Justice Vincent Hoong: Introductory Remarks delivered at the Sentencing Conference 2022

SENTENCING CONFERENCE 2022: INTRODUCTORY REMARKS

Sentencing Frameworks: Instructive, Communicative, Consistent Outcomes

The Honourable the Chief Justice Sundaresh Menon
Distinguished speakers and guests,
Colleagues,
Ladies and Gentlemen.

Good morning. It gives me great pleasure to welcome you to the Sentencing Conference 2022, jointly organised by the State Courts of Singapore and the Singapore Academy of Law.
This is the third edition of the conference and the first since the onset of the Covid-19 pandemic. The theme of the inaugural conference in 2014 was “Trends, Tools & Technology”. Topics on the art of sentencing, plea bargaining and developments in sentencing tools were discussed. In 2017, the conference focused on the review of sentencing approaches, the rehabilitation of offenders and the re-integration of ex-offenders.
The theme of this conference is “Sentencing Frameworks: Instructive, Communicative, Consistent Outcomes”. We are honoured by your presence and delighted that you have taken time from your busy schedules to join us.
Over the next two days, we will hear from an outstanding panel of speakers and presenters. In the main, they will touch on three topical areas of criminal sentencing. Let me briefly outline them.
For the larger part of today, the focus will be on frameworks that guide our courts in Singapore. Judges strive for a fair and just outcome in every case. However, the answer to the question of what the justice of the case requires is not always straightforward. Oftentimes, the demands of justice may pull in different directions. For instance, a sentencing judge must try to achieve “individualised justice in that the sentence fits both the offence and the offender”.⁽¹⁾ In other words, judges must be sensitive to the particular facts and circumstances prevailing in each case. On the other hand, “another key aspect of sentencing has also been to ensure consistency in both outcome and approach”. ⁽²⁾ Like cases should be treated alike. This requires judges to keep an eye on the broader sentencing tapestry weaved from what is burgeoning into a vast body of criminal case precedents. These demands often require judges to perform a delicate balancing act.
To assist judges, the Singapore appellate courts have developed sentencing frameworks. The term “sentencing frameworks” refers to an analytical frame of reference which assists judges in pegging where the balance of justice should lie. Sentencing frameworks, if carefully crafted and properly applied, can also assist prosecutors, defence lawyers, accused persons and the wider public, in appreciating how sentencing outcomes are reached. They provide guidance on the relevance of sentencing factors, how these factors are to be weighed, as well as the overall sentencing outlook that coheres with the backdrop of the legislative intent and public policy considerations underpinning the offence in question.
As those familiar with Singapore’s criminal jurisprudence would know, our sentencing frameworks are tailored to the offence in question. Given the myriad of offences that exist in our penal laws, it is thus not surprising that sentencing frameworks vary both in form and analytical complexity. While you will hear more on this from the speakers and panellists, please let me highlight two aspects that have grown in significance of late.
The first has to do with scope. The use of sentencing frameworks has been applied to an increasingly wide spectrum of cases within the criminal domain. For many areas of criminal law, our courts have increasingly shifted from a primarily precedent-based approach to a principle-based approach. This is not to say that we strive for sentencing frameworks for all offences. Indeed, our courts have on many occasions declined to set out sentencing frameworks, even when invited by the prosecution or defence to do so. In some instances, this is because the offence in question may be committed in a multitude of ways, making it difficult to identify common sentencing factors.⁽³⁾There may also be an insufficient body of sentencing precedents for the offence in question to assist the court in crafting a framework although this factor may not be an absolute bar to formulating a sentencing framework, as I observed in a recent judgment.⁽⁴⁾ This conference thus gives us a valuable opportunity to pause and reflect. Has the expansion of sentencing frameworks been a boon or a bane? When would it be useful to establish a sentencing framework, as opposed to adhering to a case-by-case approach that prizes flexibility over predictability?
The second noteworthy aspect is the type of sentencing frameworks. Sentencing frameworks range from the relatively simple, such as the “single starting point” approach, to models that are more sophisticated.⁽⁵⁾For example, our courts have developed a sentencing framework known as the “Logachev-hybrid approach”, which involves two stages and five steps.⁽⁶⁾ It will be interesting to explore the underlying philosophy when a particular approach is to be used, as well as to discern the views of participants on whether the different types of sentencing approaches today fit the cases to which they have been applied.
To help us explore these and other related issues, we are honoured to have Chief Justice Sundaresh Menon deliver the keynote address this morning. After the morning break, Justice Steven Chong, a Justice of Appeal will deliver a special guest lecture entitled “Sentencing Frameworks: To Guide or Not to Guide”. This will be followed by a panel discussion comprising Justice Chong, Justice See Kee Oon, Deputy Attorney-General Hri Kumar Nair SC and Mr Tan Chee Meng SC.
After the lunch break, there will be a plenary session on the evolution of sentencing in Singapore, with a particular focus on how our criminal jurisprudence has evolved between 2017 and 2022. We will hear from Mr Mohamed Faizal Mohamed Abdul Kadir SC, Deputy Chief Prosecutor, Attorney-General's Chambers, Assistant Professor Benny Tan, Faculty of Law, National University of Singapore, Mr Kow Keng Siong, District Judge, State Courts, Singapore and Mr Chenthil Kumarasingam, Partner, WithersKhattarWong LLP. This session will be moderated by Principal District Judge Victor Yeo.
Tomorrow morning, Deputy Attorney-General Mr Tai Wei Shyong SC will deliver a keynote address on “Sentencing: Public Interest, Policy and Accountability”. In his address, DAG Tai will touch on the Prosecution’s approach to assisting the court in sentencing.
The next part of the conference will focus on special classes of offenders. There will be two components.
First, the services available to youthful offenders and offenders who suffer from mental health issues, both before and after sentencing. As judges, we are always mindful that the passing of an appropriate sentence merely marks the end of one process, while begetting the start of another. In the broader spirit of access to justice, the criminal justice system must be viewed as a holistic one that traverses beyond bounds of the investigative, prosecutorial and adjudicatory processes, as well as the punitive consequences that follow. Each of these processes should be viewed as tools to achieve the higher order goal of deterring would-be criminals and reforming offenders. To this end, the experiential learning sessions are designed to help us better understand the programmes and services available to assist youthful offenders and those who suffer from mental health issues:

i) “Experiential Learning 1” will touch on the Probation and Rehabilitation Service provided by the Ministry of Social and Family Development.

ii) “Experiential Learning 2” will touch on the principles of mental health intervention that an offender with mental health issues would receive pre-sentencing, post-sentencing and upon completion of the sentence.

iii) Finally, in “Experiential Learning 3”, the Singapore Prison Service will share its rehabilitative and reintegration approaches and the evidence that undergirds them.
The second component focuses on the actual sentencing of youthful offenders and offenders with mental health issues. For these offenders, the justice of the case may require the weighing scales to be adjusted accordingly. Considerations of rehabilitation and the prevention of re-offending may sometimes feature more prominently than deterrence or retribution. A custodial sentence may not lend itself to achieving the desired effect, given the predisposition of the specific accused person at hand. Our judges are thus empowered to impose sentences that better meet the objectives of rehabilitation and crime prevention. These include probation, community sentences and reformative training.
To explore these sentencing options from a legal, practical and operational perspective, there will be a plenary session moderated by District Judge Kessler Soh. We can look forward to hearing from key stakeholders Mr Senthilkumaran Sabapathy from the Ministry of Law, Ms Diana Ngiam from the Criminal Bar, Dr Christopher Cheok from the Institute of Mental Health, Ms Carmelia Nathen from the Ministry of Social and Family Development and Ms Karen Lee from the Singapore Prison Service.
The final part of the conference will address technology: how it has affected, and will continue to affect, criminal justice. The acceleration of technology is one of the hallmarks of the 21^st century. Technology has permeated every aspect of our lives. Its impact on the legal sector, and more particularly, criminal justice, is thus to be expected. This should be embraced, albeit thoughtfully. There will always be tasks which require deliberation and inspiration. There will also be those that require us to tap on our inimitable human experiences. To that end, our courts have eschewed an approach to sentencing that is overly mathematical or rigidly algorithmic.⁽⁷⁾Having said that, there are still tasks that machines are more suited to perform, for example, gathering and analysing data. Technology, if employed judiciously, can effectively assist in the task of sentencing, by enabling us to focus on what we, as humans, are better at, whether as law enforcement officers, prosecutors, defence lawyers, judges, prison officers or medical experts. The key is of course to know when and how to employ technology. How do we do this?
This will be addressed in the final plenary session, moderated by Principal District Judge Toh Yung Cheong. The distinguished panellists include Professor Julian Roberts of the Faculty of Law, University of Oxford, Professor Jesper Ryberg of the Department of Communication and Arts, Roskilde University, Assistant Professor Benjamin Chen of the Faculty of Law, University of Hong Kong and Mr Christopher Ong, Deputy Public Prosecutor and Senior Director of the Commercial and Technology Crimes Division, the Attorney-General’s Chambers. They will discuss current technological tools in sentencing and suggest how artificial intelligence may be used to assist those involved in the sentencing process and the criminal justice system. The panel will explore if there is room for ‘algorithmic justice’ and address difficult issues such as the ethical implications, the erosion of judicial discretion and the risk of biases which may be inherent in computer programmes.
Over the next two days, you can look forward to discourses that are as rich as they are insightful. Opinions will be voiced. There will be consensus and there will be differences. I am confident that you will gain from each perspective. On this note, I wish you a stimulating and engaging two days. Thank you.

⁽¹⁾See Public Prosecutor v Yeo Ek Boon Jeffrey and another matter [2018] 3 SLR 1080 (at [45]).
⁽²⁾ Sue Chang v Public Prosecutor [2022] SGHC 176 (at [43]).
⁽³⁾See, for example, Koh Yong Chiah v Public Prosecutor [2017] 3 SLR 447 (at [46]).⁽⁴⁾Sue Chang v Public Prosecutor [2022] SGHC 176 (at [48]).
⁽⁵⁾ For the five main approaches, see Ng Kean Meng Terence v Public Prosecutor [2017] 2 SLR 449 (at [26]).
⁽⁶⁾See Sue Chang v Public Prosecutor [2022] SGHC 176 (at [55]).
⁽⁷⁾ See Dinesh Singh Bhatia s/o Amarjeet Singh v Public Prosecutor [2005] 3 SLR(R) 1 where the High Court held (at [24]) that “[s]entencing is neither a science nor an administrative exercise. Sentences cannot be determined with mathematical certainty. Nor should they be arbitrary.”

Topic: Speech, Speeches