Trishna Rajan Menon

S9242797H
G52
Professor Ong Ee Ing
Word Count: 2485
Introduction

1 This discussion makes the argument that Singapore has not successfully given the welfare and best interests
of the juvenile first and paramount consideration.

2 As a general framework, Singapore has obligations under the United Nations Convention on the Rights of
the Child (UNCRC)1 to place the interests of the child as paramount consideration in its legal system,
amongst other sectors. However, this contradicts the primary objective of the criminal justice system in
Singapore to repress crime. Therefore, at best, the juvenile justice system can only seek to balance the
juveniles interests with that of the public interest. In an Asian society based on collective morality, it would
be irresponsible for the justice systems to allow as broad principle the public welfare to be superseded
by the interests of the individual.

3 Therefore, this discussion will first cover the inherent tensions between the welfare principle and the
functions of the criminal justice system. It will then examine adherence to the principle by way of the scope
of punishments available to juveniles, sentencing policies, as well as the category of serious offences.

Scope of the discussion

4 The treatment of juvenile offenders in the criminal justice system (CJS) encompasses the wide-ranging
criminal process, from arrest to order, and draws upon various legislation, relevant case law, and is informed
by social policy. However, this discussion considers only juvenile offenders juveniles who have been
charged and have either plead guilty to or have been found guilty of an offence and excludes juvenile
delinquency or the pre-trial process. Consequently, the focus is on court intervention.

5 The treatment of juvenile offenders is prescribed primarily by the Children and Young Persons Act
(CYPA).2 A juvenile offender refers to an offender who is between 7 years of age and below 16 years of
age,3 whose trial will typically commence in the Youth Court (YC).4 The YC is presently subsumed under
the Family Justice Courts, which reinforces Singapores perspective that youthful crimes are not isolated
occurrences, but are part of a broader narrative involving family dysfunction5.

1
United Nations Humans Rights Website, Convention on the Rights of the Child <http://www.ohchr.org/EN/ProfessionalInterest
/Pages/CRC.aspx> (Accessed 14 Oct 2016).
2
Children and Young Persons Act (Cap 38, 2001 Revised Edition) (CYPA).
3
Id, at s 2.
4
Id, at s 33: Subsections (2) and (3) prescribe exceptions in cases where the offence is only triable by the High Court, unless the
Public Prosecutor applies to the Youth Court to try the offence with the consent of the legal representative of the accused, and also
where a joint charge is made with a person above 16 years of age.
5
Sundaresh Menon, Chief Justice, Attorney Generals Chambers, Harnessing the law to benefit our youth, keynote address at
Conference on At-Risk Youth 2015: Achieving, Connecting and Thriving (3 Nov 2015) (Harnessing the law to benefit our youth) at
[38].
 Welfare and best interests
6 Newly introduced in 2011, Section 3(b) of the CYPA states: [I]n all matters relating to the administration
or application of this Act, the welfare and best interests of the child or young person shall be the first and
paramount consideration.6 The term paramount has been given its plain meaning by the courts and refers
to supersession of any other consideration.7 Section 3(b), therefore, refers to a welfare approach or principle8
whereby the juveniles interests can no longer be given adequate consideration they must be given supreme
consideration.

7 Welfare refers to minimizing harm and the maximizing the prospects of the childs success despite his
adverse circumstances.9 It can also be generally defined as the material and non-material aspects relating
to the wellbeing10 of the person, which falls in line with Singapores social policy.

8 Section 3(b)11 is a stronger articulation of the wording under Article 3 of the UNCRC12, but neither
documents define the meaning of best interests. The JJCPCA in India, counterpart to CYPA, regards best
interest as ensur[ing] fulfilment of his basic rights and needs, identity, social well-being and physical,
emotional and intellectual development.13 Singapore also expressed the view that it is in the young persons
best interests for his rights to be exercised in accordance with the culture, values and morals of Singapore.14
Arguably, this indicates that Singapores perspective of best interest at the outset is tempered by the
interests of the public. Despite the lack of an objective definition, the best interests of a juvenile are
procedurally determined on a case-by-case basis. Before passing an order, the YC takes into consideration
the juveniles probation report15 and other relevant material, including the expressed wishes of the juvenile,
in order to determine what is in his best interests.16 Consequently, success refers to the welfare principle
having supreme influence and overriding any other consideration relating to the decision in question.

Contradictory Aims

9 The notion of giving paramount importance to the welfare of the offender is inherently contradictory to the
overarching function of the criminal justice system (CJS) and the juvenile justice system (JJS).

6
CYPA, supra n 2, at s 3(b).
7
BNS v BNT [2015] 3 SLR 973 (BNS v BNT) at [19].
8
Id, at [5]. This terminology demonstrates the general notion of supremacy of the childs welfare, albeit used in reference to the
childs relocation.
9
Harnessing the law to benefit our youth, supra n 5, at [25].
10
JBE v JBF [2015] 3 SLR 1271 at [27].
11
CYPA, supra n 2, s 3(b).
12
Supra n 1, at Article 3.
13
Juvenile Justice (Care and Protection of Children) Act 2015 (No. 2 of 2016) (India) (JJCPCA) s 2(9).
14
Initial Report of States parties on the Convention on the Rights of the Child (March 2003) (Initial Report on UNCRC) at [115].
15
CYPA, supra n 2 at ss 42(9) and 42(10).
16
Harnessing the law to benefit our youth, supra n 5, at [38].
10 Under a crime control model of criminal justice,17 the ultimate function of the CJS is to repress criminal
conduct in order to protect the public.18 Therefore, Singapores general perspective of justice leans toward
delivering justice to the accused or the greater society as opposed to the offender.19 On the other hand, the
function of Singapores separate JJS is to reform and reintegrate young offenders back into society as honest
and productive citizens.20 Although the welfare and future prospects of the individual is deliberately
contemplated21, such a system ultimately serves the public interest in reducing recidivism and reducing crime
in general22. This balance between individual and public interests is reinforced by the Youth Courts adoption
of a multi-pronged approach to sentencing.23 By weighing the need for rehabilitation against the need for
personal accountability, the Court balances legislative concerns for the offenders welfare with its public
duty to protect the society and its values.24

11 In either case, the crux of the matter is balance. The weight of importance attached to the offenders welfare
is necessarily dependent on the public interest at stake this balancing act is a duty of the justice system that
is explicated in both social policy25 and the judicial practice of proportionality26 (discussed below). It would
therefore be irresponsible for the JJS, in principle or practice, to categorically give paramount importance to
the welfare and interests of the juvenile offender. This is particularly so, where the offender has already been
found guilty, and has thereby defied the will and values of society as encompassed in its criminal law.27

Range of Punishments

12 The range of punishments statutorily permitted for a juvenile generally include absolute or conditional
discharge, community service order, probation, detention, juvenile rehabilitation centre and reformative
training28. Where a juvenile above 14 years of age29 is tried in the High Court,30 however, sentences of
imprisonment and caning are also allowed. The death penalty cannot be ordered against a juvenile under any
circumstances.31 Personal accountability for offending behaviour warrants a certain degree of restriction on

17
Chan Sek Keong, From Justice Model to Crime Control Model at International Conference on Criminal Justice Under Stress:
Transnational Perspectives, New Delhi, India. (2006) at [21]
18
Id, at [6]-[7].
19
Id, at [4].
20
Youth Court (Singapore) Website, Youth Court Matters <https://www.familyjusticecourts.gov.sg/Common/
Pages/YouthMatters.aspx#y> (accessed 14 October 2016) (Youth Court).
21
Kow Keng Siong, Sentencing Principles in Singapore (Academy Publishing, 2009) (Sentencing Principles in Singapore) at
[06.120].
22
Id, at [06.118]
23
Youth Court, supra n 20.
24
Initial Report on UNCRC, supra n 14, at [94].
25
Id, at [115]: The juveniles best interests are to be exercised in conformity with prevailing values and beliefs.
26
Interview with the Honourable Justice of Appeal M. Karthigesu (1995) 16 Sing. L. Rev. 1 at p 16.
27
S Chandra Mohan, Understanding Criminal Law (LexisNexis, 2015) at p 64.
28
Chan Win Cheong, Changes to the juvenile justice system, Children and Young Persons Act, Singapore Journal of Legal Studies
(1994) (Chan Wing Cheong) at 451.
29
CYPA, supra n 2 at s 2: A young person is defined as being between 14 years of age, and below 16 years of age.
30
CYPA, supra n 2 at ss 33(2), 33(3) and 40(1): These sections prescribe that where an offence is only triable by the High Court, it
will be tried in the High Court unless the Public Prosecutor applies to the Youth Court to try the offence with consent of the legal
representative of the accused. Where a joint charge is made with a person above 16 years of age, it may be heard either by a State
Court or High Court. The court hearing the case, may after conviction, remit the youths case to the Youth Court for sentencing.
31
Criminal Procedure Code (Cap 68, 2012 Rev Ed) at [314].
 the offenders liberties to this extent, the system observes the welfare principle with respect to capital
offences. However, the corporal and custodial (imprisonment and life imprisonment) sentences violate the
juveniles rights to development and active participation in the community32. Singapores own courts have
contemplated the adverse effects of juvenile imprisonment and seek to avoid a crushing sentence33. Apart
from stigmatization that impedes the juveniles personal development as well as his future prospects34, a
corrupt influence of a prison environment could cause the juvenile to return to society more vicious, and
distinctly more anti-social in thoughts and deed35. This not only defeats the purpose of reducing crime, but
also severely hinders the juvenile from reaching his full potential as an individual.

13 Indias non-punitive approach, in contrast, categorically prohibits life imprisonment36, imprisonment37 and
corporal punishment in its detention centres and other institutions38 for petty, serious and heinous offences39
with respect to offenders below 16 years of age. Giving primary to the best interests of the child,40 the
Juvenile Justice Board,41 considers the nature and gravity of the offence, repeat offences and recalcitrance
as subservient considerations.42 On a statutory comparison, both countries share a similar goal of reforming
and reintegrating the offender. However, India expressly regards custodial and corporal punishment as
punitive and therefore unsuitable in the bigger context of catering to the childs basic needs of development
and social re-integration,43 whereas Singapores use of such punishment reflects a more paternalistic and
disciplinarian attitude towards reforming a young person.

Sentencing Policies

14 Given that the overarching aim of punishment is the reduction and prevention of crime,44 public interest
naturally constitutes the foremost consideration of the CJS.45 The JJS, however, attempts to strike a more
even balance between the public interests and the interests of the juvenile offender by using rehabilitation as
the dominant consideration in passing an order.46

32
Supra n 1, at Article 6.
33
Sentencing Principles in Singapore, supra n 23, at [22.027]
34
CYPA, supra n 4, at s 36: This section prohibits the keeping of criminal records of a juvenile found guilty by the Youth Court.
However, if a juvenile is sentenced in the High Court for more serious offences such as culpable homicide, attempted murder,
voluntary grievous hurt, rape and unnatural offences (falling under the Third Schedule) his criminal records may be kept and cannot
be spent (as per s. 7(c) read with the Third Schedule of the Registration of Criminals (Amendment) Act 2005).
35
Dixon [1975] 22 ACTR 13 at [19]-[20].
36
JJCPCA, supra n 13, at s 21.
37
Imprisonment is not an available order for persons under 16, CYPA, supra n 2, at s 18.
38
JJCPCA, supra n 13, at s 82.
39
Id, at s 14(5).
40
Id, at s 3(iv).
41
Pursuant to the JJCPCA, supra n 13, at s 4: The Juvenile Justice Board passes orders as constituted under the Act.
42
Page 17, Comparison on India and Singapore.
43
JJCPCA, supra n 13.
44
Practitioners' Library: Sentencing Practice in the Subordinate Courts (LexisNexis, 3rd Ed, 2013) at p 124.
45
Sentencing Principles in Singapore, supra n 21, at [06.143].
46
Youth Court, supra n 20.
15 In principle, the objective of rehabilitation is to use rehabilitative measures as a method of achieving the
greater goal prevention of crime.47 Although its essence lies in treating the underlying causes of
offending behavior, the juveniles successful rehabilitation and restoration to society ultimately serves the
public interest.48 In other words, the juveniles welfare is neither the first nor paramount consideration.49
Within the rehabilitative framework, the extent to which courts heed the juveniles welfare and best interests
seems to be the personalization of the order. By tailoring a punishment most suited to the individuals
restoration, it augments the juveniles moral and psychological development. The net effect is the betterment
of the individual, which is equally pertinent, whether intended for the sake of society or for the individual
himself. In this regard, it has been argued that the individuals best interests are not incidental consequences,
but deliberate considerations in the sentencing matrix.50

16 In comparison to deterrence and retribution,51 rehabilitation is closer attuned to the welfare and interests of
the juvenile because deterrence achieves a greater societal purpose and retribution directly limits the
juveniles liberties. However, a certain degree of punitive measures52 may have rehabilitative effects in
altering behaviour,53 which will be in the juveniles best interests in the long run because being an honest
and contributing citizen often contributes to a sense of belonging and purpose.

17 It is further purported that it is not in the best interest of the juvenile to be released without any punishment.
Punishment, whether in the form of incarceration or rehabilitation, has the effect of altering values, attitudes
and mind-sets. Therefore, assuming that society asserts an objective sense of morality, state punishment
serves the individuals interest in personal development and betterment - for his own sake.

Serious Offences

18 Although the CYPA posits the welfare of juveniles as paramount, its construction provides sufficient leeway
to apply deterrence and retribution in passing orders. (This is the similar position taken in Australia, where
the court is bound by the Childrens Services Act 1986 but does not neglect deterrence and retribution as
relevant sentencing considerations.) For minor offences where the offender is of good conduct, the courts
more readily adhere to the welfare principle.54 In the particular category of serious offences, rehabilitation
is a dominant, but not overriding consideration in sentencing.55 By adopting a multi-faceted policy

47
Sentencing Principles in Singapore, supra n 21, at [06.116].
48
Id, at [06.119].
49
Ibid.
50
See PP v Goh Lin Yee [2008] 1 SLR 824 at [99].
51
Deterrence operates on the notion that one persons punishment serves to discourage other like-minded individuals from acting in
the same manner and is closely tied to Singapores aims of punishment. Retribution, on the other hand, is meant to punish the offender
for his wrongful behaviour and is employed with proportionality to indicate public disapproval of a particular behavior.
52
Jan Kubanek, Lawrence H. Snyder and Richard A. Abrams, Reward and punishment act as distinct factors in guiding behaviour,
Cognition, Volume 139 (June 2015) at p 154167: This study showed that the effect of punishment on behavior did not increase with
an increase in the magnitude of a penalty.
53
See PP v Mohammad Al-Ansari bin Basri [2008] 1 SLR 449 at [61].
54
Sentencing Principles in Singapore, supra n 21, at [22.003]
55
Id, at [22.007].
 incorporating retribution, deterrence and rehabilitation,56 Singapore courts have not adhered to the welfare
principle.

19 Serious offences refer to those triable by the High Court viz. murder, culpable homicide not amounting to
murder, attempted murder and voluntarily grievous hurt57 and may include drug trafficking, arms offences,
kidnapping, rape and carnal intercourse.58 Where the offence is so heinous, a punitive sanction such as
imprisonment is meted out. For example, in PP v S59, the 15-year-old accused was convicted of multiple
charges of rape, anal intercourse and molestation of his two sisters and brother. He abused his position of
trust, and his multiple acts over the years indicated the lack of impulsive. Therefore, he was sentenced to 20
years imprisonment and ten strokes of the cane. A similar punishment was meted out in PP v Lai Leng
Hwa60 for the trafficking of less than 15g of diamorphine, because two other charges of possession and
consumption were taken into account. These deterrent and punitive measures clearly illustrate how the CJS
does not adhere to the welfare principle.

20 Although punitive punishments are entirely avoided in India, the United Kingdom also takes a holistic
approach hinged on balance, by tempering rehabilitation with the nature of gravity of the crime. In Tracy
Hancock,61 although the court agreed that the accuseds sentence of probation may reform her behaviour, it
was deemed too lenient.62

21 A sentencing approach underpinned by balance does not necessarily preclude the primacy of any particular
consideration. However, even within a general framework of balance, the public interest seems to supersede
the juveniles interests. This situation is particularly acute with respect to serious offences, where the more
heinous the offence, the more the courts turn away from rehabilitation towards deterrence and retribution.

Disparity in Application

22 The welfare principle has been expressly applied in situations where the juvenile is an innocent party,
particularly relating to family disputes. In cases where the juvenile is perpetrator, the welfare principle does
not apply with as much rigour. For example, In BNS v BNT63, the CA adjudicated on the issue of the childs
relocation, observing that the childs welfare will override any other consideration and is the golden thread

56
Youth Court, supra n 20.
57
CYPA, supra n 2, at s 38.
58
Supreme Court (Singapore) Website, Criminal Trials < http://www.supremecourt.gov.sg/rules/court-processes/criminal-
proceedings/types-of-criminal-proceedings/criminal-trials> (accessed 14 October 2016).
59
Public Prosecutor v S [2003] SGHC 70 at [22].
60
PP v Lai Heng Hwa [1991] 2 SLR(R) 214 (PP v Lai Heng Hwa).
61
Sentencing Principles in Singapore, supra n 21, at [22.010].
62
Id, at [22.010].
63
BNS v BNT, supra n 7.
 that runs through all proceedings directly affecting the interest of the children.64 Similarly, the High Court
in JBE v JBF65 adjudicated on custody, citing the primacy of the childs welfare.66

23 This disparity between innocence the finding of guilt was reinforced by Chief Justice Sundaresh Menon
when he highlighted the welfare principle in matters relating to family law. By extension, this can be assumed
to apply to juveniles in need of care and protection as opposed to those in conflict with the law.

Counterarguments

24 Singapores adherence to the welfare principle is seen by the relevant date for determining juvenility. In
contrast to its Indian counterpart67, the Youth Courts orders are based on the age the commencement of
hearing68. Sentencing based on the date on which the accused either pleads guilty or claims trial69 gives
prominence to reformation and reintegration because it evaluates the juvenile in his present condition,
thereby allowing the state to pass orders well-fitted to the individuals needs.70 However, in practice, this
results in uncertainty as to the mode of punishments available to a juvenile (especially those turning 16 years
old, who would no longer be protected under the CYPA). As observed in PP v Lai Heng Hwa71 and Ho Boon
Thong72, this distinction deprives the juvenile from the benefit of the legislation and works against his
interests, particularly when delays in hearings may not be in their control.73

Conclusion

25 An external validation of Singapores legal system, underpinned by Asian communitarian values and specific
to the moral, political and socio-economic conscience of its people, may not be the best measure of the
effectiveness of our system. We have certainly not adhered to giving the welfare and best interests of the
juvenile offender paramount consideration in the criminal justice system. The reasons for this include the
inherent tensions between the two ideologies, which are exemplified by the extensive scope of punishment
on juveniles, the policies used in passing orders, and juvenile treatment under serious offences. Even though
Singapore has several frameworks in place to treat juveniles according to their presumed level of moral
culpability, it has been careful in applying the welfare principle in practice. For these reasons, it is dutiful
and prudent of Singapore to not adhere strictly to the welfare principle, given the paternalistic attitudes of
the government and society.

64
Id, at [19].
65
JBE v JBF, supra n 10.
66
Id, at [21]-[26].
67
Jurisdiction is based on the time of commission of the offence; see Ranjeet Singh v State of Haryana, 2008 (3) SCC (Cri) 784.
68
CYPA, supra n 2, at s 33(6) subject to s 33(7).
69
Harnessing the law to benefit our youth, supra n 5 at p 32.
70
Chan Wing Cheong, supra n 28, at 451.
71
PP v Lai Heng Hwa, supra n 62.
72
Ho Boon Thong [1992] 1 SLR 756.
73
Chan Wing Cheong, supra n 28, at 451.
I declare that I have abided by SMUs Code of Academic Integrity.