Prosecutorial Discretion - A Power That is Rarely, if Ever, Challenged
Updated: Jul 13, 2022
I am not a lawyer, but as a layperson I know only too well that prosecutorial discretion, by its very nature, can be susceptible to abuse of power, which can have an enormous impact on people's lives, either negatively or positively. Prosecutorial discretion has little accountability or transparency and operates as a kind of black box that only few see inside as facts go in, decisions come out, and explanations of decisions are rarely forthcoming. In Singapore, prosecutorial discretion means that the Attorney General ["AG"] can decide to start, not start, or put a stop to, any prosecution for any offence. It is ultimately his judgement call. But what happens when the AG is conflicted?
After reading about the cases below, the conflicts, the timing of the actions, and the individuals targeted, I think any ordinary man/woman in the street could be forgiven for believing that Lee Suet Fern and her son Li Shengwu were persecuted in retribution for Lee Hsien Yang accusing his brother of an abuse of power; and Parti Liyani to protect the Liews!
Who Watches the AG?
The subject of prosecutorial discretion was raised last week in Terry Xu vs AGC, Court of Appeal (28 Jun, 2022). Usually if an activist or an opposition figure in Singapore so much as sneezes in the wrong direction, the local press will report on it. However, there was little if any coverage of the above case and some of the questions put by the Court to the AGC might explain why.
Former editor of the now defunct 'The Online Citizen' Terry Xu was represented by opposition leader/lawyer Lim Tean in the above case, which centred around a letter which I had written to the Chief Justice and published online. No-one from the Singapore Police Force (SPF) or the Attorney General's Chambers (AGC) had reached out to me in relation to that letter, prior to or after proceedings were commenced against Terry Xu. Terry Xu is being charged with Contempt of Court for sharing my letter. Having been repeatedly asked why I sent the letter, please read on as I share the journey to my decision...
In 2013 I became embroiled in a web of deceit and lies when a group of individuals conspired to defraud my family out of our shareholding in an Australian company ["the transaction"]. The conspiracy to defraud could not have been accomplished without the assistance of a well-connected Singaporean, and financial institutions within Singapore. I could have sat in the corner and cried at the financial theft, but instead I chose to investigate and provide the evidence to the Singapore watchmen. The more I dug, the dirtier it got and the higher it went. What I didn't expect, was that the claims made by the Singapore Government of a zero tolerance to corruption, no coverups allowed and no-one being above the law, appeared nothing more than a brand marketing strategy to maintain the illusion that Singapore is a 'clean' country in which to undertake business. The underlying message appeared to be more along the lines of a 'zero tolerance to 'exposing' corruption', with cover-ups not just being allowed, but facilitated!
I submitted a report to Singapore's Corrupt Practices Investigation Bureau ["CPIB"] relating to Singaporean Lee Chye Tek Lionel ["Lee"] and his involvement in the transaction. The report included, but was not limited to allegations of affixing forged signatures to documents on behalf of a struck off entity, offering a financial incentive which would result in a writ served on two subsidiaries of an SGX listed entity being retracted, numerous non-disclosures, conflicts of interest, the use of two DBS letters in a conspiracy to defraud and the list goes on..
Conflict of Interest
The CPIB passed my report on to the SPF, which would result in a conflict of interest within the highest echelons of the AGC, and the Ministry of Law. Lee had been legally represented by Edwin Tong, who was an MP and Deputy Chairman of the Government Parliamentary Committee for Law and Home Affairs at the time, and is now the current Second Minister of Law. The law firm involved Allen & Gledhill ["A&G"], was formerly headed up by the current Attorney General Lucien Wong (AG). A&G was shown to have drawn up the documents for Lee and his associate to use in the transaction. Later A&G facilitated a Settlement Agreement which would result in allegations of fraud, which implicated Lee, remaining undisclosed to investors and stakeholders of the companies which Lee controlled. Government linked bank DBS was also implicated in the conspiracy to defraud, even if it was unaware at the time. Whether it was knowingly complicit, is an article for another day.
Frustrated that after 18-months I had not even passed first base, and the SPF was still assessing my complaint, I wrote to the AG to raise concerns over the delay. The AG responded that he could not deal with the matter due to it involving his former law firm. His current partner now heads up A&G. However, within a week of my email being passed to the Deputy Attorney General, the SPF closed the case citing a lack of evidence. That response was ironic when A$3.6m had been offered to a party by Lee, with conditions including that evidence be handed over, complaints be withdrawn and a writ which implicated Lee in a pattern of fraud be retracted.
It was alleged that during their 18-month assessment, SPF had not contacted any board member, executive or member of management of SGX listed Triyards, the company which was a party to the transaction. Lee was Chairman of Triyards and MD of EZRA Holdings, which was its largest shareholder. Even from publicly available information it was clear that there were serious matters which needed investigating within the EZRA group of companies. Government linked DBS faced being left the biggest loser following the collapse of the EZRA group, so why wasn't DBS calling for an investigation? An investigation into Lee and the companies he controlled would have been more in the public interest, than the case of an Indonesian maid alleged on flimsy/perjured evidence, to have stolen $34K of goods from her elite employers! "DBS has the largest exposure to the Ezra group of companies at $637m"
"A conflict of interest in the upper echelons undermines the very foundation of democracy because it interferes with the basic principles of state operation such as legal equality, separation of powers and rule of law"
No Independent Inquiry
My concerns about the conflicts of interest within the 'system' were further heightened when in June 2017 the siblings of Singapore's Prime Minister (PM) said that they felt "threatened" by their brother's misuse of his position and influence over the Singapore government and its agencies, to drive his personal agenda. They also claimed to fear the use of organs of state against them. In July 2017, the PM would be cleared of any wrongdoing by his subordinates in Parliament. Despite a rare protest calling for an independent enquiry into the serious allegations, and the PM's siblings claiming they would divulge more evidence of abuse of power to an independent inquiry, one has never taken place.
Just one month later in August 2017, Li Shengwu the son of one of the PM's siblings, would find himself being charged with Contempt of Court over a Facebook comment he made to friends “Keep in mind, of course, that the Singapore government is very litigious and has a pliant court system.” It's not the first or last time that I have seen similar comments made publicly by other parties. Despite Li Shengwu living in the US, the AGC would go to great lengths to serve papers on him. Li Shengwu was found guilty in July 2020 and fined S$15K, after legal proceedings spanning almost an incredible three-years. Not forgetting I couldn't even get an investigation into a report of fraud, forgery, non-disclosures etc.
Li Shengwu stated “I do not admit guilt. I have never denied writing what I wrote, to my friends in a private Facebook post. I disagree that my words were illegal. Moreover, civilized countries should not fine or jail their citizens for private comments on the court system”. Mr Li also remarked that while he was charged for scandalizing the judiciary, “The true scandal is the misuse of state resources to repress private speech. In the course of this three-year prosecution, the Singapore Attorney General’s chambers has written thousands of pages of legal documents, suppressed parts of my defence affidavit, and demanded that I reveal to them all of my friends on Facebook”. As can be seen from my open letter to the Chief Justice, I agree that no system or individual should be beyond reproach. Li Shengwu was expressing his opinion of the system, just as I and many others have done. People cannot be forced into believing that the Singapore legal/justice system is infallible, it has to be seen to be that.
Lee Suet Fern
In January 2019, Li Shengwu's mother would also find herself in the firing line of Singapore's Organs of State. Lee Suet Fern is a prominent lawyer and she found herself reported by the AGC for professional misconduct. It was noted that the legal profession’s code of conduct requires that lawyers do not place themselves in positions of conflict. I found that somewhat ironic!
The complaint against Lee Suet Fern was in relation to Lee Kuan Yew's Will. Again, I am not a lawyer, but having been through a similar situation with my own parents, we were told Probate was the time when you raise your concerns or forever hold your peace. At the time of Probate in October 2015, my understanding was that the current AG Lucien Wong was the PM's personal lawyer. Surely if Lucien Wong held any legitimate concerns about Lee Suet Fern's conduct, he would have raised them prior to Probate? Why did Lucien Wong wait until January 2019, after he had been appointed AG and the PM had been accused of abuse of power by Lee Suet Fern's husband, to report Lee Suet Fern for professional misconduct?
Lee Suet Fern was found guilty, however a Queen’s Counsel said that the findings of the Court of Three Judges were “legally unsound” and that it was a “serious error” of judgment to find Lee Suet Fern guilty of professional misconduct. It was interesting to recently read the memoirs of former prominent lawyer TPB Menon, who earned the reputation as the best chancery lawyer in Singapore. My take from some of the comments made in relation to the Lee Suet Fern case included, that the honesty of Lee Suet Fern was never in question, there was nothing improper or sinister in her conduct. And the damning phrase, 'misconduct unbefitting of a solicitor' couldn't have possibly applied to her. Yet, Lee Suet Fern was found guilty!
Indonesian maid Parti Liyani was accused of stealing from her employer, on what we now know was flimsy evidence; some of which was perjured. Parti Liyani was initially sentenced to over two-years in jail for the theft of S$34K of goods, but a pro-bono lawyer and a charity stepped forward to support Parti to clear her name. On appeal Parti was acquitted. Parti had stood up to her elite employers, the prominent Liew family, after they had asked her to undertake work at multiple properties, which is illegal in Singapore. The High Court found that the Liews could have had an ulterior motive for accusing Parti of theft and that was to prevent her from complaining to the Ministry of Manpower in relation to her illegal deployment. Even if that had been the case, how did the flimsy evidence pass the prosecutorial discretion 'sniff test', which led to an innocent, vulnerable woman being initially sentenced to 26-months imprisonment? It didn't go unnoticed that several years before he was appointed AG, Lucien Wong sat on the board of CapitaLand Limited, while Parti Liyani's employer Mr Liew was president and CEO of the company.
My Open Letter to the Chief Justice When I read the Opening of the Legal Year 2021 Speech given by Singapore's Chief Justice. I was surprised that the high profile cases of Lee Suet Fern and Li Shengwu were not mentioned. Given my own concerns over conflicts of interest, I wrote open letters to both the Chief Justice and later the Attorney General. Prosecutorial discretion doesn't just affect Singaporeans and and I don't believe that anyone or any system that could be open to abuse, should be beyond reproach. I raised concerns about Lee Suet Fern and Li Shengwu having been persecuted and not prosecuted, and I questioned whether Parti Liyani had been falsely accused and then chased down by the AGC to protect members of the well-connected Liew family. I believe that in my case, Lee was being protected because of the conflicts which existed within the AGC, the Ministry of Law and DBS. This left me questioning if prosecutorial discretion was being used to persecute and/or protect individuals, for the benefit of those connected to the power structure? Who was there to challenge this powerful legal tool?
The Editor of the now defunct 'The Online Citizen' (TOC) asked if he could share the open letter which I had written to the Chief Justice, after I posted it on social media. Undoubtedly, questions in relation to an equitable legal and justice system would be a subject of public interest in Singapore, as in any country.
Terry Xu vs AGC, Court of Appeal (28 Jun, 2022)
My understanding is that the above case was to decide why the AGC had made the prosecutorial decision to prosecute Terry Xu for sharing an open letter that I had written to the Chief Justice. If previous legal proceedings taken against Terry Xu are any sort of gauge, he is a thorn in the side of the authorities and there is a danger that he could be targeted. After reading brief excepts from last week's case, it appears that the Court of Appeal were as perplexed as me and others by some of the responses from the AGC!
Court to AGC: If she was in Singapore - would you have prosecuted her? (she is me)
AGC: We will have to assess
Court: I am surprised to hear that
Court: As Mr Lim Tean said - if you had even written a letter to Julie O' Conner - she may have been willing to be investigated (which she stated and invited the police to investigate her) and also come to Singapore
AGC: If we had sent her a letter and she did not respond positively, it would be the "practical steps" as to what do we do next?"
The Court asked the AGC if I was in Singapore would it have prosecuted me? The AGC's response was that "We will have to assess".
WHY wasn't the response an empathic yes? The AGC had already used its prosecutorial discretion to decide that Terry had a Contempt of Court case to answer for sharing my letter, wouldn't the author/publisher have been charged with the same if they had been in Singapore?
The Court asked the AGC why they had made no contact with me in relation to the letter which I published.
The AGC were fully aware of my contact details as I had contacted the AG on numerous occasions and I have never hidden my identity. I was astounded to read the response that if I didn't respond positively what do they do next.
DID the SPF apply the same ludicrous logic in my case, concerned with what and who would be exposed if the SPF had contacted Triyards and investigated the activities of Lee and others?
WHY didn't the AGC or the SPF reach out to me and request that I remove the letters as they had done with Terry Xu, when The Ministry of Home Affairs had no problem contacting me asking me to remove a post under POFMA?
When I submitted my report to the CPIB, it should have been evident that there would be conflicts of interest in the highest echelons of the AGC and arguably the Ministry of Law, if SPF were asked to investigate.
WHY was the SPF asked to assess my complaints, when there was a risk that conflicts of interest could interfere with the rule of law?
WHY when I reached out to the Singapore President to ask her to instruct the CPIB to investigate, did the SPF respond on her behalf? What happened to the separation of powers?
IF the Prime Minister or anyone else within the highest echelons are accused of corruption, whose prosecutorial discretion will decide if they are investigated, let alone charged? Ownself check ownself is not a virtue, it is a danger.
There are other cases which could be raised, one in particular that I want to mention is the case of Jeanne Ten who has been fighting the 'system' for many years and has now asked that the AGC investigate her allegations of perjury against NUS Officers. I sincerely hope that Jeanne receives the justice that she so deserves.
Below is the opening paragraph of my letter to the Chief Justice. I suggest you read and then go and read the above again, and then ask why those in the highest echelons are silent about what has/is taking place? If Lee Hsien Yang's family believe they have been left with no other option but to leave the country of their birth, then who will feel safe after speaking up?
"I recently read an online comment by Jonathan Pollard, a US-based lawyer. He wrote: “If you build a legal system that is largely political, favours people who have money/power, favours people who know the judges and are connected to the power structure – it should not be the least bit surprising that the system is riddled with dysfunction and inequity. Likewise, it should not be surprising when the facts don’t matter, the calibre of advocacy becomes largely irrelevant, and outcomes that leave the average person speechless, confused, and shocked are par for the course.”
Below are extracts taken from a foreword written by former Singapore President Devan Nair to the book 'To Catch a Tartar', written by former Solicitor General Francis Seow. You can read more at this website - http://singaporerebel.blogspot.com/2009/05/lees-betrayal-of-pap-and-singapore.html?m=1
Extract from Freedom House 2022 - Singapore