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8 S.Ac.L.J.

The Attorney-Generals Powers Over Criminal Prosecution

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THE ATTORNEY-GENERALS POWERS


OVER CRIMINAL PROSECUTION
The decision of Chief Justice Yong Pung How in PP v Norzian bin Bintat1
raises a question of fundamental importance as to the extent of the power
of the Attorney-General over criminal prosecutions in Singapore. In that
case, the Chief Justice upheld the power of the court to compound a criminal
case at the behest of the complainant despite the objection of the Public
Prosecutor. He held that, though the Public Prosecutor had supervisory
powers over the prosecution, the decision whether to allow composition
has always been and still is a judicial decision.2 In his view, a
compoundable offence may be compounded by the victim even if the
prosecution was mounted by the Public Prosecutor and the Public
Prosecutor objects to the composition.
The decision calls for a study of the power of the Public Prosecutor, an
alter ego of the Attorney-General, over criminal prosecutions and raises
especially, the issue as to whether the Public Prosecutor can countermand
a complainants consent to compound an offence and insist on the trial
proceeding despite such consent. The Chief Justice made a comparative
survey of the authorities in India, Malaysia and Singapore in arriving at the
decision. Since the question deserves a wider comparative study, particularly
of the power of prosecution by the Attorney-General, this article looks at
the position in several other Commonwealth jurisdictions as well. It begins
with a statement of basic principles affected by the area of law.
1. The Unemendability of Crime
In defining a crime and distinguishing it from other wrongs like torts or
breaches of contracts, Kenny, in his Outlines of Criminal Law, identified
emendability as the single criterion which distinguished crimes from other
wrongs.3 A crime was unemendable because a crime was directed not only
at the victim but at society at large and it was therefore not possible for
the victim alone to forgive the offender either through mercy or because
of financial rewards provided for such forgiveness.4 The public interest in
the crime as well as the social objectives such as deterrence of similar
behaviour further justify crime being treated as unemendable.
But, there do arise circumstances in which there is no social interest served
in the prosecution of the offender. In such circumstances, theoretically, the
state has the power to grant a pardon to the offender, permit the

1
2
3
4

[1995] 3 SLR 462.


At p 472.
Kennys views on the definition of crime appear as an appendix in the edition of Kenny,
Outlines of Criminal Law (1962).
In PP v Norzian bin Bintat, Chief Justice Yong discussed this point. He referred to
Elworthy v Bird (1825) 2Sim & St 479 and Kier v. Leeman (1846) 9 QB 371.

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composition of the offence or decide not to prosecute. The issue is in


which agency of the state the power resides. Is the power vested in the
Attorney-General or in the judicial organ of the states? More specifically,
can the Attorney-General insist that the criminal prosecution he has initiated
be continued, when the offence is compoundable, the victim and the
offender are prepared to compound it and the judge hearing the case
believes that the case should be compounded? It is necessary to begin with
the position in English law as to where the power resides. The model of
the powers of Commonwealth Attorneys-General are provided for in the
office of the Attorney-General in England. It must, however, be pointed
out that there is no provision for compounding offences in English law as
there is in the Criminal Procedure Codes of India, Singapore and Malaysia.
2. The English Law:
The office of the Attorney-General in the Commonwealth jurisdictions is
modelled on the office as it evolved in England.5 There is little doubt that
the office both in Singapore and Malaysia are based on the office as
established in English law, without the political connotations which
accompany that office in England.6 In England, the Attorney-General has
a dual function, both as a political figure who is a member of the cabinet
and as the principal law officer of the Crown. It has come to be established
that the two roles should not be mixed and that the holder of the office
should not be influenced by political considerations in exercising his legal
functions as the law officer of the Crown. The discretion he exercises has
been described as quasi-judicial, the term meaning not the exercise of a
power which could be reviewed by the courts but the exercise of a power
akin to a judicial power, requiring detachment and neutrality in its exercise.
Under English law, it is well settled that in matters which concern the
public at large, the Attorney-General is the guardian of the public interest.7
This is particularly so in the area of criminal prosecutions. The decision to
prosecute and maintain the prosecution are prerogative powers which reside
in the Crown and are exercised by the Attorney-General. There is no
authoritative statement as to the factors to be taken into account in
exercising this discretion. However, Lord MacDermott, in a Hamlyn
Lecture, has identified some of the factors that should affect the exercise
of this discretion.8
5

6
7
8

J.LL.J. Edwards, The Law Officers of the Crown (1964). The office of the Director of
Public Prosecutions was constituted in 1879 by Act of Parliament (Prosecution of Offences
Act). He is subject to the directions of the Attorney-General but is otherwise independent.
For Singapore, see Tan Boon Teik, The Attorney-General [1988] Malayan Law Journal
lviii.
Denning MR in AG ex rel. McWhirter v I.B.A. [1973] 1 QB 629.
See also a statement made by Sir Hartley Shawcross, a former English Attorney-General,
which is widely quoted, explaining the discretionary powers of the Attorney-General in
matters of criminal prosecution. It is reproduced in part in Sir Kenneth Roberts-Wray,
Commonwealth and Common Law (1966) pp 351356.

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Though efforts have been made to subject the discretion over prosecutions
exercised by the Attorney-General to judicial control, these have generally
resulted in failure. In Connelly v DPP,9 the position of the DPP was that
if there was an abuse of the power to prosecute, this abuse was for the
Crown to correct and not a matter for the courts. An abuse of the process
of private prosecutions could be corrected through the Attorney-General
entering a nolle prosequi. Lord Devlin responded to this proposition thus:
The fact that the Crown has, as is to be expected, and private
prosecutions have (as is also to be expected for they are usually
public authorities), generally behaved with great propriety in the
conduct of prosecutions has up till now avoided the need for any
consideration of this point. Now that it emerges, it is seen to be one
of great constitutional importance. Are the courts to rely on the
executive to protect their process from abuse? Have they not
themselves an inescapable duty to secure fair treatment for those
who come or are brought before them? To questions of this sort
there is only one possible answer. The courts cannot contemplate for
a moment the transference to the executive of the responsibility for
seeing that the process of the law is not abused.
In Lord Devlins view, the matter concerned separation of powers and
became one of constitutional significance, involving individual liberties.10
The courts, in his view, become the bulwark against the abuse of the
executive discretion to prosecute and, like any other executive discretion,
the possibility of the control of the discretion of the Attorney-General to
prosecute remains, though confined to extreme circumstances of abuse.
But, if any doubt existed that the speech of Lord Devlin recognized the
existence of a wide power of controlling the institution of prosecutions in
the courts, it was soon dispelled in DPP v Humphreys11 . Viscount Dilhorne,
himself a former Attorney-General, referring to the power of the courts
said:
If there is the power to stop a prosecution on indictment in limine,
it is in my view a power that should only be exercised in the most
exceptional circumstances a judge must keep out of the arena. He
should not have to appear to have any responsibility for the institution
of a prosecution. The functions of prosecutors and of judges must not

[1964] AC 1254. The issue was whether a person acquitted of murder could plead autrefois
acquit to a charge of robbery arising from the same facts.
10 Lords Morris and Hodson, who also delivered speeches in the case, did not share this
view. But, Lords Reid and Pearce supported Lord Devlin and saw in the plea of autrefois
acquit itself an inherent power to protect the courts process from abuse. Lord Hodson
cautioned that the view advocated by Lord Devlin was not based on any guiding principles
according to which the courts could act in deciding that the prosecution was an abuse of
process and would depend on the subjective view of each judge.
11 [1977] AC 1.

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be blurred. If a judge has power to decline to hear a case because he


does not think it should be brought, then it soon may be thought that
the cases he allows to proceed are cases brought with his consent or
approval.
Lord Salmon was more forthright as to whether the judge had any discretion
in the matter of criminal prosecutions. He observed:
...a judge has not and should not appear to have any responsibility
for the institution of prosecutions nor has he any power to refuse to
allow a prosecution to proceed merely because he considers that, as
a matter of policy, it ought not to have been brought. It is only if the
prosecution amounts to an abuse of the process of the court and is
oppressive and vexatious that the judge has the power to intervene.
Fortunately, such prosecutions are hardly ever brought but the power
of the court to prevent them is, in my view, of great constitutional
importance and should be jealously preserved.
The power of the courts is kept alive though confined to the most
exceptional cases.12 An eminent expert on the power of Attorneys-General
in English law, Professor Llewelyn Edwards, referring to the two cases, has
observed:13
My reading of the two English leading cases, Connelly and Humphrys,
lends no colour to the proposition that there exists a general
accountability to the courts rather than to Parliament for the manner
in which the Law Officers of the Crown and their agents exercise
their discretionary powers in the field of prosecutions. No such claim
can reasonably be deduced from the very broad statements attributed
to those Lords of Appeal who have espoused the abuse of process
principle as a natural corollary to the inherent power of a judge to
control the procedure of his court. The illustrations used to exemplify
the principle, as well as the results of its application in the cases
concerned, mark the very exceptional circumstances in which it would
be constitutionally proper for the court to impose its discretion over
that of the Crown and its representatives.
In English law, the power of the Attorney-General to institute and continue
criminal proceedings is almost absolute14 and is only subject to interference

12 An instance given of such an exceptional case by Lord Edmund Davis in Humphrys is


R v Riebold [1967] 1 WLR 674.
13 J.L1.J. Edwards, The Attorney-General, Politics and the Public Interest (1984) p129. The
spectacular conflict in Gouriet v Union of Post Office Workers [1978] AC 435 did not
concern prosecutorial discretion.
14 To a large extent these powers have been transferred to the Director of Public Prosecutions
and the Crown Prosecution Service. There still remains the theoretical control over the
DPP and the Crown Prosecution Service in the Attorney-General. As to their powers,
see Raymond v Attorney-General [1982] 2 All ER. 489.

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by courts in extreme circumstances of abuse of process.15 It is recognized


that the institution and maintenance of such prosecutions is an executive
function which should not be subjected to the control of the courts. At the
same time, there is a need to reconcile this proposition with the inherent
power of the court to prevent the abuse of its process and the need for the
protection of individual rights in the face of an abuse of executive powers.
The English courts have found the balance in asserting the general,
uncontrolled discretion in the Attorney-General to institute and maintain
criminal proceedings, subject to the power of the courts, in rare and extreme
instances, to discontinue them where such institution or maintenance
amounts to an abuse of the process of the courts. But the tension between
the courts inherent power to prevent abuse of its process and the AttorneyGenerals power to institute and maintain criminal proceedings must
continue in the absence of a clearer demarcation of the extent of these
powers. For the moment, it would be safe to conclude that the dominant
power in these matters is recognized as that of the Attorney-General.
Practical considerations as well as policy dictate that this be so. In the
absence of clear rules as to when courts can interfere with the power of the
Attorney-General, it would be unwise to substitute the subjective views of
the individual judge for the decision of the Attorney-General in whom the
power of protecting the public interest traditionally resides. The dual nature
of the office of the Attorney-General makes him responsive to the public
interests in a manner the courts can never be.
3. Australian Law:
In Australia, the issue of the extent of the Attorney-Generals discretion
to institute criminal proceedings was raised in Barton v The Queen16 . The
appellant queried the grounds on which the Attorney-General of New
South Wales had filed an ex officio indictment, thus depriving him of a
right to a preliminary hearing. The appellant further alleged that the
procedure was adopted at the instance of the premier of the state. The
High Court declined to hear evidence in support of the latter allegation
before deciding the issue as to whether it would be permissible to challenge
the Attorney-Generals decision to file an ex officio indictment as the
means of instituting the proceedings. In the leading judgment in the case,
Gibbs and Mason JJ held that the powers of the Attorney-General relating
to criminal prosecutions, as stated in s.5 of the Australian Courts Act,
1828, were no different from those enjoyed by the Attorney-General in

15 A general notion of abuse of process has been developed in more recent times by the
English courts. There is nothing to suggest that this notion will be used to curtail the
powers of the Attorney-General. See for the recent cases, Elguzouli-daf v Commissioner
of Police of the Metropolis [1995] 1 All ER 834.
16 (1980) 32 ALR 449.

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England and that they were prerogative powers the exercise of which could
not be reviewed by the courts.17 The judgment also gave a policy reason
why courts should not concern themselves with the discretion of the
Attorney-General over prosecutions. It pointed out that it would be
undesirable that the court, whose ultimate function it is to determine the
accuseds guilt or innocence, should become too closely involved in the
question whether a prosecution should be commenced.18
But, the judgment kept alive the possibility of the courts interfering with
the prosecution in circumstances of abuse of process. The judges reviewed
the recent English cases such as Connelly and Humphrys and on the basis
of these cases, held that in an appropriate case, the court could interfere
in order to prevent an abuse of process.
Wilson J who also wrote a judgment in the case conceded that there was
a jurisdiction in the courts to stop criminal proceedings when such an
action is necessary to deal with an abuse of process but that this power was
to be reserved for use in exceptional cases. He was more inclined to the
view that powers exercised by the Attorney-General were unreviewable by
the courts. He observed:19
In this, as in other aspects of the administration of the criminal
justice system the courts and the community must rely heavily upon
the integrity of the Attorney-General for the faithful discharge of the
prerogatives and privileges of his high office, leaving his actions to be
questioned, if at all, in Parliament.
The Australian judicial discussion seems inclined towards asserting the
primacy of the discretion of the Attorney-General in instituting and
maintaining criminal prosecution and shows a greater fidelity to the fact
that the origin of the power lies in the prerogatives of the Crown. Yet,
there is retained a residual power in the courts to interfere with the exercise
of such powers, when they indicate an abuse of the process of the courts
or where there is an unfairness to the accused involved in the exercise of
the discretion.20 But, the judgment is unhelpful in that it does not identify

17 The judgment identified a cluster of powers as included in the prerogative powers exercised
by the Attorney-General. Besides the power over prosecutions, they included the power
to enter a nolle prosequi and the power to grant or refuse a fiat in connection with a
relator action. London County Council v Attorney-General [1902] AC 165; Gouriet v
Union of Post Office Workers [1977] AC 435. The judgment cited with approval the view
of Edwards in the Law Officers of the Crown p 289 that in all these instance, embracing
both civil and criminal proceedings the Attorney-General is accountable not to the courts
but to Parliament for the manner in which he discharges his discretionary authority.
18 32 ALR at p 458.
19 32 ALR at p 475.
20 There is extensive discussion in the judgments in Barton whether the bypassing of the
committal proceedings amounted to such unfairness.

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the exceptional circumstances in which there could be judicial interference


with the powers of the Attorney-General.21
4. Canadian Law:
In Canada, courts seem to have been attracted towards the idea of the
existence of a residual power in the courts to review the Attorney-Generals
decision, particularly after the dictum of Lord Devlin in Connelly v DPP.
But, the Canadian Supreme Court disapproved of this tendency in R v
Rourke,22 where the traditional position that the exercise of the discretion
of the Attorney-General should not be reviewed by the courts was restored.
However, the inherent power of the courts to review in situations of abuse
of process is kept alive in the judgments.
Canadian courts have tended to view the matter as involving the principle
of separation of powers. They have viewed the decision of the AttorneyGeneral to prosecute as an executive decision which is not reviewable by
the courts. It would, according to a Canadian court, be contrary to
constitutional practice for courts to review executive decisions as it would
be for the executive to review judicial decisions.23 Another court pointed
out that the criminal law system would be in a shambles if such reviews
were permitted freely.24 Yet, different provincial courts seem to have taken
different approaches to the issue. More recently, some of the decisions
have gone off at a tangent, widening considerably the basis of the residual
power of the courts to interfere. These decisions give greater emphasis to
the dictum of Lord Devlin that fairness to the accused and abuse of process
necessitate judicial review of the Attorney-Generals decision. The
provisions of the Charter of Rights in Canada have assisted in this tilt.
What has resulted in Canada are two lines of cases, one adhering to the old
proposition that the Attorney-Generals powers to prosecute are not subject
to review, the other relying on and widening abuse of process as a ground
for judicial review. There is yet to be an authoritative pronouncement on
which line of cases should be accepted. But, the Canadian views are likely
to be of little value to the debate in other Commonwealth jurisdictions in
the absence of a strong Bill of Rights similar to the one in Canada. Their
value may however, lie in the fact that despite such a Bill of Rights, the

21 Barton is discussed by Edwards, The Attorney-General, Politics and the Public Interest at
pp 121123. In Australia, most of the later cases have involved ex offficio indictments by
the Attorney-General. In some cases, the courts have held that the use of such indictments
are an abuse of process.
22 (1977) 35 CCC (2d) 129.
23 Re Balderstone and the Queen (1983) 8 CCC (3d) 532.
24 Regina v Moore (1986) 26 CCC (3d) 474 at p 476.

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notion of the absolute discretion of the Attorney-General over criminal


prosecutions still continues to hold sway.25
5. Indian Law:
Unlike in the Commonwealth jurisdictions considered above, the office of
the Attorney-General in India is created by the Constitution. Articles 76
and 165 provide respectively for the appointment of the Attorney-General
of India and the Advocate-Generals of the Indian States.26 Though the
office is created in the Indian Constitution, the powers of the office relating
to criminal prosecution are not specified in the section. Though the office
is described as not a political office in the leading texts on Indian
constitutional law, by convention, the Attorney-General resigns along with
the government which loses power. 2 7 It should be noted that the
Constitutions of Singapore and Malaysia are different in this respect as
they clearly provide for the power of the Attorney-General to institute,
conduct or discontinue any proceedings for an offence. Neither can the
office be regarded as political offices in the latter countries. These are
significant differences.
The Criminal Procedure Code of India also introduces another peculiarity
not found in the jurisdictions discussed above in that it permits certain
offences to be compounded by the victim. As the Criminal Procedure
Codes of Singapore and Malaysia are modelled on the Indian Code, the
provision relating to the compounding of offences is to be found in the
codes of these countries. The theory of the provision is that minor offences
may be so settled if there are no public interest elements which justify the
prosecution. There is an assumption that such offences are not likely to
implicate public interests to any serious extent.
But, the Code recognises, in essence, the power of the Public Prosecutor
over criminal prosecutions. The Public Prosecutor is an officer who is distinct
from the Attorney-General. The office is provided for in the Indian Criminal
Code.28 The office is peculiar to India and does not bear resemblance to
prosecutorial offices in other Commonwealth jurisdictions. The Public
Prosecutor is appointed directly by the Central or State governments. He

25 The developments of the Commonwealth, especially the developments in the English


law, are relevant to the law in Singapore as these developments could be introduced
through section 5, the casus omissus provision of the Criminal Procedure Code. But, their
introduction is not possible because of contrary instruments in Singapore law which have
priority and provide for the extent of the Attorney-Generals powers.
26 The office of the Advocate-General had existed in the different Indian Presidencies but
the office of the Attorney-General of India was created for the first time by Constitution.
By legislation (Government of India Act, 1919), the Advocate-Generals were to have the
same powers as the Attorney-General in England.
27 H.M. Seervai, The Constitutional Law of India (3rd Ed., 1993), p 1746; Gandhi v Seervai
(1971) 1 SCR 863.
28 Sections 24 and 25.

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prosecutes in the name of the State. He is, in no way, subjected to the


control of the Attorney-General. In this respect, Indian law is at variance
with the law in Singapore and Malaysia, where the Public Prosecutor is an
alter ego of the Attorney-General. The Indian Public Prosecutor derives
his powers from a statute. There is no association of his powers with that
of the common law office of the Attorney-General as in other
Commonwealth countries or any suggestion that these powers are
prerogative powers derived from constitutional doctrines.
The Indian Code vests control over criminal prosecutions in the Public
Prosecutor. A Public Prosecutor is attached to every High Court and is
appointed by the government of the State in consultation with the High
Court. The manner of his appointment itself indicates the nexus between
the office of the Public Prosecutor and the courts. Though the Code does
not indicate this, practice has converted the office into a political office,
the Public Prosecutor relinquishing office, when the government which
appointed him changes. The Federal Attorney-General and the AdvocateGenerals of the States do not concern themselves with criminal
prosecutions.29
The Indian Criminal Procedure Code recognises the right of the public
prosecutor to take over prosecution in a trial commenced by a private
party.30 The public prosecutors power to terminate any criminal proceedings
is expressly stated. The case law that has developed in India is that in the
instances specified in s.320(1) of the Indian Criminal Procedure Code, the
parties may compound the offence on their own by agreement. The list
concerns minor offences which are essentially of a private nature and not
quite serious.31 Many of the offences listed like adultery and defamation
are conduct which would not be regarded as crimes in other common law
jurisdictions.32 In the case of offences listed in s.320(2), the consent of the
courts would be required in addition to the agreement between the victim
and the offender. It has been recognised that such consent should be given
by the courts only on sound grounds.33 Conditions can be imposed on the
offender even where the offence is compounded.34 There is no doubt that
in Indian law supervision may be exercised by the courts over the agreement
of the parties to compound the offence. There is no case law in India on
whether the courts could override the prosecutor where he wishes to
29 For an autobiography of an Indian Attorney-General, see M.C. Setalvad, My Life, Law
and Other Things (1964). These officers are largely concerned with constitutional issues
and civil matters which concern their governments.
30 Section 301.
31 Kelkar, Lectures on Criminal Procedure.
32 The implication for the definition of crime in a system which permits compounding of
conduct recognised as crimes in the penal code are interesting. Obviously, the distinction
between crimes and torts is blurred as a result.
33 Dhanraj v The State [1986] Cr L J 284 (Madras HC).
34 Sometimes, a condition is the payment of a specified sum to a nominated charity. Such
orders, it may be argued, do involve a punitive element.

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continue with the case despite the parties agreement to compound it,
which was the situation considered in Singapore by Chief Justice Yong in
PP v Norzian bin Bintat.
Once a criminal prosecution has been instituted and the courts have seized
jurisdiction over a matter, the discontinuation of the proceedings by the
prosecutor is not permitted by the courts unless good grounds are advanced
for such a discontinuation. Despite the fact that s.321 seems to give an
absolute discretion to the prosecutor to withdraw from the trial and thereby
discontinue proceedings, the courts have held that consent for such
discontinuation by the trial court is necessary. This view indicates that the
courts have a residual power to oversee the exercise of his discretion by
the prosecutor. But, the courts have been careful in ensuring that a delicate
balance is maintained between the trial judges right to oversee the exercise
of the discretion and the right specifically given to the prosecutor to
discontinue proceedings. These cases give an insight into the attitude of
the Indian courts to the issue of the review of the prosecutorial discretion.35
There is a definite suggestion in them that once the charge has been laid
before the courts, the courts will thereafter oversee any discretion which
the prosecutor exercises over the proceedings.36 Where he seeks to withdraw
the charge against the offender, the courts will ensure that he exercises this
discretion on the basis of adequate grounds and as a free agent. It is
interesting to look at some of the cases in order to understand the nature
of the supervisory powers over prosecutorial discretion which the Indian
courts have claimed. They stand in stark contrast to the positions in England,
Australia and, to a lesser extent, Canada as there is only a token recognition
of the primacy of prosecutorial recognition in these cases. Unlike the
Criminal Procedure Code in Singapore, there are also no clear provisions
which spell out the power of the Attorney-General to enter a nolle prosequi
in the Indian Code. The prosecutorial discretion prior to the bringing of
charges clearly exists but once charges are brought and the jurisdiction of
the courts are engaged as a result, the supervisory jurisdiction of the courts
also come into play and the extent of the prosecutorial discretion is
correspondingly reduced.
The law that is stated in the Indian cases could be summarised as containing
a series of propositions. They have arisen in cases which deal with the
power of the prosecutor to withdraw a charge stated in s.321. This is the
only provision in the Indian Code which deals with the power of the
prosecutor to withdraw charges whereas there are other provisions in the

35 As is usual in India, there is a colossal amount of case law. It would be sufficient to look
at only the more recent decisions of the Indian Supreme Court.
36 See Rajender Kumar Jain v Slate (1980) 3 SCC 435 where the earlier authorities are
discussed. Also see Sheonandan Paswan v State of Bihar (1983) 1 SCC 438; Ravi Raman
Prasad v State of Bihar (1994) 2 SCJ 513.

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Singapore Code which deal with this power in more absolute terms.37 The
first proposition is that the Public Prosecutor has an absolute discretion as
to whether or not to institute proceedings. This proposition is no different
from that accepted in other common law jurisdictions. The second
proposition is that once the prosecution has been instituted, the prosecutor
has a discretion as to whether it should be continued or not. He may
withdraw it at his discretion. The Indian Supreme Court recognises that
this is a purely executive discretion which may be exercised for a variety
of grounds which it has identified. The good reasons for using s.321 are the
lack of evidence to support a conviction or the appearance of fresh evidence
which shows the innocence of the accused. But, it may include such other
factors as the political repercussions of the prosecution which may not be
easy to control. If the prosecution of a religious or other leader for a trivial
offence may lead to widespread riots, then, the withdrawal of the trial may
be an easier way out of the problem for the executive than deal with those
riots. In a volatile country, these factors, the Court has recognised, are for
the executive to assess. It goes beyond the judicial function to consider the
merits of such factors. But, and this is the third proposition, the prosecutor
must do so as an honest prosecutor would without being influenced by
extraneous considerations such as political pressure or favouritism exerted
on behalf of the accused. Where there is evidence to show that the discretion
of the public prosecutor had been influenced by such extraneous
considerations, the courts will interfere and ensure that the prosecution is
not withdrawn and that evidence continues to be presented to the court so
that it may determine the guilt or the innocence of the accused.
None these propositions are of significance to the precise point involved in
PP v Norzian bin Bintat38 which was whether the public prosecutor can
continue to maintain a prosecution even where the offence is compoundable,
parties had agreed to compound it and the court is in agreement with the
parties that the offence should be compounded. If one were to look at the
propositions suggested by the Indian Supreme Court, such a matter would
fall exclusively to the decision of the prosecutor. It would be categorized
as an executive discretion over which the courts should not exercise control.
But, it could equally be credibly argued that once the prosecutor had
invoked the jurisdiction of the courts, the courts have a supervisory
jurisdiction which they could exercise and that they could ensure that
proceedings which may be vexatious in nature are not maintained. There
is an element of abuse of process reasoning involved in such an approach
but the use of the process of the courts is a matter for the courts and it
would be difficult to deny them this supervisory function once their
jurisdiction has been engaged. The Indian decisions indicate little guidance
on the point.

37 Ss. 184 and 193.


38 [1995] 3 SLR 462.

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6. Malaysian Law:
Malaysian law on the point is closer to Singapore law and introduces a
fresh element into the picture which is not found in Indian law. The fresh
element is that the Malaysian Constitution spells out the power which
the Attorney-General has over criminal prosecution. The Singapore
Constitution has the same provision. The Indian Constitution which to a
large extent is the basis for the statement of the office of the AttorneyGeneral in the Constitutions of Malaysia and Singapore does not, however,
contain an express provision relating to the power of the Attorney-General
over criminal prosecutions. Article 145(3) of the Malaysian Constitution
reads:
The Attorney-General shall have power, exercisable at his discretion,
to institute, conduct or discontinue any proceedings for an offence,
other than before a Muslim court or a court-martial
Section 376(i) of the Malaysian Criminal Procedure Code reiterates this
power of the Attorney-General. It provides for the office of the Public
Prosecutor and states that the Attorney-General shall be the Public
Prosecutor. It reads:
The Attorney-General shall be the Public Prosecutor and shall have
the control and direction of all criminal prosecutions and proceedings
under this Code
It must be kept in mind that the office of Public Prosecutor in the various
Commonwealth jurisdictions vary. In India, this office seems to have been
introduced by the Indian Criminal Procedure Code and the Indian office
has no links whatsoever with the Federal Attorney-General or the State
Advocate-General. It is attached to each High Court and the officer is
appointed by the government of the state in consultation with the High
Court. In practice, it is a political office, the Public Prosecutor appointed
by a government resigning when that government goes out of office. The
Indian office seems to have preceded the creation of such offices in other
parts of the Empire.39 In England, the corresponding office is that of the
Director of Public Prosecutions. This office was created by statute in 1879
and he is subject to directions by the Attorney-General. In Malaysia and
Singapore, the Public Prosecutor is the alter ego of the Attorney-General.
In these states the office was created in 1892 and one may conjecture from
the proximity in time that the Public Prosecutor in Singapore and Malaysia
was more approximate to the English Director of Public Prosecutions and
that the office was created merely for organisational purposes. The office
in England, Malaysia and Singapore are not political offices. These
differences make the approximation of Indian law with the law in Malaysia
and Singapore result in inexactitudes in matters involving official functions.
39 An early case in which the nature of the office was considered was Kashinath Dinkar
(1871) 8 BHC (Cr.C.) 126, 153.

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The constitutional provision relating to the power over criminal prosecution


of the Attorney-General has been considered in many cases in Malaysia.
It has been held in Malaysia that Article 145(3) of the Constitution was
declaratory of the existing powers and duties of the Attorney-General in
relation to criminal prosecutions.40
Two views exist on the Attorney-Generals powers in relation to criminal
prosecution in Malaysia. One is that these are absolute and unreviewable
powers which are no different from those exercised by the English AttorneyGeneral. The other is that this view, however correct prior to the courts
jurisdiction being engaged through charges being brought against the
accused, does not hold good after the prosecution has been initiated and
the case is before the court.
The first view has been forcefully stated by a former Attorney-General of
Malaysia, Tan Sri Haji Abdul Kadir bin Yusof in a law journal article.41
After reviewing the history of the office in Malaysia, Tan Sri Kadir
concluded that the office is closely modelled on its English counterpart
and that the discretionary powers vested in the Attorney-General are not
reviewable by the courts. In relation to the position in India, he makes the
following observation:42
Under Clause (3) of Article 145, the Attorney-General is conferred
with complete discretionary power in relation to criminal proceedings.
...However, this discretionary power is not an arbitrary power but a
generally recognised quasi-judicial power. This is the position not
only in our Constitution but under the unwritten constitutional law
in the United Kingdom and in the written constitutions of many of
the Commonwealth countries. The Indian Constitution, however, does
not confer on him any such power.
Tan Sri Kadir reviewed the English authorities supporting the proposition
that the Attorney-General had an unreviewable discretion regarding
prosecutions and then relied on the following passage in the judgment of
Tun Suffian in Long bin Samat v Public Prosecutor to support his view:43
In our view, this clause from the supreme law (Article 145(3)) clearly
gives the Attorney-General very wide discretion over the control and
direction of all criminal prosecutions. Not only may he institute and
conduct any proceedings for an offence, he may also discontinue
criminal proceedings that he has instituted, and the courts cannot
compel him to institute any criminal proceedings which he does not

40 Abdoolcader J in Public Prosecutor v Datuk Harun bin Haji Idris [1976] 2 MLJ 116 at
p 119.
41 Tan Sri Haji Abdul Kadir bin Yusof, The Office of the Attorney-General, Malaysia
[1977] 2 MLJ xvi.
42 Ibid. at p xx.
43 [1974] 2 MLJ 152 at p 158.

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wish to institute or to go on with any criminal proceedings which he


has decided to discontinue.
The other view is to confine the unreviewable, discretionary power possessed
by the Attorney-General to the stage prior to prosecution but not to the
stage after proceedings have been initiated before the courts. Once the
courts have been seized of a matter, according to this view, the courts have
the right to ensure that the discretion of the Attorney-General to interfere
in any way with the proceedings is properly exercised. Whereas the first
view is that the discretionary power continues at all stages as the protection
of the public interest is always the function of the Attorney-General, the
second view is that the courts have a prior right to protect these interests
once the case is before them and that it would be an interference with the
judicial process to regard the situation as otherwise.
This second view finds support in the judgment of Abdoolcader J in Public
Prosecutor v Datuk Harun bin Haji Idris.44 The issue in the case was whether
the Public Prosecutor could transfer cases instituted in the Sessions Court
in the Federal Territory to the High Court. The case was argued for the
accused on the basis that s. 418A of the Malaysian Criminal Procedure
Code which gave the Public Prosecutor the power to do so was inconsistent
with Article 8(1) of the Constitution which provided for equal protection
to all before the law. The Public Prosecutor relied on Article 145(3) of the
Constitution to argue that the discretion of the Attorney-General to transfer
the case was not reviewable. Abdoolcader J thought otherwise and upheld
the arguments of the counsel for the accused.
Having rejected the view that the powers of the Malaysian Attorney-General
could be traced through analogy with those of his English counterpart, the
judge held that the Attorney-General in Malaysia did not, by virtue of
s.145(3), have the license to override the provisions of Article 8(1) of the
Constitution. He also held that the power to conduct criminal prosecutions
given by Article 145(3), did not mean that the Attorney-General could
regulate criminal procedure as this would amount to an intrusion or
incursion into the judicial sphere which is vested in the courts by the
Constitution. It would also mean that the Attorney-General would be
arrogating to himself the legislative power to lay down criminal procedure.
Such extensive powers could not have been contemplated by Article 145(3).
The effect of this reasoning is that while the Attorney-General has a
complete discretion as to the commencement of criminal prosecutions, he
loses this power once proceedings have been instituted.45
44 [1976] 2 MLJ 116.
45 See dicta at p 119 where Abdoolcader J seeks to construe the words institute and
conduct in Article 145(3). The conclusion also follows from the manner in which the
judge distinguished Long bin Samat v Public Prosecutor [1974] 2 MLJ 152 which he
considered to be a case concerning the discretion to institute proceedings and not as a
case which involved the conduct of proceedings which had been instituted. The word
conduct was given a narrow definition as meaning to lead, guide, manage.

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In Public Prosecutor v Datuk Harun bin Haji Idris in which Abdoolcader


J stated the restrictive view of the powers over criminal prosecution, the
counsel for the Public Prosecutor was Tan Sri Salleh Abas, the then
Solicitor-General. As Lord President Salleh Abas, he had occasion to
consider the issue of the Public Prosecutors powers over criminal
proceedings ten years later in Public Prosecutor v Zainuddin,46 a case which
had a greater precedential weight.47 The issue raised in that case was whether
the Magistrate faced with the frequent failure of the prosecution to present
its case, could acquit the accused despite the objection of the Public
Prosecutor. Salleh Abas LP, referring to the powers of the Attorney-General
over criminal prosecutions, said that the court did not have this power. In
the course of so holding, the Lord President made the following observations
about the power of the Attorney-General:
Section 376 of the Criminal Procedure Code empowers the AttorneyGeneral who is also the Public Prosecutor to control and give direction
over and in respect of all criminal prosecutions and proceedings,
whilst Article 145(3) declares that the Attorney-General shall have
power, exercisable at his discretion to institute, conduct or discontinue
any proceedings for an offence... Since the Attorney-General has this
power exercisable at his discretion, it is not for the Court to say when
the prosecution has to close its case or has to come to an end merely
because it is unable to obtain a postponement in order to produce
evidence which will prove the offence against the accused.
In a later passage, the judge said that the Constitution gave the AttorneyGeneral an exclusive power respecting direction and control over criminal
matters and observed that the law gives him a complete trust in the
exercise of this power which is his and his alone and his decision is not
open to any judicial review.48
Since Public Prosecutor v Zainuddin concerned the powers of the AttorneyGeneral after he had instituted proceedings, the distinction between the
absoluteness of his power prior to proceedings in determining whether
such proceedings should be brought and the power being subjected to the
courts control once proceedings have been instituted is no longer
maintainable in Malaysian law. Malaysian law seems to have reverted to
the English view that despite provisions in the Criminal Procedure Code
which may provide for the courts control, they must be read subject to the
constitutional provisions which recognise the powers of the Attorney46 [1986] 2 MLJ 100.
47 Since it is a considered judgment of the Supreme Court consisting of three judges, it has
greater precedential weight than the oral judgment of Abdoolcader J. It also arose from
a question of public interest concerning Article 145(3) referred by special leave of the
Supreme Court. Since Abdoolcader J.s judgment was not directly relevant to the question
at issue, there was no reference made to it.
48 The judgment clearly contemplates an English model for the Malaysian Attorney-General.
It observes that the controls over the Attorney-General. Compare also the later English
case, R v Grafton [1992] LRC (Crim) 126.

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General over criminal prosecutions. It thus achieves what seems to have


been the underlying purpose of the constitutional provision that matters
relating to criminal prosecution fall within the executive function of
government and that the Attorney-General is the executive office entrusted
with that function.
7. Singapore Law:
The law in Singapore should be considered in the light of the
Commonwealth systems described above as it has borrowed features from
all of them. The difficulties in the area as in Malaysia arise because the
English office of Attorney-General has been superimposed on a system of
criminal procedure which was derived from the Indian system and which
recognised the office only after the putting into place a system of criminal
procedure and excluding from that office the common law powers enjoyed
by the Attorney-General over criminal prosecutions. This essential conflict
has not been resolved yet. If the English model prevails, the power of the
Attorney-General over the criminal trial cannot be questioned. There is a
residual right of supervision over these powers on the basis of an undefined
principle of abuse of process but the extent of this right remains a matter
of conjecture. But, if the Indian model is accepted, then the power of the
courts to oversee the administration of justice, particularly after the case
has been brought before the courts seems well established.
In Singapore, as in Malaysia, there is authority for both strands of thought
regarding the Attorney-Generals powers. A former Attorney-General of
Singapore, who traced the origin of the office in Singapore, has pointed
out the resemblance between the powers of the Attorney-General in
England and the Attorney-General in Singapore.49
There is case law which supports this proposition as well. Ponniah v Lim50
provides indirect support. It was a case where an appeal was made against
conviction in a case commenced through a private plaint. The issue was
whether the proper respondent was the complainant or the Public
Prosecutor. Thomson CJ held that it was the Public Prosecutor. The theory
is implicit that the Public Prosecutor represents the public interest in

49 Tan Boon Teik, The Attorney-General [1988] MLJ lvii. The Crown Suits Ordinance,
1876 stated these powers. The main difference, according to Mr. Tan, was that in Singapore,
the Attorney-General is not a political appointee. He pointed out that the similarity
between the offices was affirmed in Khoo Sian Tean v Attorney-General referred to in
Braddel, The Law of the Straits Settlements (Vol. 1, 1931) p 132. Mr. Tan referred to the
exact analogy between the A.-G.s discretion in instituting criminal prosecutions and the
institution of proceedings to enforce public rights. The role of the Attorney-General as
the guardian of the public interest was stressed in the article.
50 [1960] 26 MLJ 152.

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securing a criminal conviction.51 In Hawa bte Haji Mohamed Hussain v


Miranda,52 the respondent had been convicted of causing hurt to the
appellant in a private prosecution. The appellant, not being satisfied with
the sentence, appealed. The Public Prosecutor intervened and wanted to
discontinue the appeal. He relied on s.336(1) of the Criminal Procedure
Code53 and Article 35(8) of the Constitution54 and argued that he had the
power to withdraw the appeal on the basis of those provisions. In upholding
this contention, Lai Kew Chai J said:
In my view, the Public Prosecutor under s.336(1) of the Code has
the control and direction of...proceedings under the Code and since
the appeal before me is a proceeding under the Code, the Public
Prosecutor could properly in his discretion intervene and withdraw
the appeal. His discretion is entrenched in Article 35(8) of the
Constitution. Further, as a matter of principle, it must be recognized,
as it was in Ponniah v Lim, the interests of the state in a criminal
matter which are entrusted to the Public Prosecutor are not always
the same as those of a complainant who may allow his private
passions and prejudices to creep into the conduct of a criminal appeal.
Clearly, there was an acceptance in this dictum that the Public Prosecutor
represented the public interest in criminal proceedings.
It is in this setting that Chief Justice Yong Pung Hows decision in PP v
Norzian bin Bintat55 provides support for the contrary proposition that the
courts have a residual interest in protecting the public interest in the case.
The issue in the case was whether the court could discontinue proceedings
in a prosecution for a compoundable offence when the victim and the
offender agree to compound the offence, despite the wish of the Public
Prosecutor to maintain the proceedings. The Chief Justice decided that the
courts had this power. This view challenges the existing view that the
Attorney-General had sole authority over the conduct of proceedings. In
a sense, it introduces into Singapore a conflict of opinion similar to the one
which exists in Malaysia. The basis of the Chief Justices decision and the
authorities he relied on require closer examination.
There is a heavy reliance on Indian case law in the judgment. The
justification for it is in the fact that s.199 of the Singapore Criminal
Procedure Code takes the idea of compounding of minor offences from

51 The judge placed reliance on dicta in Indian cases which emphasised the role of the
Crown as the guardian of justice and the public interest.
52 [1988] 3 MLJ 397.
53 It reads: The Attorney-General shall be the Public Prosecutor and shall have the control
and direction of criminal prosecutions and proceedings under this Code.
54 Article 35(8) is in the same terms as Article 145(3) of the Malaysian Constitution and
provides that the Attorney-General shall have power, exercisable at his discretion, to
institute, conduct or discontinue any proceedings for any offence.
55 [1995] 3 SLR 462.

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s.320 of the Indian Criminal Procedure Code. The notion of compounding


offences is unknown to other common law systems not based on the Indian
Code. Clearly, both the Indian and the Singapore Codes provide that
compounding is possible only with the consent of the courts. The provision
does recognise that the courts have a competence in permitting the
agreement between the offender and the victim. This competence is based
upon the idea in Indian criminal procedure that once the processes of the
courts have been invoked, the courts have a residual interest in overseeing
how the case is worked out and that they would not thereafter accept the
paramountcy of the prosecutor over such decisions. This is easier to accept
in Indian law as the Public Prosecutor in India is himself an official of the
High Court to which he is appointed. The idea may sit uneasily in a system
where the Public Prosecutor is the Attorney-General whose powers of
criminal prosecution are akin to that of the English Attorney-General. It
is a point that will be explored later, after considering the Indian case law
on the compounding of offences.
The Indian cases largely concern the nature of the function which the
Magistrate performs in giving or withholding consent to the composition
of the offence by the parties. This function has to be performed in the
interests of justice. The compromise between the parties has no effect
unless the consent of the court is given to the compromise. There is much
case law on the circumstances in which such consent should be given or
withheld.
Given the wording of s. 199, it is unexceptional to say, as Chief Justice
Yong did, that the decision whether to allow composition has always
been and still is a judicial decision.56 The language of the section requires
the consent of the court for compounding the case. The Chief Justice then
cited Indian cases and concluded:57
These cases demonstrate the judicial nature of the decision. It would
be strange if the Public Prosecutor can in effect veto the courts
judicial decision. In my view there is no such right on the part of the
Public Prosecutor.
The Indian cases, while helpful, do not provide an exact parallel. The
office of the Attorney-General in India, though created by Constitution,
does not involve power over criminal prosecutions. The Public Prosecutor
in India is an officer of the High Court and it is not inconsistent with
theory that he should accept the view of the court as to what is in the
public interest. In Singapore, the Public Prosecutor is the alter ego of the
Attorney-General in whom the Constitution as well as the Criminal
Procedure Code vests the power over criminal prosecutions. Neither

56 [1995] 3 SLR 462 at p. 472.


57 [1995] 3 SLR 462 at p. 473.

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provision is to be found in the Indian law.58 Though the section on


compounding does require the consent of the court, the acceptable manner
of reconciling the conflict which arises between the constitutional provision
and the section is to hold that the court should withhold consent to the
compounding in situations where the Public Prosecutor wishes to continue
with the prosecution. The power of deciding what is in the public interest
has been vested in the Attorney-General by the Constitution which seeks
to model the office on the English precedent. That being so the court must
regard the decision to prosecute and the decision to maintain prosecutions
as falling within the executive province. The issue does raise a constitutional
point.59
The Chief Justice himself raises a constitutional point as to the extent of
the judicial powers, despite his avowal that no constitutional issues are
involved in the case. It is reminiscent of the issue Abdoolcader J raised in
Public Prosecutor v Datuk Harun bin Haji Idris 6 0 that once the judicial
process is engaged by the Public Prosecutor the courts have a say as to its
termination. A contrary proposition would amount to permitting an
intrusion into the judicial sphere by the Public Prosecutor. This is a point
that requires consideration and decision. In England, the simple answer
would be that the common law provided for the entry of a nolle prosequi
to terminate proceedings. This amounted to a prerogative power exercised
by the English Attorney-General. There is no corresponding provision in
the Criminal Procedure Code which adds some credibility to the point
made by Abdoolcader J. This is an issue on which an authoritative
pronouncement is needed.
Much of the problem arises because of the fact that, both in Singapore and
in Malaysia, there is a superimposition of the office of the Attorney-General
modelled on the English office on a system of criminal procedure which is
essentially Indian and did not recognise an Attorney-General with
prerogative powers over criminal prosecution. The Indian office of Public
Prosecutor was quite different from that created in Singapore and Malaysia.
Much of the difficulty has resulted from the effort to marry these two
inconsistent ideas.
Indian law recognised the notion of composition of offences. English law
did not. It dealt with the situation by allowing the Attorney-General a
discretion so that trivial cases were not prosecuted. In English law, the
Attorney-General had the discretion to enter a nolle prosequi and terminate

58 The point, it is submitted with respect, is missed in the judgment which contains the
statement: No doubt, the Indian Criminal Procedure Code did not appear to have a
provision similar to our s.336, but this did not matter, for it was never controversial that
the Attorney-General had supervision over all prosecutions.
59 But, the Chief Justice said that the appeal does not in fact raise a constitutional point.
PP v Norzian bin Bintat [1995] 3 SLR 462 at p. 468.
60 [1976] 2 MLJ 116.

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proceedings without any result. Such termination did not mean that the
accused could not be prosecuted again. In Indian and Singapore law, the
prosecutor could terminate proceedings but the order that the court makes
could be an acquittal or a discharge, the former being capable of supporting
a plea of autrefois acquit in the event of a future charge. In all these
instances, it is clear that the court has a control over the proceedings. In
England, this was not so. Except through the amorphous notion of abuse
of process which is of recent origin and of uncertain scope, the English
courts have not sought to claim the power to override the discretion of the
Attorney-General.
What has happened in Singapore and Malaysia is that the office of the
Attorney-General with powers analogous to the English office has been
created by the Constitution. It has been superimposed on a system of
criminal procedure based on the Indian system which, in turn, was created
without having an Attorney-General with plenary powers of overseeing
criminal prosecutions. The conflict is inevitable in this setting and PP v
Norzian bin Bintat61 is but a manifestation of that conflict. The outcome to
the conflict depends on which aspect a court chooses to emphasize: the law
based on the introduction of the office of the Attorney-General or the law
based on the Indian Criminal Procedure Code. This is an unsatisfactory
situation which should be resolved.
8. Conclusion
The problem is to resolve the conflict stated in the last paragraph. The
office of the Attorney-General has been introduced by the Constitution.
The intention was to introduce an office which was in all ways similar to
that which exists in England. If this be so, then the law which is inconsistent
with the constitutional provision must be interpreted in a manner which is
consistent with that constitutional provision. Article 162 of the Singapore
Constitution itself requires such a course. This seems to be the way in
which the Malaysian courts have reconciled the conflicts which arise between
the constitutional provision concerning the Attorney-General and the
provisions in the Criminal Procedure Code. Such conflicts are bound to
arise simply because the office of the Attorney-General modelled on the
English office with plenary powers over criminal prosecution has been
superimposed on a system of criminal procedure based on the Indian system
which did not recognise an office with such extensive powers over criminal
prosecution. The Criminal Procedure Code requires revision in the light of
this constitutional provision. In the absence of such revision, the courts
should adopt an interpretation which gives primacy to the Constitution,
which represents the highest law of the land.

61 [1995] 3 SLR 462.

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Such a conflict arises also in the situation in PP v Norzian bin Bintat where
the Public Prosecutor wishes to continue prosecution but the Criminal
Procedure Code permits the composition of the case with the consent of
the court. The proper course to adopt in a case where the parties agree to
compound but the Public Prosecutor is unwilling to do so is for the court
to withhold consent to the composition on the ground that the material
and deciding factor is the unwillingness of the Public Prosecutor to agree
to the composition. The Attorney-General as representing the executive is
entrusted with the function of deciding on such matters by the Constitution
and courts must interpret their powers regarding the compounding of
offences as consistent with such powers by agreeing with the views he
states in court on whether or not to permit composition.
M SORNARAJAH*

*LL.M. (Yale), Ph.D, LL.D. (London). Faculty of Law, National University of Singapore.