism (Oxford University Press 1993) 159, 163.
32 Singapore has clearly adopted the crime control model with statements from a former Attorney-General and Chief Justice, Chan Sek Keong, and another former Attorney-General, Vijaya Kumar Rajah: Chan Sek Keong, ‘The Criminal Process—The Singapore Model’ (1995) 17 Singapore Law Review 433; Vijaya Kumar Rajah, ‘Judicial Review—Politics, Policy and the Separation of Powers’ (Lecture at Singapore Management University, 24 March 2016). See generally Kumaralingam Amirthalingam, ‘Criminal Justice and Diversionary Programmes in Singapore’ (2013) 24 Criminal Law Forum 527, 529–32.
33 This duality is attributed to Herbert L Packer, ‘Two Models of Criminal Justice’ (1984) 113 University of Pasadena Law Review 1.
34 Barkow (n 28). See also Peter Cane, Controlling Administrative Power: An Historical Comparison (Cambridge University Press 2016) especially ch 13.
35 Barkow (n 28) 993.
36 See generally Jack Tsen-Ta Lee, ‘Fundamental Constitutional Concepts and the Roles of the Branches of Government’ in Gary Chan Kok Yew and Jack Tsen-Ta Lee (eds), The Legal System of Singapore: Institutions, Principles and Practices (LexisNexis 2015) 47; Michael Hor, ‘The Independence of the Criminal Justice System in Singapore’ [2002] Singapore Journal of Legal Studies 497.
37 For a sociological critique of this saga, see Lynette J Chua, ‘The Power of Legal Processes and s 377A of the Penal Code’ [2012] Singapore Journal of Legal Studies 457.
38 A point noted by former Attorney-General, Walter Woon, now a Professor at the Faculty of Law, National University of Singapore. He stated at a recent event, ‘So we have a very dangerous precedent here where the political authorities are saying to the Public Prosecutor—who is supposed to be independent—there are some laws that you don't enforce … I find that very uncomfortable.’ See W Sim, ‘Top Lawyers Debate Repealing s 377A at Human Rights Session’ The Straits Times (18 September 2014).
39 Lim Meng Suang v Attorney-General [2015] SGCA 53 [77], [189]. Compare this with a later decision concerning detention without trial where the Court of Appeal reasserted the role of the Judiciary as the final arbiter of the legality of government action: Tan Seet Eng v Attorney-General [2015] SGCA 59.
40 See generally Rachel E Barkow, ‘Recharging the Jury: The Criminal Jury's Constitutional Role in an Era of Mandatory Sentencing’ (2003) 152 University of Pasadena Law Review 33.
41 Barkow (n 28) 1038.
42 Chng Suan Tze v Minister for Home Affairs [1988] SGCA 16; Law Society of Singapore v Tan Guat Neo Phyllis [2007] SGHC 207 (Singapore High Court).
43 Phyllis Tan (n 42).
44 This was reaffirmed in Tan Seet Eng (n 39).
45 See eg Quek Hock Lye v PP [2012] SGCA 25.
46 PP v Norzian bin Bintat [1995] 3 SLR(R) 105 (SGCA); Cheng Siah Johnson v PP [2002] SGHC 84.
47 PP v Knight Glenn Jeyasingam [1999] 1 SLR(R) 1165 (SGHC).
48 Phyllis Tan (n 42) [149], citing, Teh Cheng Poh v PP [1979] 1 MLJ 50 (Penang High Court); Sim Min Teck v PP [1987] SLR(R) 65 (SGCA); Thiruselvam s/o Nagaratnam v PP [2001] SGCA 13.
49 Abuse of process is defined in Phyllis Tan (n 42) [130] as ‘the use of the judicial process for a purpose for which it is not intended or in circumstances where the extraneous purpose is the dominant purpose for its use’.
50 It should be noted that, even in the United Kingdom, this power is exercised sparingly, with courts respecting the independence of the Public Prosecutor over prosecutorial decisions. See eg R v W(P) [2016] EWCA Crim 745 (England and Wales Court of Appeal).
51 Phyllis Tan (n 42) [145].
52 ibid [28]–[29] (emphasis added).
53 Quek Hock Lye (n 45) [51].
54 See Jaclyn L Neo, ‘All Power has Legal Limits—The Principle of Legality as a Constitutional Principle of Judicial Review’ (2017) 29 Singapore Academy of Law Journal 667, 673–76.
55 ibid 676–78. See also Gary Chan Kok Yew, ‘Prosecutorial Discretion and the Legal Limits in Singapore’ (2013) 25 Singapore Academy of Law Journal 15, 20.
56 See eg R v DPP, ex p Kibilene [2000] 2 AC 326 (UK House of Lords).
57 See Grace Morgan, ‘The Presumption of Constitutionality and the Right to Equality in the Granting of Certificates of Substantive Assistance under Section 33B of the Misuse of Drugs Act: Muhammad Ridzuan bin Mohd Ali v Attorney-General [2015] 5 SLR 1222’ [2016] Singapore Journal of Legal Studies 344.
58 Under a red light approach, the courts play a more robust role in scrutinising executive and legislative action to prevent the abuse of discretionary powers that threaten the rule of law. Under a green light approach, the Judiciary takes a slightly more deferential approach, highlighting that as a co-equal to the Executive and Legislature, it should not presume to have a superior power to check the other branches of Government. See Swati Jhaveri, ‘Localising Administrative Law in Singapore: Embracing Inter-Branch Equality’ (2017) 29 Singapore Academy of Law Journal 828, 836.
59 Chan Sek Keong, ‘Judicial Review—From Angst to Empathy’ (2010) 22 Singapore Academy of Law Journal 469, 480.
60 The mandatory death penalty in Singapore is used almost exclusively for murder and drug offences.
61 Noted in Michael Hor, ‘Singapore's Death Penalty: The Beginning of the End?’ in Roger Hood and Surya Deva (eds), Confronting Capital Punishment in Asia: Human Rights, Politics and Public Opinion (Oxford University Press 2013) 163. This practice was also referred to by Singapore's Minister for Law in an interview with Yahoo!, where he stated,
A lot of people don’t realise this, but in a significant number of cases this discretion has been exercised and a charge for 14.99 grammes has been brought in court. The AG only proceeds on cases where he feels the death penalty really is merited—on the facts.
62 See Peggy Pao-Keerthi Pei Yu, ‘Looking Beyond Prospective Guidance: Sentencing Discretion in Capital Drug Framework and Lessons from the US’ (2014) 26 Singapore Academy of Law Journal 520.
63 The same approach is seen for other quantities triggering the death penalty. For example, the not less than 499.9 grams of cannabis charge or the not less than 249.9 grams of methamphetamines charge. See Suventher Shanmugam v PP [2017] SGCA 25 where the Court of Appeal reviewed such cases and noted that once the Prosecution chose to proceed with a lower quantity to avoid the death penalty, the sentence should be based on the quantity reflected in the charge and not the actual quantity trafficked.
64 These decisions are made on the basis of operational intelligence and an assessment by the Public Prosecutor as to whether the accused should be spared the death penalty. In effect, the Public Prosecutor decides on whether the accused should face the mandatory death penalty by determining the charge.
65 Ramalingam Ravinthran (n 16); Yong Vui Kong v PP [2012] SGCA 11; Quek Hock Lye (n 45).
66 Ramalingam Ravinthran (n 16); Quek Hock Lye (n 45).
67 Yong Vui Kong (n 65).
68 For detailed discussion of these cases, see Chen Siyuan, ‘The Limits on Prosecutorial Discretion in Singapore: Past, Present and Future’ [2013] International Review of Law 5; Gary Chan Kok Yew (n 55).
69 Ramalingam Ravinthran (n 16).
70 Yong Vui Kong (n 65).
71 A discontinuance not amounting to an acquittal does not prevent the Public Prosecutor from reinstating the charges against the offender: Criminal Procedure Code (Cap 68, Rev Ed 2012). It should be noted that the offender in this case was detained under the Criminal Law (Temporary Provisions) Act (Cap 67, Rev Ed 2000).
72 Quek Hock Lye (n 45).
73 The leading case is Prabagaran a/l Srivijayan v PP [2017] 1 SLR 173 (SGCA), discussed in more detail below at text to n 124–34.
74 Mike McConville, ‘Politicians and Prosecutorial Accountability in Hong Kong’ (2007) 36 Common Law World Review 355, 359–60.
75 Andrew Britton, ‘Pressing for Sentence? An Examination of the New Zealand Crown Prosecutor's Role in Sentencing’ (2016) <ssrn.com/abstract=2996867> accessed 5 February 2018.
76 Sergey Vasiliev, ‘Trial’ in Luc Reydams, Jan Wouter and Cedric Ryngaert (eds), International Prosecutors (Oxford University Press 2012) 700, 784; Jonathan Rogers, ‘Restructuring the Exercise of Prosecutorial Discretion in England’ (2006) 26 Oxford Journal of Legal Studies 775, 782.
77 It should be noted that prosecutors in civilian jurisdictions have always played an active role at the sentencing stage: Vasiliev (n 76) 784.
78 The High Court of Australia in Barbaro v The Queen; Zirilli v The Queen (2014) 253 CLR 58 recently overruled the earlier Victorian case of R v MacNeil-Brown (2008) 20 VR 677 (Supreme Court of Victoria), which held that the Prosecution should make submissions on the available range of sentences. The High Court expressed the view that Prosecution's submissions on sentence were merely statements of opinion and not facts or law, and thus not appropriate matters to be taken into account by the judge.
79 Corrective training is imposed on certain repeat offenders above the age of 18. It involves long periods of incarceration (between 5 and 14 years) with a severe corrective training programme.
80 Preventive detention is imposed on certain recalcitrant offenders above the age of 30 who in the court's view need to be incarcerated for a significant period (between 7 and 20 years) for the public's safety.
81 A probation does not count as a criminal conviction and the offender is placed under the supervision of a probation officer.
82 Reformative training is used for offenders below the age of 21. It involves a rehabilitative programme in detention for at least 18 months.
83 Community sentences include mandatory treatment orders, day reporting orders, community work orders, community service orders and short detention orders (up to 14 days).
84 See generally Kumaralingam Amirthalingam, ‘Criminal Justice and Diversionary Programmes in Singapore’ (2013) 24 Criminal Law Forum 527.
85 Chief Justice Sundaresh Menon, ‘Opening Address’ (Sentencing Conference, Singapore, 9 October 2014) <www.supremecourt.gov.sg/docs/default-source/default-document-library/sjc/opening-address---sentencing-confererence-on-9-october-(101014---check-against-delivery).pdf> accessed 5 July 2016.
86 ibid [38].
87 PP v Lim Choon Teck [2015] SGHC 265. The case involved a cyclist rashly endangering others by using a pedestrian path. The Prosecution had submitted to the court that a custodial sentence of two to four weeks would be appropriate, but the court sentenced the offender to eight weeks’ imprisonment. The Prosecution successfully appealed to reduce the sentence, and the Attorney-General, in a media statement, said, ‘It is a crucial aspect of the administration of criminal justice in Singapore that all offenders are appropriately punished—neither in a manifestly inadequate nor in a manifestly excessive manner—to ensure justice is done. All stakeholders in our criminal justice system, including the Attorney-General's Chambers, shoulder this heavy responsibility to ensure fairness and proportionality in the punishment meted out.’ See ‘PP v Lim Choon Teck: Prosecution's Appeal against Manifestly Excessive Sentence’ (18 September 2015) Attorney-General's Chambers Media Statement <www.agc.gov.sg/docs/default-source/newsroom-doucments/media-releases/2015/agc-media-statement_pp-v-lim-choon-teck_prosecution's-appeal_18-sept.pdf> accessed 11 April 2018.
88 This issue was explored two decades ago through a comparative study of selected European jurisdictions: Fionda (n 3).
89 This was recently reaffirmed forcefully by the Chief Justice in Janardana Jayasankarr v PP [2016] SGHC 161 [12].
90 The legislation is set out below at text after n 116.
91 See Andrew Ashworth, Sentencing and Criminal Justice (6th edn, Cambridge University Press 2015) ch 2.
92 DPP v Fitzgibbons [2014] IECCA 25 (Irish Court of Appeal); Barbaro v The Queen (n 78); DPP v Mollison (Jamaica) [2003] UKPC 6 (Privy Council); Mohammed Muktar Ali v The Queen [1992] 2 AC 93 (Privy Council); Hinds v The Queen [1977] AC 195 (Privy Council).
93 Deaton v Attorney-General and the Revenue Commissioners [1963] IR 170 (Supreme Court of Ireland).
94 See, for a recent reaffirmation, Ellis v Minister for Justice and Equality [2016] IEHC 234 (Irish High Court).
95 See the considered opinion of the House of Lords in R v Secretary of State for the Home Department, ex parte Anderson [2003] 2 AC 837.
96 Deaton (n 93) 182–83.
97 [2012] SGHC 163.
98 Section 33A(1) provides for an enhanced sentence of at least five years’ imprisonment and caning for offenders convicted of drug consumption with prescribed prior drug infringements.
99 The Director of the Central Narcotics Board is empowered under s 34(2) and (2A) of the Misuse of Drugs Act to order the supervision of persons reasonably suspected of being drug addicts for up to two years at an approved institution.
100 [2012] SGCA 49.
101 [1992] 2 AC 93 (Privy Council).
102 During the Second Reading of the Misuse of Drugs (Amendment) Bill, the Minister for Law reiterated that mandatory sentencing was solely within the province of Parliament and that no mitigating factors should be taken into account once the accused was caught trafficking in more than 15 grams of diamorphine. Otherwise, the drug suppliers would use couriers who ‘fit the profile’ for mitigation and this would lead to the de facto abolition of the death penalty. Singapore Parliamentary Debates, Official Reports, Vol 89, sitting No 11 (14 November 2012) (Minister for Law).
103 Nguyen Tuong Van v PP [2004] SGCA 47.
104 Dinesh Pillai (n 100) [23] (emphasis added).
105 For an overview of Singapore's approach to drugs, including its historical and socio-political context, see Tim Lindsey and Pip Nicholson, Drugs Law and Legal Practice in Southeast Asia: Indonesia, Singapore and Vietnam (Hart Publishing 2016) ch 4.
106 Penal Code (Amendment) Act (No 32 of 2012); Misuse of Drugs (Amendment) Act 2012 (No 30 of 2012).
107 Prabagaran a/l Srivijayan (n 73) [37].
108 Emphasis added.
109 For an overview of some of the challenges with the new regime, see Chen Siyuan, ‘The Discretionary Death Penalty for Drug Couriers in Singapore: Four Challenges’ (2016) 20 International Journal of Evidence and Proof 49.
110 [2014] 1 SLR 336 (SGHC).
111 The Criminal Reference is provided for by s 397 of the Criminal Procedure Code (Cap 68, Rev Ed 2012) to enable questions of law of public interest to be referred to the Court of Appeal for determination.
112 PP v Chum Tat Suan [2014] SGCA [81] (Woo Bih Li and Tay Yong Kwang JJ).
113 ibid [32]–[38] (Chao Hick Tin JA). Following the Criminal Reference, the case was remitted to the High Court where Choo J found that the offender had acted only as a courier.
114 PP v Chum Tat Suan [2016] SGHC 27. The Public Prosecutor eventually issued the certificate, but ironically the offender, then aged 67, instructed his counsel that he preferred the death penalty to life imprisonment. Choo J imposed life imprisonment as the circumstances did not warrant the death penalty.
115 ibid [9].
116 This observation was subsequently endorsed by the Court of Appeal in Prabagaran a/l Srivijayan (n 73) [65].
117 PP v Mohd Taib bin Ahmadi [2016] SGHC 124.
118 ibid [22].
119 Muhammad bin Abdullah v PP [2017] 1 SLR 427 (SGCA) [62].
120 [2015] SGCA 53.
121 Requiring actual disruption to drug trafficking activities is arguably unfair as the accused has no control over how his or her assistance is used by the authorities to disrupt drug trafficking activities.
122 Muhammad Ridzuan bin Mohd Ali v Attorney-General (n 120) [48]. It is interesting to note that the court in the s 33B cases flirted with administrative review language, suggesting that the Public Prosecutor's decision could be subject to review on broader administrative review grounds, unlike the earlier decisions (see text following n 73) on the exercise of prosecutorial discretion with respect to charging where the courts appeared to draw a brighter line with respect to judicial review.
123 ibid [66].
124 During the Second Reading of the Misuse of Drugs (Amendment) Bill, the Minister for Home Affairs made clear that the underlying reason for the substantive assistance proviso was not mercy but to add to operational efficacy. It was to incentivise accused persons to provide information. Singapore Parliamentary Debates, Official Reports, Vol 89, sitting No 11 (14 November 2012).
125 [2017] 1 SLR 173 (SGCA).
126 ibid [77] (emphasis added).
127 Indeed, in no case where the Public Prosecutor has issued the certificate of substantive assistance has a court in Singapore imposed the death penalty, sentencing the offender to life imprisonment instead.
128 A criminal motion is a process by which any party may make an application to the court for particular orders pertaining to bail, disclosure and appeals, among other matters. For a concise summary, see the explanation on the Supreme Court website: <www.supremecourt.gov.sg/rules/court-processes/criminal-proceedings/types-of-criminal-proceedings/criminal-motions> accessed 5 February 2018.
129 Ong Ah Chuan v PP [1981] AC 648.
130 Prabagaran a/l Srivijayan (n 73) [74]–[76], referring to a paper by Arie Freiberg and Sarah Murray, now published as ‘Constitutional Perspectives on Sentencing: Some Challenging Issues’ (2012) 36 Criminal Law Journal 335, and the High Court jurisprudence cited therein.
131 ibid [72].
132 878 F 2d (2nd Cir, 1989) 92.
133 For a recent critique of the United States criminal justice system and the institutional bias of the Department of Justice and its prosecutors, see Rachel E Barkow and Mark Osler, ‘Designed to Fail: The President's Deference to the Department of Justice in Advancing Criminal Justice Reform’ (2017) NYU Public Law and Legal Theory Working Paper 16/2017 <ssrn.com/abstract=2961462> accessed 18 May 2017.
134 The Ministry of Law announced in 2014 that it would introduce a formal plea-bargain framework, but this has not yet materialised. At present, there are mechanisms by which an accused person might explore the pros and cons of entering a guilty plea through the pre-trial conference, criminal case management scheme and the criminal case resolution. The criminal case resolution is presided over by a District Judge.
135 Criminal Procedure Code (Cap 68, Rev Ed 2012) s 227(3).
136 United States Sentencing Commission 2016 Guidelines Manual, s 5K1.1(1).
137 See ‘Let Judicial Discretion in Sentencing Lead to the Total Abolition of the Death Penalty’ (5 December 2017) Malaysian Bar press release <www.malaysianbar.org.my/press_statements/press_release_%7C_let_judicial_discretion_in_sentencing_lead_to_the_total_abolition_of_the_death_penalty.html> accessed 5 February 2017.
138 Dangerous Drugs (Amendment) Act 2017, s 2A(d).