In this article, we explore what is judicial mercy and the circumstances in which it has been exercised, as well as the circumstances in which the Courts have declined to exercise it notwithstanding there may have been good reasons to do so.
What exactly is judicial mercy?
The Courts generally follow basic sentencing principles that reflect the severity of offences and impose proportional punishment in turn. Generally, they aim at upholding the principles of deterrence, retribution, rehabilitation and prevention. However the Courts also have the power to apply the doctrine of judicial mercy in sentencing, in light of certain exceptional circumstances. In the case of Chew Soo Chun v Public Prosecutor [2016] 2 SLR 78 (“Chew Soo Chun”), the High Court explained that “Judicial mercy tempers the imposition of a punishment in the light of the offender’s personal circumstances.” The High Court further elaborated that this power may be invoked in “cases where the offender is suffering from a terminal illness or when a jail term would endanger the offender’s life”.
The conceptual basis for judicial mercy is humanity. In very serious situations, such as when an offender is terminally ill, the Court may find it just to alleviate punishment that would otherwise be appropriate due to the seriousness of the offence committed.
Under what circumstances has judicial mercy been invoked before?
The High Court in Chew Soo Chun observed that judicial mercy has been exercised in two situations:
- Where the offender was suffering from a terminal illness: In Chng Yew Chin, the Accused was convicted on three charges for outraging the modesty of a domestic helper. The punishment for outrage of modesty is imprisonment for a term which may extend to 3 years, or a fine, or caning, or any combination of such punishments. The Accused had been diagnosed with nasopharyngeal cancer that was incurable, and only “purely palliative” treatment remained. One Dr Leong Swan Swan, a senior consultant at the Department of Medical Oncology at the National Cancer Centre, Singapore, also testified that the Accused’s illness could take a sudden and irreversible turn for the worse “anytime”. The Court was satisfied that the “stress, anxiety and hardship associated with incarceration … may aggravate the [Accused’s] existing medical condition and accelerate his demise.” The Accused was therefore sentenced to a fine of $5,000.
- Where the offender was so ill that a sentence of imprisonment would carry a high risk of endangering his or her life: In Public Prosecutor v Tang Wee Sung [2008] SGDC 262, the Accused pleaded guilty to a charge of trading in organs, and a charge of making false statements in a statutory declaration. The punishment for trading in organs is a fine not exceeding $10,000 or imprisonment for a term not exceeding 12 months or both. The punishment for making false statements in a statutory declaration is imprisonment which may extend to 3 years and shall also be liable to a fine. In other words, imprisonment is mandatory. In this case, the Accused had end-stage renal failure. His medical report indicated that he had to undergo more intense dialysis, and that the therapy time of his dialysis had to be extended by an extra hour each dialysis. Further, this dialysis was life-sustaining, and medical staff had to carefully monitor the Accused’s condition during dialysis, failing which complications would develop and endanger his life. The Court recognised that a longer term of imprisonment may carry a high risk of endangering the Accused’s life. In view of the complex daily medical regimen and medical conditions suffered by the Accused, the Court considered it appropriate to invoke the doctrine of judicial mercy in this case to reduce the risk of aggravating the Accused’s extreme ill-health. The Accused was sentenced to a $7,000 fine for a charge of trading in organs, and one day’s imprisonment and a $10,000 fine for the second charge of making false statements in a statutory declaration
Factors to satisfy
The Courts consistently emphasise that not “all future offenders with a terminal illness would invariably be treated with kid gloves”. If public interests such as retribution, protection of society, and deterrence outweigh humanitarian concerns, judicial mercy will not be granted. This was illustrated in the case of Leck Kim Koon v Public Prosecutor [2022] 3 SLR 1050 (“Leck Kim Koon”), where the Accused was tried and convicted on six charges of cheating. Despite the terminal nature of the Accused’s leukemia, the Court declined to exercise judicial mercy due to the severity of the Accused’s cheating offences, the large sums involved (approximately $878,000), his lack of remorse, and the planned and premeditated nature of the fraud. The Court in Leck Kim Koon warned that granting mercy inappropriately could give offenders “carte blanche to commit further serious offences with virtual impunity”.
Significance. Judicial mercy may be exercised on the basis of humanity where the offender is suffering from a terminal illness or if imprisonment would have a high risk of endangering his life. However, such circumstances can be outweighed by the severity of the offender’s offence.
This publication is not intended to be, nor should it be taken as, legal advice. It is not a substitute for specific legal advice for specific circumstances. You should not take, nor refrain from taking any action(s) based on this publication. We shall not be responsible for, nor do we accept any responsibility for, any loss or damage that may arise from any reliance on this publication.