Lawyers weigh in on Iswaran's jail term: Unusual for judge to give longer sentence than sought
Lawyers told CNA that it is unusual for the judge to impose sentences higher than what was sought by the prosecution and defence, but that it happens once in a while.
by Lydia Lam · CNA · JoinSINGAPORE: In the latest of surprise moves made in the criminal case of former transport minister S Iswaran, a High Court judge imposed a jail term that was longer than what the prosecution and defence sought.
The jail term of 12 months was about six times the eight weeks sought by Iswaran's top legal team, and almost twice the six to seven months submitted by the prosecution, which was fronted by no less than a Deputy Attorney-General.
The jail term was for five proceeded charges comprising four counts of Section 165 for obtaining valuables from two businessmen linked to his official capacity, and one charge of obstructing justice by belatedly repaying the cost of a flight.
Another 30 charges under Section 165 were taken into consideration.
Across all charges, Iswaran admitted to obtaining S$403,300 worth of valuables over seven years from Singapore GP majority shareholder Ong Beng Seng and construction boss Lum Kok Seng.
These include tickets to musicals, Formula 1 events and football matches, as well as alcohol and a Brompton bicycle gifted to him for his 60th birthday.
CNA spoke to some lawyers and an academic on the implications or significance of the jail term imposed, and what it could mean.
UNUSUAL MOVE, BUT HAPPENS ONCE IN A WHILE
On Justice Vincent Hoong meting out a sentence longer than what both sides had sought, Mr Chooi Jing Yen said this "is unusual, but happens once in a while".
"The judge is meant to apply the law and mete out the sentence based on the charges and the facts of the case," he said.
"He is not bound by what parties submit. He is entitled to take the view that in any one case, the upper limit submitted by the prosecution is too low, or the lower limit submitted by the defence is too high."
Mr Chooi, who recently left Mr Eugene Thuraisingam's law firm to set up his own eponymous firm, said the prosecution has discretion only in terms of what charges are preferred.
Once this discretion is exercised and the accused is convicted, the judge is meant to be assisted by the prosecution and defence in the sentencing exercise, but is not bound to accept those arguments, said Mr Chooi.
Veteran lawyer Andy Yeo, who runs his own practice Andy Yeo Chambers, said he was surprised not by the severity of the sentence, but by how much more Justice Hoong had imposed compared with what was sought by both sides.
However, Mr Yeo - a former judicial officer and deputy public prosecutor - felt that the judge's decision was justified.
"I believe that Justice Hoong is justified in what he sees as a case to set down as a precedent for deterrence and clear signalling for any future instances," said Mr Yeo, who specialises in corporate governance and white collar crime.
He added that it was not usual for a judge to impose a sentence higher than what parties had asked for, and that the court in this case was clearly indicating its serious view of the offence.
"Given that there was no precedent, I thought that this in turn afforded the court a good opportunity to lay down what will be a clear decision on what it perceives to be a most serious case in terms of culpability, (compared with) the amount of gifts involved, (and) how (the offence) had arisen," said Mr Yeo.
Criminal defence lawyer Sunil Sudheesan from Quahe Woo & Palmer said such a move is "not seen often" and that the judge likely "wanted to lay down a marker for public servants".
Mr Adrian Wee, managing partner at Lighthouse Law, said it is "settled law" that the court is not bound by the sentencing position taken by parties, and has the discretion to mete out sentences higher or lower than the ranges proposed.
"However, in practice this is not common," said Mr Wee.
"Accused persons typically elect to take a certain course taking into account the prosecution's sentencing position and their likely sentence," he said. "An accused person who has less certainty over his likely sentence may be hesitant to plead guilty."
Mr Wee said it was also significant that the court took into account public statements made in the course of the case.
Iswaran had released statements in the beginning rejecting the allegations as false and asserting his innocence.
While unusual for the court to consider such statements, it was relevant in this case to the issue of remorse and Iswaran's assertion that he had intended to plead guilty from an early stage, said Mr Wee.
Mr Melvin Loh, a senior lecturer of Law Programmes at the Singapore University of Social Sciences, noted the aggravating factors in this case.
"In this case, the judge noted several aggravating factors, namely the duration of the commission of the offences, the high office held by the accused as well as the trust that was placed in him, which in turn led to the great harm that was caused to public interest as well as to public institutions by his actions," noted Mr Loh.
Mr Loh also pointed to how the judge considered Iswaran's public service and contributions as "a neutral factor" and how his voluntary disgorgement was unlikely to adequately remedy the harm done to public interest.
"Having considered the numerous aggravating factors and lack of substantial mitigating factors in the circumstances, it is understandable why the court disagreed with the lower sentencing submissions proposed by prosecution and defence, and imposed a higher sentence in the circumstances," Mr Loh said.
NO PRECEDENTS FOR SECTION 165
Section 165 is a rare offence, with only three known prosecutions pre-independence, relating to police officers who took bribes.
Because of that, there was no sentencing framework to guide the court.
Mr Wee said as there are no previous reported decisions on Section 165, it is "difficult to say whether this sentence falls on the harsher part of the spectrum".
"However, the court appears to have considered that Iswaran committed the offences while a high-ranking public servant," he said.
"Had this same feature been considered in the context of a corruption offence, it is likely the sentences would have been more severe."
Mr Sudheesan agreed, saying that if the offence had been corruption, "he would have been hammered even more".
This signals that high-level public servants "better be careful" and public servants on all levels including quasi-public servants better declare any gifts, said Mr Sudheesan.
Mr Chooi said the sentence was lower than what it would have been if it had been a corruption offence.
"A key difference is that (a corruption offence) does actually require something to be exchanged, even if intangible, whereas a Section 165 offence is made out even if we fall short of that," he said. "Hence, the upper sentencing limits for corruption are also higher."
The maximum jail term for corruption under Section 6(a) of the Prevention of Corruption Act is seven years, while the longest jail term for an offence under Section 165 is two years.
"Culpability and harm are higher the higher the office," said Mr Chooi. "These are the two main factors which generally inform any sentencing analysis. It would imply that the higher someone's office, the more careful they would have to be around seemingly innocuous gifts."
Justice Hoong had stated that generally, the greater the public interest in the concerned transactions or the official functions of the offender, the greater the harm that would ensue.
On the likelihood of an appeal, Mr Sudheesan said an appeal "feels likely".
Mr Wee said Iswaran's lawyers will be considering the judge's remarks carefully, but a fuller grounds of decision will allow his lawyers to be able to consider whether they feel the High Court has made any errors in coming to a decision.
Mr Chooi said the defence will have to study the relevant precedents or any other available jurisprudence in the lack of precedents, to see if the sentence passed can be said to be manifestly excessive.
"In theory, if the prosecution feels that the sentence is manifestly excessive, they could also launch an appeal. Again, whilst extremely rare, it has happened before," said Mr Chooi.
Turning to Justice Hoong's point about how no quid pro quo needed to be established for offences under Section 165 of the Penal Code - which forbids all public servants from obtaining any valuable thing from someone involved with them in an official capacity - Mr Yeo said this underlined the "broad scope of the law regarding public servants' conduct".
"This approach reflects an understanding that any acceptance of valuable items by a public servant can undermine public trust and integrity, irrespective of whether it had directly influenced any specific decision or action.
"The focus shifts from the transactional nature of the act to the broader implications of the conduct itself, reinforcing the idea that the mere acceptance of any gift can pose a serious risk to the integrity of any public office," Mr Yeo said.
Iswaran is due to surrender at the State Courts at 4pm on Oct 7 to begin serving his sentence, if he decides not to file an appeal.
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