Bill Puah Ee Jie and Keith Low*

I. Introduction

A guilty plea refers to an admission by someone who is accused of a crime that he or she did, in fact, commit the crime. Often, pleading guilty affords an accused a significant discount in sentencing. This discount, accompanied with the costs and time involved in claiming trial, may make pleading guilty appealing – even, unfortunately, to the innocent.

This article aims to explain the process of pleading guilty and the legal effects of a successful plea of guilt. It then discusses the various procedural safeguards in our plead guilty process, which endeavour to reduce the possibility of a wrongful conviction.

II. The Process of Pleading Guilty

When the accused is first charged with an offence in court, he will be asked by a judge how he would like to plead in relation to the charges against him. Generally, an accused may either choose to plead guilty or exercise his constitutional right to claim trial.[1] For offences punishable by death, the Prosecution must produce evidence of the offence at trial for the guilty plea to be recorded.[2]

Typically, if the accused wishes to plead guilty, he should verbally inform the judge of his intention.[3] However, for certain minor offences, an accused may also be able to plead guilty electronically, by paying the fine or prescribed fee.[4] Additionally, for offences punishable by a fine and/or imprisonment of 12 months or less, the accused may plead guilty through a letter to the court if he is agreeable to pay any fine fixed by the court.[5] However, the court may still require the accused to attend the hearing.[6]

If he chooses to claim trial, this would require the Prosecution to prove the charge against him beyond a reasonable doubt.[7] If the accused does not plead (known in some jurisdictions as nolo contendere),[8] it will be assumed that he is claiming trial.  The option to plead guilty remains open as long as the accused has not been convicted.[9]

III. Legal effects of a guilty plea

A. A guilty plea may be a mitigating factor

A guilty plea is generally an offender-specific mitigating factor[10] which may lower the offender’s sentence. There are two philosophical justifications for this.[11] First, the moral/remorse-based approach considers that it is no longer necessary for a harsh punishment to deter the offender as much if he has demonstrated genuine remorse.[12] Notably, this approach has been criticised due to the difficulty of ascertaining genuine remorse.[13]

Second, the pragmatic/utilitarian approach considers that the purpose of criminal law is to help victims of crime, ensure that offenders are dealt with fairly, justly, and with minimum delay, and to achieve its aims in the most economical, efficient, and effective manner possible.[14] It considers that guilty pleas spare the victim the ordeal of testifying and the horror of reliving the incident, and conserve state resources that would otherwise be expended for a trial.[15] The former reason applies with greater force if the offence causes trauma or if the witness is particularly vulnerable, such as in cases of sexual offences.[16] Notably, this approach has been criticised because providing sentencing discounts for guilty pleas essentially penalises those exercising their right to claim trial, even if they have valid reasons for doing so.[17]

These two justifications underpinning the concept of guilty pleas are generally consistent with one another.[18] Ideally, the justifications would be consistent, such that the law would encourage genuine pleas of remorse.[19] However, in certain cases, these justifications may conflict.[20] For example, an offender may decide to delay his plea of guilt for purely tactical reasons, such as to obtain a concession from the Prosecution or to get off scot-free by attempting to trip the victim up in his/her testimony.[21] Here, it will be difficult to trace any hint of remorse in his guilty plea. At the same time, one cannot deny that some measure of resources has still been saved by his late plea. In such cases, what is the proper weight to be ascribed to this guilty plea?

This difficulty in deciding the proper weight to be accorded to a guilty plea stems from the disagreement about the preferred approach in such situations. This might create issues of consistency and fairness in the nature and quantum of sentencing discount given between offenders.[22] Hence, our courts have been prudent in holding that a guilty plea does not, by itself, entitle an offender to a reduction in sentence.[23] Its mitigating value is not fixed and must be viewed in light of other factors, and with regard to its justifications.[24]

The mitigating weight of guilty pleas is affected by the following factors:

(i) Degree of remorse[25]

This can be determined by considering the conduct accompanying the plea.[26] Even though identifying genuine contrition may be difficult, a lack of remorse might be apparent from the accused’s conduct. In Terence Ng v Public Prosecutor, although the accused pleaded guilty, he had consistently tried to downplay his responsibility, and even pushed responsibility for the statutory rape onto the victim. This lowered the plea’s mitigating value.[27] In Public Prosecutor v NF, the accused’s plea of guilt was similarly not given appreciable weight as a plea does not, in itself, indicate sincere or veritable contrition. In fact, the accused was not genuinely remorseful as an apology was only made after evidence of the rape had been exposed and scrutinised.[28]

Additionally, if there is a volte-face (i.e., sudden shift of behaviour) that does not evidence genuine remorse, the guilty plea would also have lower mitigating value.[29] In Wong Kai Chuen Philip v Public Prosecutor, the accused had acted with impunity with the misappropriated funds prior to surrendering himself.[30] This sudden shift of behaviour made the guilty plea seem to be a purely tactical move that did not indicate genuine remorse, especially since had no other means of escape.[31] Accordingly, the plea of guilt was not accorded significant weight.

(ii) Timeliness of the plea[32]

A late plea might lower its mitigating value. In Krishan Chand v Public Prosecutor, the plea of guilt was accorded lower weight because it was not done at the earliest opportunity, but on the day of trial.[33] Similarly, in Public Prosecutor v Muhammad Shafie, the guilty plea was accorded little weight because efforts to do so by extending representations only began after the victim’s cross examination had started.[34]

(iii) Availability and strength of evidence

An offender may have “no choice” but to plead guilty because he had been caught in flagrante delicto.[35] This refers to a situation where there exists strong or incontrovertible evidence against the accused. If evidence overwhelmingly supports a conviction, there may be no sentencing discount as the offender’s plea of guilt is likely motivated by reality rather than remorse.[36] In Chang Kar Meng v Public Prosecutor, the value of the guilty plea was nullified as the accused was caught on surveillance footage and the circumstantial evidence was strong. His DNA was found on the victim, and the victim’s belongings were found with the accused and his girlfriend.[37]

(iv) Public interest

If there is a greater need to protect the public, there may be no sentencing discount for pleading guilty.[38] For example, in Fu Foo Tong v Public Prosecutor, no sentencing discount was given to gang robbers.[39]

B. Guilty pleas may affect the nature of the sentence

Apart from influencing the severity of a sentence, guilty pleas might also affect the nature of a sentence. For young offenders, a guilty plea (especially one made at the earliest available opportunity) indicates a desire for positive change, propensity for reform, or rehabilitative capacity.[40] Rehabilitative sentences like probation may then be preferred over reformative training or incarceration.[41] In Leon Russel Francis v Public Prosecutor, a 21-year-old drug offender who acknowledged his wrongdoing by pleading guilty had his imprisonment sentence substituted with supervised probation.[42]

C. Guilty pleas can prevent the court from considering and convicting the accused of an alternative and graver charge[43]

After an accused pleads guilty and/or is convicted of a particular charge, the court cannot consider the possibility that an alternative and graver charge could have been brought and treat him as though he had been found guilty of the graver charge.[44] This was the case in Shafie, where the accused were subsequently charged with aggravated outrage of modesty, and the court affirmed that it could not alter the charge to rape or sexual assault even if it wanted to.[45] However, the severity of the sentence might not actually differ because it remains open to the court to find that the offence is on the worst end of the spectrum and give a harsher penalty.[46]

IV. Procedural safeguards for a valid guilty plea

Our criminal justice system recognises that accused persons may be incentivised or induced to plead guilty even though they may have a reasonable defence, or when they are not even guilty.[47] This is because the accused might want to obtain a sentencing discount or avoid the high monetary costs of trials.[48] He may also be fearful of the prospect of incarceration.

Due to the above possibility, safeguards are necessary to uphold the constitutional imperative to ensure that only the guilty suffer punishment.[49] As such, the court will reject a guilty plea not made in accordance with certain procedural safeguards (discussed below).

Even after a guilty plea has been accepted, the court may re-examine or allow the withdrawal of a guilty plea up to the point when the sentence is passed.[50] However, once the accused has been sentenced pursuant to his plea of guilt, he may only apply for a “criminal revision” to invalidate his plea. In such a case, the appellate court will almost inevitably take a dim view of an accused person’s assertions relating to the plead guilty process or his denial of guilt if he applies to invalidate his plea post-sentencing.[51]

This is because there is the obvious inference that the accused person, having received his sentence, then regrets his decision to plead guilty and now wishes to take his chances at trial.[52] Therefore, to preserve the integrity and finality of the judicial process, courts will only exercise its revisionary powers in cases of serious injustice.[53] For instance, the court may exercise its revisionary powers if the accused can show that the procedural safeguards have not been complied with.[54]

A. Voluntariness of plea

The first procedural safeguard is that a plea of guilt must be genuine and voluntary.[55] The chief consideration appears to be whether there was overwhelming pressure that deprives an accused of his freedom of choice.[56] In Yunani bin Abdul Hamid v Public Prosecutor, the court set aside the accused’s plea of guilt since numerous factors pointed towards the existence of overwhelming pressure on the accused when his plea was made. Not only was there a dearth of evidence, but the accused’s chances of obtaining any had also greatly dwindled because 15 years had passed since the offence was allegedly committed.[57] He was then faced with a drastically higher sentence if he did not plead guilty, and his lawyer was not confident about securing an acquittal.[58] Finally, the accused had insufficient finances to secure legal representation if the case proceeded to trial.[59] All these circumstances created overwhelming pressure that vitiated the voluntariness of the accused’s plea of guilt.[60]

It is also clear that improper behaviour by judicial officers[61] or inducement or pressure by counsel[62] may render an accused’s plea of guilt involuntary. An accused person who finds himself in this predicament can apply to invalidate the plea on the basis that there is no intention to admit to the offence. In Chng Leng Khim v Public Prosecutor, defence counsel had conveyed to the accused that she could be remanded at the Institute of Mental Health if she did not plead guilty and the matter went to trial.[63] This was an alarming prospect to the accused and created sufficient stress to deprive the accused of her freedom of choice.[64] Similarly, in Gao Hua v Public Prosecutor, defence counsel had repeatedly reminded the accused of her mother’s plight, warned her about the costs required to contest the charge, and gave alarming interpretations of the Deputy Public Prosecutor’s behaviour. These facts, compounded by the accused’s language difficulties, suggested that there were overwhelming pressures that caused her to plead guilty.[65]

On this note, it will not amount to sufficient pressure if counsel merely advises about the possibility of harsher sentences if an accused does not plead guilty.[66]

B. Accused must understand nature and consequences of plea

The second procedural safeguard is that the court must be satisfied (before recording the guilty plea) that the accused understands the nature and consequences of his plea.[67] A court may infer this from the accused’s statements in court.[68]

The court may also infer that an accused understands the nature and consequences of his plea if the circumstances suggest that the accused was not labouring under a mistake or misunderstanding.[69] In Ganesun v Public Prosecutor, the accused’s plea was accepted also because there was no indication of any mistake or misunderstanding.[70] This was especially since the accused had the benefit of legal advice and it was never suggested that the advice he received had been wrong.[71] As such, criminal law practitioners should keep proper records of their correspondence with accused persons.[72] If the accused person subsequently applies to set aside his conviction, these records will be instrumental in allowing the court to determine whether the circumstances under which a plea of guilt was taken evince such mistake or misunderstanding.[73]

There will also be concerns about whether an accused person truly understands the nature and consequences of his plea if he has a mental illness or disorder – this might nullify a guilty plea.[74] However, the accused might still appreciate the significance of a guilty plea even if he was of unsound mind.[75]Thus, the Court may still choose to accept the guilty plea in such situations. In order to determine whether an accused is fit to plead, courts may refer to psychiatric reports.[76]

Finally, if the accused is not legally represented, the court must also be satisfied that he understands the punishment prescribed for the offence.[77]

C. Plea must not be qualified

The third procedural safeguard is that a plea of guilt must be made without qualification i.e., the accused unequivocally admits to the offence when he is called on to plead. He cannot admit to a statement of facts that lacks the essential ingredients of the offence,[78] or make a mitigation plea that contains information that contradicts or materially affects any condition required by law to constitute the offence charged.[79]

An example of the third scenario would be the case of Md Rafiqul Islam Abdul Aziz v Public Prosecutor. The accused was charged with making a fraudulent claim for compensation under the Work Injury Compensation Act.[80] He pleaded guilty, but had subsequently asserted in mitigation that a work accident had occurred on another date. This submission was found to have qualified his plea of guilt because it materially affected an element required for the offence (i.e., the intention to defraud).[81]

Occasionally, it may be difficult to identify if a guilty plea is qualified. In Toh Lam Seng v Public Prosecutor, the mitigation plea revealed the possibility of provocation for an offence of causing hurt.[82] However, the court held that this did not qualify the guilty plea as the stated provocation did not rise to the level required for the defence of grave and sudden provocation.[83]

If the court has accepted a plea that was qualified, whether originally or subsequently, the plea of guilt may be invalidated. The accused does not have to prove that there were valid and sufficient grounds for the court to reject it.[84] In Koh Bak Kiang v Public Prosecutor, the lower court did not reject the offender’s plea when he subsequently qualified it (by asserting that he did not know the nature of the drug that he was trafficking).[85] On appeal, the court substituted his offence with a less severe one to make it more consistent with the qualified plea.[86] This also reveals the flexibility that the court has in fashioning an appropriate remedy for a wrongfully accepted plea.

However, if the court believes that the accused’s conduct amounts to an abuse of process, the court is not required to reject the plea.[87] This is because courts retain inherent powers to ensure compliance with due process of law and prevent abuse of process.[88]

V. Conclusion

It is clear that a true offender’s plea of guilt benefits society at large. It enables the state to punish and deter undesirable conduct with minimal delay, and allows victims of crime to obtain timely closure. However, where innocent individuals are induced to plead guilty, public confidence in the integrity of our criminal justice system is eroded. Hence, to preserve the rule of law, our criminal justice system must depart from a mindset of maximising efficiency and, instead, remain eternally vigilant towards the possibility of wrongful convictions.[89] These wrongful convictions can only do violence to our societal values and fundamental sense of justice.[90]

* Year 2 LL.B. students, Singapore Management University, Yong Pung How School of Law. We would like to thank professors Ong Ee Ing and Kenny Yang for their invaluable comments and guidance. All errors remain our own.

[1] Angliss Singapore Pte Ltd v PP [2006] 4 SLR(R) 653 (“Angliss”) at [84].

[2] Criminal Procedure Code (Cap 68, 2012 Rev Ed) (“CPC”), s 227(3).

[3] The State Courts, Criminal Justice Division, Guidebook for Accused in Person (2017) (“Guidebook”) at p 35.

[4] CPC s 226(1).

[5] Guidebook, supra n 3, at p 40.

[6] Ibid. For instance, this may occur if the letter addressed to the court may contain a qualification which the court cannot accept. See Part IV(C) below.

[7] CPC, s 158(c).

[8] Nathan B. Lenvin and Ernest S. Meyers, “Nolo Contendere: Its Nature and Implications” (1942) 51 Yale LJ 1255, at 1255-1256. However, in other jurisdictions, a nolo contendere plea may have the effect of a guilty plea.

[9] CPC, s 230(1)(n) indicates that the accused may plead guilty at the close of the Prosecution’s case, or choose to give his defence. This suggests that he may choose to discontinue his defence and plead guilty at any time from that point up till conviction.

[10] Logachev Vladislav v PP [2018] 4 SLR 609 (“Logachev”) at [37].

[11] Id, at [67]; Angliss, supra n 1, at [66].

[12] R v Millberry [2003] 1 WLR 546 (“Millberry”) at [27] and [28], endorsed in Ng Kean Meng Terence v PP [2017] 2 SLR 449 (“Terence Ng”) at [66].

[13] Angliss, supra n 1, at [72].

[14] Terence Ng, supra n 12, at [69].

[15]  Id, at [66].

[16] Id, at [68], citing Chang Kar Meng v Public Prosecutor [2017] 2 SLR 68 (“Chang Kar Meng”) at [47].

[17] Geraldine Mackenzie, “The Guilty Plea Discount: Does Pragmatism Win Over Proportionality and Principle?” (2007) 11 Southern Cross University Law Review 205 (“Mackenzie”), at 215-216.

[18] Terence Ng, supra n 12, at [69].

[19] Ibid.

[20] Angliss, supra n 1,at [55].

[21] Terence Ng, supra n 12, at [69].

[22] Mackenzie, supra n 17, at 205.

[23] Terence Ng, supra n 12, at [67], affirming PP v NF [2006] 4 SLR(R) 849 (“NF”) at [57].

[24] Id, at [71].

[25] Id, at [40].

[26] Id, at [90]; NF, supra n 43, at [58]; Chang Kar Meng, supra n 16, at [48].

[27] Terence Ng, ibid.

[28] NF, supra n 23, at [58].

[29] Angliss, supra n 1, at [70], citing Wong Kai Chuen Philip v PP [1990] 2 SLR(R) 0361 (“Wong Kai Chuen Philip”).

[30] Wong Kai Chuen Philip, id, at [13]; Angliss, supra n 1,at [70].

[31] Wong Kai Chuen Philip, ibid; Angliss, ibid.

[32] Angliss, supra n 1,at [77]; PP v Muhammad Shafie bin Ahmad Abdullah [2011] 1 SLR 325 (“Shafie”) at [19]-[20].

[33] Krishan Chand v PP [1995] 2 SLR 291 at [6].

[34] Shafie, supra n 32, at [19].

[35] PP v UI [2008] 4 SLR(R) 500 (“UI”) at [71]; Terence Ng, supra n 12, at [40].

[36] Fu Foo Tong v PP [1995] 1 SLR(R) 1 (“Fu Foo Tong”) at [12], citing Wong Kai Chuen Philip, supra n 29, at [14], affirmed in Terence Ng, supra n 12, at [71].

[37] Chang Kar Meng, supra n 16, at [48].

[38] Fu Foo Tong, supra n 36, at [13], affirmed in Terence Ng, supra n 12, at [71]

[39] Fu Foo Tong, ibid.

[40] Leon Russel Francis v PP [2014] 4 SLR 651 (“Leon Russel Francis”) at [15]; Praveen s/o Krishnan v PP [2018] 3 SLR 1300 (“Praveen”) at [37], [39]-[41]; PP v Siow Kai Yuan Terence [2020] 4 SLR 1412 at [56].

[41] Praveen, id, at [30]-[31].

[42] Id, at [37], citing Leon Russel Francis, supra n 40.

[43] Sim Gek Yong v PP [1995] 1 SLR(R) 185 (“Sim Gek Yong”) at [15]; Shafie, supra n 32, at [14].

[44] Sim Gek Yong, ibid.

[45] Shafie, supra n 32, at [14].

[46] Id, at [16].

[47] Angliss, supra n 1, at [68].

[48] There are no hearing fees for criminal cases. Usual costs of applying for subpoenas and filing of applications apply as well (see Fees (State Courts — Criminal Jurisdiction) Order 2014 (Cap. 106); and Criminal Procedure Code (Prescribed Fees) Regulations 2013). Legal costs of a criminal trial vary based on the counsel engaged and the length of trial. Singapore Courts, “Understand legal fees”<https://www.judiciary.gov.sg/understand-legal- fees#court-fees> (accessed 15 December 2021).

[49] Angliss, supra n 1,at [68].

[50] Ganesun s/o Kannan v PP [1996] 3 SLR(R) 125 (“Ganesun”) at [14]; Thong Sing Hock v PP [2009] 3 SLR(R) 47 (“Thong Sing Hock”)at [24].

[51] PP v Dinesh Rajantheran [2019] 1 SLR 1289 (“Dinesh (CA)”) at [49].

[52] Ibid.

[53] Id, at [49]-[50]. See also Chng Leng Khim v PP [2016] 5 SLR 1219 at [8], where two categories of serious injustice were outlined by Menon CJ: (1) real doubts as to the applicant’s guilt; and (2) the applicant having pleaded guilty under pressure.

[54] Id, at [37].

[55] Yunani bin Abdul Hamid v PP [2008] 3 SLR(R) 383 (“Yunani”) at [57].

[56] Ibid.

[57] Ibid.

[58] Ibid.

[59] Ibid.

[60] Ibid.

[61] Dinesh (CA), supra n 51, at [52].

[62] Id, at [53].

[63] Chng Leng Khim v PP [2016] 5 SLR 1289 (“Chng Leng Khim”) at [17(c)] and [18].

[64] Id, at [18].

[65] Gao Hua v PP [2009] 3 SLR(R) 800 at [57]-[58].

[66] Thong Sing Hock, supra n 50, at [37], citing Chua Qwee Teck [1990] 2 SLR(R) 571.

[67] CPC s 227(2).

[68] Ganesun, supra n 50, at [17].

[69] Dinesh s/o Rajantheran v PP [2018] SGHC 255 (“Dinesh (HC)”) at [16]-[17].

[70] Id, at [17], citing Ganesun, supra n 50, at [22].

[71] Ganesun, ibid.

[72] Ang Feng Qian, “Lessons from recent cases on the retraction of guilty pleas” [2018] SAL Prac 8, at [2].

[73] Ibid.

[74] Suggested in PP v Dolah bin Omar [2001] 3 SLR(R) 101 (“Dolah”) at [11].

[75] Ibid.

[76] Ibid.

[77] CPC s 227(2)(a)(i).

[78] Mok Swee Kok v PP [1994] 3 SLR(R) 134 at [13], citing Chota bin Abdul Razak v PP [1991] 1 SLR(R) 501 at [16]; Biplob Hossain Younus Akan v PP [2011] 3 SLR 217 at [12].

[79] CPC s 228(4).

[80] Md Rafiqul Islam Abdul Aziz v PP [2016] SGHC 273 (“Md Rafiqul”).

[81] Id, at [37].

[82] Id, at [28].

[83] Ibid.

[84] Dinesh (CA), supra n 51, at [71]-[72]. However, the accused must still show that there was serious injustice if the court’s revisionary power is to be invoked: Koh Bak Kiang v Public Prosecutor [2016] 2 SLR 574 (“Koh Bak Kiang”) at [43]; see also n 53 above.

[85] Koh Bak Kiang, supra n 84, at [19].

[86] Id, at [48], [50].

[87] Dinesh (CA), supra n 51, at [67].

[88] Id, at [28] and [67], citing Chee Siok Chin v Minister for Home Affairs [2006] 1 SLR(R) 582 at [30]-[34]; Gabriel Peter & Partners v Wee Chong Jin [1997] 3 SLR(R) 649 at [22].

[89] Thong Sing Hock, supra n 50, at [1].

[90] PP v GCK [2020] 1 SLR 486 at [126].