*By Bernice Lim and Caitlyn Yeo

I. Introduction

The sentencing of young offenders charged with serious offences in Singapore has always garnered considerable attention,[1] particularly in light of tragic incidents such as the 2021 case of Public Prosecutor v CNK (“CNK”)[2], in which the 16-year-old accused fatally stabbed his schoolmate at River Valley High School. He pleaded guilty to using an axe to take the life of his schoolmate and was subsequently sentenced to sixteen years in prison.[3] The court meticulously weighed various factors, including his age at the time of the offence, in determining the appropriate sentence.[4]

Cases like CNK underscore the complexity and sensitivity surrounding the sentencing of young individuals charged with committing serious offences such as murder, sexual offences and offences under the Misuse of Drugs Act, prompting ongoing reflection of Singapore’s legal framework. More particularly, one might wonder how their young age factors into the sentencing process.

This piece endeavours to shed light in this regard. Specifically, it will explain that while rehabilitation is generally presumed to be the dominant sentencing consideration in the sentencing of young offenders, the courts will, in calibrating the appropriate sentence, also consider various other factors, which might enhance or counterbalance the weight given to an accused’s young age. This is so especially in cases of young offenders charged with serious offences.

To this end, we will first explore (in Part II) how the law has sought to define a “young offender” and the alternative sentencing options available. In Part III, we will explore the general sentencing principles for serious offences and how the courts have applied these principles while taking into account the tender age of young offenders. We will then, in Part IV, explain other specific factors which courts have taken into consideration in imposing a sentence on young offenders charged with serious offences. Part V will conclude.

II. Background

Under the common law (i.e. non-statutory law) in Singapore, “offenders aged 21 or below are treated as youthful offenders for the purposes of sentencing”.[5]

When sentencing such “young offenders”, the courts in Singapore generally take “a presumptive view that … the primary sentencing consideration is rehabilitation”.[6] As opposed to the usual sentences of imprisonment, fines, and/or caning used in criminal sentencing, courts may opt for common alternative sentencing options such as probation, rehabilitative programs, and community-based sentences for young offenders.[7]

III. Sentencing principle

There are four principles guiding the sentencing process under Singapore’s criminal justice system – retribution, deterrence, prevention and rehabilitation. However, when dealing with young offenders who have committed a serious offence, “the principles of rehabilitation and deterrence must form the prime focus of the Court’s attention”.[8] To this end, the court in Public Prosecutor v Mohammad Al-Ansari (“Al-Ansari”)[9] introduced a two-step framework to guide the courts in the sentencing of young offenders involved in serious offences.[10]

Firstly, the court must assess whether rehabilitation remains the predominant consideration.[11] Rehabilitation may not always take precedence, especially in cases where “the offence is particularly heinous or the offender has a long history of offending”.[12] In such instances, the courts may find rehabilitation irrelevant or unattainable despite the youth of the offender.[13] Instead, “the statutorily prescribed punishment (in most cases a term of imprisonment) will be appropriate”.[14]

Secondly, if rehabilitation is to be the predominant consideration, the court will need to determine how to give effect to this.[15] With respect to young offenders, the courts may generally choose between two sentencing options: probation or reformative training.[16] Each of these options represent different points on the spectrum between rehabilitation and deterrence.[17] In achieving a proper balance between rehabilitation and deterrence, the courts must heed the conceptual basis of rehabilitation – which involves the prevention of crime through compulsory rehabilitative measures – and the conceptual basis of deterrence  – which involves deterring both the offender himself and the general public from committing the same crime.[18]

Cases involving multiple offenders illustrate how the age of each offender can play a significant role in determining the punishment each offender receives. For instance, in Public Prosecutor v Norezam bin Mohsin,[19] a gang of six individuals stabbed the deceased multiple times with knives. This led to a joint charge under section 304(a) read with section 149 of the PC for culpable homicide not amounting to murder.[20] However, the youngest accused was 20 at the time of the offence. Despite being found equally culpable for the victim’s death, his youth was taken into consideration by the court, together with the fact that his participation was not as severe as the other accused persons.[21] He was ultimately sentenced to seven years’ imprisonment and six strokes of the cane. This was lower than that imposed on the other accused persons,[22] who were sentenced to ten years’ imprisonment and twelve to eighteen strokes of the cane.[23]

IV. Other factors which court might take into consideration

Although rehabilitation is generally presumed to be the dominant sentencing consideration in the sentencing of young offenders, the courts will, in calibrating the appropriate sentence, also consider various other factors. These factors might enhance or counterbalance the weight given to an accused’s young age. This is so especially in cases of young offenders charged with serious offences. In this section, we will discuss some of these others factors that the courts have considered: the presence of premeditation, the offender’s propensity to reoffend, protection of the public and general deterrence, as well as special circumstances involving intellectually disabled young offenders or young offenders possessing abnormalities of the mind.

A. Premeditation

The presence of premeditation often serves as a significant factor prompting the courts to assign greater culpability to an offender. Premeditation has been defined as an “implied degree of forethought and calculation that went beyond the mens rea of the offence”.[24] The mens rea of an offence refers to the “fault elements” or mental elements of an offence which connote the offender’s state of mind and goes towards establishing criminal liability for the offence.[25]

To illustrate, consider the case of Purwanti Parji v Public Prosecutor (“Purwanti Parji”).[26] There, the 17-year-old accused, who was employed as a domestic helper, had strangled her employer while her employer was asleep.[27] The court found that there was a high degree of premeditation in her actions, as she waited until her employer took a nap before attacking her.[28] After the killing, she also took steps to dissociate herself systematically from the homicide, such as staging the scene to make it appear as if her employer had committed suicide.[29] The court considered such premeditation to be an aggravating factor, especially as the employer had been elderly and was therefore more vulnerable to the attack.[30] While the court did consider the accused’s young age, they were of view that the accused was “calculating in her offence”.[31] Thus, the court concluded that the accused’s age “was of limited mitigating value”,[32] and it decided that a sentence of life imprisonment would not be excessive here.[33]

B. Propensity to reoffend and specific deterrence

(1) Existence of antecedents

The courts will also carefully consider a young offender’s prior criminal records (known legally as their “antecedents”). A history and pattern of past offences may suggest a lack of remorse on the part of the offender, which in turn may suggest a higher likelihood of reoffending.[34] This might result in a higher sentence for the offender.[35]

To illustrate, in Public Prosecutor v Sumanthiran s/o Selvarajoo (“Sumanthiran”),[36] the 18-year-old accused killed an elderly man by punching and kicking him in the face several times. He was charged with culpable homicide not amounting to murder under section 304(a) of the PC.[37] In sentencing, the court stated that the fact that the accused had committed multiple offences prior to this offence that he had committed also while out on bail, outweighed all mitigating factors, including his young age.[38] The court determined that the accused had not learnt from his past conduct.[39] His risk of reoffending was also deemed to be high as he was found to have underlying tendencies toward violence and aggression.[40] He was thus sentenced to sixteen years’ imprisonment and twelve strokes of the cane.[41]

(2) Familial support

The presence of familial support for the offender is another factor to be considered in sentencing. In determining the offender’s capacity for rehabilitation, courts consider the strength of familial support and the degree of supervision provided by the offender’s family.[42]

In Praveen s/o Krishnan v Public Prosecutor,[43] a 17-year-old was charged for the consumption and possession of drugs; he appealed his sentence of reformative training to the High Court. The court considered the presence of familial support in its analysis of the offender’s capacity for reform and the calibration of his overall sentence.[44] It found that his parents had been “remarkably supportive” of his rehabilitative efforts and had “taken initiatives to increase their supervision over him”, such as self-referring the offender for counselling at The Singapore Indian Development Association (“SINDA”)[45], voluntarily attending counselling sessions with him, and being cooperative in updating his counsellors about his attitude and behavioural patterns.[46] They were also proactive in ensuring that he adhered to court-imposed curfews while he was out on bail.[47] Accordingly, the court decided that he had “good potential for reform”,[48] and amended his sentence from reformative training to thirty-six months of probation.[49]

However, it should be noted that the presence of familial support might not always be a strong enough factor to persuade the court to grant a lower sentence. For example, in Sumanthiran, although both psychiatrists examining the accused had found the presence of strong familial support, the court determined that his family would not be able to supervise him any more effectively than they had already been doing, in order to rein in any violent behaviour in the future.[50] Hence, the court did not accord much weight to this factor.[51]

C. Protection of the public and general deterrence

The protection of the public and deterrence of specific crimes are also factors considered by the court in sentencing young offenders. In cases such as Purwanti Parji, aggravating factors such as the need for protection of the public and general deterrence of specific crimes outweighed the mitigating factor of the young age of the offender.[52]

In Purwanti Parji, although there were several mitigating factors including the accused’s young age, these were all outweighed by other factors such as considerations of public interest.[53] While the accused, a domestic worker, was only 17 at the time of the offence,[54] there was also the worrying trend of domestic workers inflicting violence on their employers and/or their family members.[55] The court stated that the need to curb this new wave of socially disruptive behaviour,[56] combined with the high degree of premeditation found in the accused’s actions, resulted in the young age of the accused being of limited mitigating value.[57] As such, the court decided that there was no basis for them to overturn her sentence of life imprisonment.[58]

D. Intellectual disability

In cases involving young offenders with intellectual disabilities,[59] such as in Public Prosecutor v ASR (“ASR”),[60] the courts tend to prefer rehabilitation as the dominant sentencing principle.[61]

Intellectual disability occurs along a broad spectrum of severity.[62] Individuals with severe intellectual disability, such that they are unable to comprehend the “nature and consequences of the act they had committed”, may be acquitted.[63] However, in other cases, intellectual disability may not absolve an individual’s culpability.[64] Hence, the severity of the offender’s intellectual disability will also play a role alongside the young age of the offender in determining whether rehabilitation remains the dominant sentencing objective.[65]

The 14-year old accused in ASR was charged with two counts of sexual assault by penetration under section 376(2)(a) of the PC and one count of aggravated rape under section 375(1)(a) of the PC.[66] He was found to have an intellectual disability with an IQ of 61 and a mental age of between eight and ten,[67] which greatly reduced his culpability.[68] The court stated that whether rehabilitation remains the dominant sentencing principle hinged largely on the offender’s mental state at the time of the offence.[69] Here, his intellectual disability impaired his ability to control his actions and comprehend the nature and consequences of his actions as well as their legal and moral implications.[70] Considering these circumstances alongside his young age,[71] the court was of the view that rehabilitation was the dominant sentencing consideration and sentenced him to reformative training for up to three years.[72]

It should also be noted that if the court determines that one of the sentencing options under the rehabilitative approach, such as reformative training, is not suitable for an offender due to his intellectual disability, this does not automatically displace rehabilitation as the normative sentencing consideration in the first step of the two-step framework in Al-Ansari.[73]

For instance, deterrence is unlikely to displace rehabilitation as the dominant sentencing objective in cases of young offenders with severe intellectual disabilities,[74] as it relies on the assumption of a “cognitive normalcy of the offender”,[75] or that the offender possesses typical and average cognitive abilities. Since a young offender with a severe intellectual disability would have a reduced ability to appreciate the nature and quality of his actions, deterrence would carry minimal weight and hence would be unlikely to replace rehabilitation as the dominant sentencing objective.[76] For example, in ASR, the court stated that long-term imprisonment with caning would not be appropriate for the young and intellectually disabled accused, as such a form of punishment primarily hinged on deterrence.[77] The accused in this case had also already been incarcerated for almost four years.[78] Hence, the court sentenced the accused to reformative training for up to three years.[79]

E. Mental illness or disorders

In some cases, the presence of mental illness or disorders may serve as a mitigating factor to reduce a young offender’s sentence. As held in Public Prosecutor v Kong Peng Yee,[80] the moral culpability of mentally disordered offenders lies on a spectrum and depends on the nature and severity of their mental disorder.[81]

On one end of the spectrum, where a mental disorder severely impairs the offender’s ability to understand the nature and consequences of their acts, to make reasoned decisions or to control their impulses, deterrence should not be a dominant consideration in sentencing.[82] On the other end, where an offender retains an understanding of his actions, the ability to reason, to think logically and coherently, to weigh the consequences of his actions and ultimately remains rational despite his mental affliction, the mental affliction could only ameliorate his culpability to a limited extent.[83] In such cases, deterrence and retribution must remain the predominant sentencing principles as mental illnesses such as depression “cannot be a license to kill or harm others”.[84]

To illustrate, in CNK (see Part I), the 16-year-old accused was suffering from major depressive disorder, which substantially impaired his capacity to know whether his acts were wrong.[85] However, the accused had meticulously planned his commission of the offence by watching videos online to learn how to wield weapons to maximum effect.[86] He also carefully selected his weapons beforehand and carried out his plan in a vicious manner by inflicting multiple incision wounds on the deceased.[87] Given the graveness of his offence and the high degree of premeditation, the court prioritised retribution over rehabilitation, despite his young age and serious mental disorder.[88]

V. Conclusion

In conclusion, rehabilitation is generally presumed to be the dominant sentencing consideration in the sentencing of young offenders. However, especially in cases of young offenders committing serious offences, the courts will consider various other factors such as the degree of premeditation by the offender, his/her propensity for re-offending and the protection of the public alongside the offender’s young age in calibrating the appropriate sentence. These other factors may also displace rehabilitation as the dominant sentencing consideration in certain cases. Although the courts recognise that young offenders may not possess the same level of cognitive maturity as adults at the time of their offence and acknowledge that they are still in their formative years, it is important to set out and account for the circumstances in which an offender’s young age would be of “limited mitigating value, if at all … lest age be seen to be a licence for the young and calculating to commit serious crimes”,[89] as aptly concluded by the court in Purwanti Parji.

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* Year 4 and Year 3 LL.B. students, Yong Pung How School of Law, Singapore Management University. The authors of this article are grateful to Assistant Professor Aaron Yoong, Principal Lecturer Ong Ee Ing as well as Ivan Tang and Isabelle Lim for their review. All errors remain our own.

[1] See, eg, Selina Lum, “River Valley High School death: Teen sentenced to 16 years’ jail for killing schoolmate with axe in 2021”, The Straits Times (1 December 2023) <https://www.straitstimes.com/singapore/courts-crime/teen-pleads-guilty-to-killing-schoolmate-with-axe-at-river-valley-high-school-in-2021> (accessed 4 August 2024) and Selina Lum, “5 years’ detention for teen who killed father when he was 14”, The Straits Times (24 January 2022) <https://www.straitstimes.com/singapore/courts-crime/5-years-detention-for-teen-who-killed-father-in-loyang-condo> (accessed 4 August 2024).

[2] Public Prosecutor v CNK [2023] SGHC 358.

[3] Public Prosecutor v CNK [2023] SGHC 358 at [5].

[4] Public Prosecutor v CNK [2023] SGHC 358 at [39].

[5] A Karthik v Public Prosecutor [2018] 5 SLR 1289 at [3].

[6] A Karthik v Public Prosecutor [2018] 5 SLR 1289 at [33].

[7] Attorney-General Chambers, “Sentencing in Singapore” at p 12 <https://www.agc.gov.sg/docs/default-source/default-document-library/guide-on-sentencing-in-singapore-(final).pdf> (accessed 20 May 2024).

[8] Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 at [28].

[9] Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449.

[10] Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 at [77] and [78].

[11] Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 at [77].

[12] Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 at [77].

[13] Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 at [77].

[14] Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 at [77].

[15] Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 at [78].

[16] Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 at [78].

[17] Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 at [78].

[18] Public Prosecutor v Mohammad Al-Ansari bin Basri [2008] 1 SLR(R) 449 at [29], [51], [52] and [78].

[19] Public Prosecutor v Norezam bin Mohsin [2007] SGHC 180.

[20] Public Prosecutor v Norezam bin Mohsin[2007] SGHC 180 at [2].

[21] Public Prosecutor v Norezam bin Mohsin [2007] SGHC 180 at [3].

[22] Public Prosecutor v Norezam bin Mohsin [2007] SGHC 180 at [3].

[23] Public Prosecutor v Norezam bin Mohsin [2007] SGHC 180 at [3].

[24] Dewi Sukowati v Public Prosecutor [2017] 1 SLR 450 at [21].

[25] Stanley Yeo, Neil Morgan & Chan Wing Cheong, Criminal Law in Singapore (LexisNexis, 2022) at paras 4.1 and 4.2.

[26] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220.

[27] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [9] and [12].

[28] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [28].

[29] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [28].

[30] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [31].

[31] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [35].

[32] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [35].

[33] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [26].

[34] Public Prosecutor v Muhamad Hasik bin Sahar [2002] 1 SLR(R) 1069 at [39]. 

[35] Public Prosecutor v Muhamad Hasik bin Sahar [2002] 1 SLR(R) 1069 at [39].

[36] Public Prosecutor v Sumanthiran s/o Selvarajoo [2017] 3 SLR 879.

[37] Public Prosecutor v Sumanthiran s/o Selvarajoo [2017] 3 SLR 879 at [2].

[38] Public Prosecutor v Sumanthiran s/o Selvarajoo [2017] 3 SLR 879 at [85] and [86].

[39] Public Prosecutor v Sumanthiran s/o Selvarajoo [2017] 3 SLR 879 at [87].

[40] Public Prosecutor v Sumanthiran s/o Selvarajoo [2017] 3 SLR 879 at [95].

[41] Public Prosecutor v Sumanthiran s/o Selvarajoo [2017] 3 SLR 879 at [1].

[42] Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300 at [30].

[43] Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300.

[44] Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300 at [30].

[45] SINDA is a charity organisation established in 1991 for the Indian community in Singapore. SINDA’s Family Service Centre offers counselling by trained social work practitioners to individuals and families facing financial, marital, parenting, as well as other interpersonal and family related issues and challenges.

[46] Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300 at [48].

[47] Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300 at [48].

[48] Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300 at [44] and [74].

[49] Praveen s/o Krishnan v Public Prosecutor [2018] 3 SLR 1300 at [74] and [79].

[50] Public Prosecutor v Sumanthiran s/o Selvarajoo [2017] 3 SLR 879 at [90].

[51] Public Prosecutor v Sumanthiran s/o Selvarajoo [2017] 3 SLR 879 at [89].

[52] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [33] and [35].

[53] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [26] and [35].

[54] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [34].

[55] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [33].

[56] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [33].

[57] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [35].

[58] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [50].

[59] Courts have considered significantly lower IQ, estimated mental age and lack of ability to control impulses as indicative of an intellectual disability.

[60] Public Prosecutor v ASR [2019] 1 SLR 941.

[61] Public Prosecutor v ASR [2019] 1 SLR 941 at [113].

[62] Ministry of Home Affairs, “Oral Reply to Parliamentary Question on Sentencing Options for Intellectually Disabled Offenders by Mr Amrin Amin, Senior Parliamentary Secretary, Ministry of Home Affairs and Ministry of Health” (2018) <https://www.mha.gov.sg/mediaroom/parliamentary/oral-reply-to-parliamentary-question-on-sentencing-options-for-intellectually-disabled-offenders-by-mr-amrin-amin-senior-parliamentary-secretary-ministry-of-home-affairs-and-ministry-of-health/&gt; (accessed 26 May 2024).

[63] Ministry of Home Affairs, “Oral Reply to Parliamentary Question on Sentencing Options for Intellectually Disabled Offenders by Mr Amrin Amin, Senior Parliamentary Secretary, Ministry of Home Affairs and Ministry of Health” (2018) <https://www.mha.gov.sg/mediaroom/parliamentary/oral-reply-to-parliamentary-question-on-sentencing-options-for-intellectually-disabled-offenders-by-mr-amrin-amin-senior-parliamentary-secretary-ministry-of-home-affairs-and-ministry-of-health/&gt; (accessed 26 May 2024).

[64] Ministry of Home Affairs, “Oral Reply to Parliamentary Question on Sentencing Options for Intellectually Disabled Offenders by Mr Amrin Amin, Senior Parliamentary Secretary, Ministry of Home Affairs and Ministry of Health” (2018) <https://www.mha.gov.sg/mediaroom/parliamentary/oral-reply-to-parliamentary-question-on-sentencing-options-for-intellectually-disabled-offenders-by-mr-amrin-amin-senior-parliamentary-secretary-ministry-of-home-affairs-and-ministry-of-health/&gt; (accessed 26 May 2024).

[65] Public Prosecutor v ASR [2019] 1 SLR 941 at [113].

[66] Public Prosecutor v ASR [2019] 1 SLR 941 at [12].

[67] Public Prosecutor v ASR [2019] 1 SLR 941 at [3].

[68] Public Prosecutor v ASR [2019] 1 SLR 941 at [106] and [113].

[69] Public Prosecutor v ASR [2019] 1 SLR 941 at [103].

[70] Public Prosecutor v ASR [2019] 1 SLR 941 at [108] and [110].

[71] Public Prosecutor v ASR [2019] 1 SLR 941 at [3].

[72] Public Prosecutor v ASR [2019] 1 SLR 941 at [113] and [159].

[73] Public Prosecutor v ASR [2019] 1 SLR 941 at [102].

[74] Public Prosecutor v ASR [2019] 1 SLR 941 at [114] and [115].

[75] Public Prosecutor v ASR [2019] 1 SLR 941 at [115].

[76] Public Prosecutor v ASR [2019] 1 SLR 941 at [115].

[77] Public Prosecutor v ASR [2019] 1 SLR 941 at [136].

[78] Public Prosecutor v ASR [2019] 1 SLR 941 at [159].

[79] Public Prosecutor v ASR [2019] 1 SLR 941 at [159].

[80] Public Prosecutor v Kong Peng Yee [2018] 2 SLR 295.

[81] Public Prosecutor v Kong Peng Yee [2018] 2 SLR 295 at [65].

[82] Public Prosecutor v Kong Peng Yee [2018] 2 SLR 295 at [66].

[83] Public Prosecutor v Kong Peng Yee [2018] 2 SLR 295 at [65].

[84] Public Prosecutor v Kong Peng Yee [2018] 2 SLR 295 at [65].

[85] Public Prosecutor v CNK [2023] SGHC 358 at [3] and [36].

[86] Public Prosecutor v CNK [2023] SGHC 358 at [25] and [39].

[87] Public Prosecutor v CNK [2023] SGHC 358 at [2] and [25].

[88] Public Prosecutor v CNK [2023] SGHC 358 at [7].

[89] Purwanti Parji v Public Prosecutor [2005] 2 SLR(R) 220 at [35].