Mercy & Mitigation

Introduction  

Judicial mercy allows the court to depart from sentencing norms. When the court is moved by humanitarian impulses due to the accused’s exceptional circumstances, it may order the minimum imprisonment term or a non-custodial sentence.[1] However, these circumstances from which humanitarian considerations arise must be exceptional to the extent that public interests in having the offender punished is outweighed.^[2] Examples of exceptional circumstances include terminal illness, conditions that will lead to endangerment of life by imprisonment, or deprivation of necessities the offender requires to improve his chances of recovery.^[3]

While the circumstances in which judicial mercy may be extended are not closed, judicial mercy remains an exceptional power that the courts will exercise only sparingly.[4] Where appropriate, judges are empowered to order the minimum imprisonment term, a nominal imprisonment term, or a non-custodial sentence.^[5] Judicial mercy thus allows judges to avoid a sentencing outcome that, while lawful, causes an offender disproportionate impact.

The test of exceptionality

To justify the exercise of judicial mercy due to an offender’s ill health, the offender must satisfy a high threshold of exceptionality.^[6] Under this test, the courts undertake an inquiry into whether the conditions are so serious such as the offender not having long to live, or his life will be endangered, and whether there is an absence of overwhelming, countervailing public interest considerations which favour punishment.^[7]

As such, for a plea of judicial mercy due to ill health to succeed, a medical opinion identifying and explaining the disproportionate impact is required. A mere medical report stating the diagnosis of the pleaded condition is insufficient.^[8] Second, while the courts must accord due consideration to medical opinions,^[9] medical opinions stating that incarceration may adversely exacerbate conditions may be disregarded, if prison authorities can coordinate with healthcare providers to care for the offenders. Without such clarification by prison authorities on the ultimate effect of imprisonment, judges may take the medical conditions as mitigating.^[10] The court in Public Prosecutor v Lim Oon Kuin^[11] further refined the threshold of exceptionality in its judgment, stating that when an offender’s health would deteriorate regardless of imprisonment, and the prison could cater to his medical conditions, there are no grounds for judicial mercy to be exercised.^[12]

While the exercise of judicial mercy is not confined to health-related reasons,[13] its successful invocation in Singapore has thus far been limited to cases involving exceptional medical conditions. In view of the wide and varied nature of human conditions that may qualify as exceptional,[14] the courts have expressly left open the possibility that future cases may warrant the exercise of judicial mercy on other grounds.[15] For instance, in M Raveendran v Public Prosecutor,[16]the court acknowledged that health-related reasons may not be the only grounds to exercise judicial mercy, but declined to exercise it on the grounds of financial consequences of imprisonment.[17] Such financial consequences of imprisonment included the offender’s possible loss of remuneration and entitlement to retirement benefits.[18] That said, the court nonetheless left open other situations arising in the future which call for judicial mercy. Ultimately, whether judicial mercy should be exercised must be guided by its underlying conceptual base of humanity.[19]

Landmark cases where judicial mercy was exercised

In the case of Public Prosecutor v Tang Wee Sung,^[20]Tang pleaded guilty to the two charges of entering into an agreement to buy a kidney, and making a false declaration to the Commissioner for Oaths that no financial gain will be paid.[21] The third charge of lying to a transplant ethics committee that he was a distant relative of the donor and did not pay for the kidney, was taken into consideration for the purposes of sentencing.[22] Ultimately, Tang’s sentence for the offences was reduced to a nominal incarceration of one day and a fine of $17,000 in an exercise of judicial mercy on account of his extremely ill health.[23] Among other conditions, Tang suffered from end-stage renal failure and required careful monitoring by medical staff during administration of life sustaining dialysis, which took place 6 days a week.^[24] In view of these exceptional circumstances, the court held that incarceration would have much harsher consequences for him than what is intended for the ordinary offender.^[25]

In another widely discussed case of Public Prosecutor v Ong Beng Seng,^[26]the accused, Ong, pleaded guilty to one charge of abetting the obstruction of justice.^[27] While the Prosecution submitted that eight weeks’ imprisonment “would ordinarily be warranted”,^[28] they accepted that “imprisonment would pose an increased risk of endangering [Ong’s] life”.^[29] Ong suffers from an incurable and “one of the most complex and high-risk cases” of cancer, multiple myeloma.^[30] He is thus highly vulnerable to falls or injury that could result in catastrophic consequences such as paralysis and permanent disability.^[31] In all, the court found that imprisonment would significantly endanger his life.^[32] In view of such exceptional circumstances, judicial mercy was exercised and the maximum fine of $30,000 was imposed in lieu of a custodial sentence.^[33]

The court also clarified the misguided view that an offender who can afford better healthcare is better positioned to avoid imprisonment than a less privileged offender, stating that the critical question is whether imprisonment would create heightened risks to the offender’s life.^[34] Where evidence clearly establishes that imprisonment would pose a significant increase in risk to the offender’s life, the exercise of judicial mercy would be warranted.^[35]

Cases where judicial mercy was not exercised

More often than not, judicial mercy is not exercised due to its high threshold, as discussed in the cases below.

In the case of Chew Soo Chun v Public Prosecutor,^[36]the court held that the offender’s multiple illnesses, in this case including depression and cancer, were not sufficient to render circumstances “exceptional”. The court reiterated that the test of exceptionality is not concerned with the total effect of medical conditions, but if the conditions are so serious that a disproportionate effect will be suffered, such as a shortened or endangered life.^[37]

In Public Prosecutor v BMF,^[38] public interests outweighed an exercise of judicial mercy. The offender committed multiple sexual offences over the course of one and a half years against his stepdaughter who was between 8 and 9 years old.^[39] In an attempt to plead judicial mercy, the accused produced a medical report stating a diagnosis of glaucoma. The judge held that not only was a mere medical report insufficient — public interests, namely retributive justice, deterrence, and protection of society, were highly relevant. Therefore, in cases of such “grave and heinous” nature, public interest militates against any exercise of judicial mercy.^[40]

Mitigation

Certain facts such as ill health can lead to an exercise of judicial mercy as discussed above, or act as a mitigating factor. To determine which, the court looks at evidence of the offender’s ill health and the ability of the prison to address his health needs.[41] A mitigating factor reduces the severity or length of a sentence, while keeping in view the principle of proportionality (the correlation between the imposed sentence and offence severity), which judicial mercy is not concerned with.^[42] A sentence can be mitigated to recognise decreased culpability, to encourage salutary effects, or to equalise impacts of sentences.^[43]

For instance, in the case of Leck Kim Koon v Public Prosecutor,[44] ill health was insufficient grounds for judicial mercy but acted as a mitigating factor.[45] The accused was convicted on six charges of cheating under s 420 of the Penal Code (Cap 224, 2008 Rev Ed). He was also suffering from chronic myelomonocytic leukaemia, a terminal illness.[46]

The extent of the accused’s cheating and the sums involved led to significant countervailing public interest considerations which militate against the exercise of judicial mercy.[47] Nonetheless, though judicial mercy was not exercised, the courts recognised his terminal illness as a mitigating factor. Given that imprisonment would have a disproportionate impact on the accused, and prison authorities declined to comment on whether imprisonment would cause disproportionate suffering, his sentence was reduced from 42 to 36 months.[48]

Mercy vs mitigation — Where lies the difference?

While there exists an overlap between the test for invoking circumstances as a mitigating factor and for the exercise of judicial mercy, there are two key differences: one of degree, and one of their distinct conceptual bases. For instance, in considering ill health, it would take a greater extent of deterioration, to the point of life endangerment, to warrant an exercise of mercy – as opposed to it being regarded as a point in mitigation.

More significantly, mercy and mitigation are founded on distinct conceptual bases. As judicial mercy is exercised on the grounds of humanitarian compassion, the court is not concerned with the principle of proportionality, which involves reconciling the severity of the offence with the offender’s sentence. Mitigation, on the other hand, is stillfundamentally concerned with proportionality, where the link between culpability and punishment is preserved.^[49]

Conclusion

Invoked carefully and only sparingly,^[50] judicial mercy remains a narrow and carefully guarded doctrine. Singapore’s continued exercise of judicial mercy shows how even in the face of wrongdoing, the justice system’s compassion is not foregone. At the same time, the delineation between mercy and mitigation ensures that the balance between justice and empathy is preserved.

Written by: Shervonn Tan Le Xuan
Year 3 LL.B. Student
Singapore Management University, Yong Pung How School of Law
Edited by: Raeann Lee
Year 4 LL.B. Student
Singapore Management University, Yong Pung How School of Law

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Citations List

[1] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [34].

^[2] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [23].

^[3] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [23].

[4] M Raveendran v Public Prosecutor [2022] 3 SLR 1183 at [62].

^[5] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [23].

^[6] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [28].

^[7] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [27].

^[8] Public Prosecutor v BMF [2019] SGHC 227 at [75].

^[9] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [50].

^[10] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [50].

^[11] Public Prosecutor v Lim Oon Kuin [2025] SGDC 36.

^[12] Public Prosecutor v Lim Oon Kuin [2025] SGDC 36 at [1086].

[13] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [22].

[14] M Raveendran v Public Prosecutor [2022] 3 SLR 1183 at [62].

[15] M Raveendran v Public Prosecutor [2022] 3 SLR 1183 at [62].

[16] M Raveendran v Public Prosecutor [2022] 3 SLR 1183.

[17] M Raveendran v Public Prosecutor [2022] 3 SLR 1183 at [62].

[18] M Raveendran v Public Prosecutor [2022] 3 SLR 1183 at [59] and [69].

[19] Chew Soo Chun v Public Prosecutor and anotherappeal[2016] 2 SLR 78at [22].

^[20] Public Prosecutor v Tang Wee Sung [2008] SGDC 262.

[21] Public Prosecutor v Tang Wee Sung [2008] SGDC 262 at [3].

[22] Public Prosecutor v Tang Wee Sung [2008] SGDC 262 at [3].

[23] Public Prosecutor v Tang Wee Sung [2008] SGDC 262 at [56]..

^[24] Public Prosecutor v Tang Wee Sung [2008] SGDC 262 at [51].

^[25] Public Prosecutor v Tang Wee Sung [2008] SGDC 262 at [51].

^[26] Public Prosecutor v Ong Beng Seng [2025] SGDC 211.

^[27] Public Prosecutor v Ong Beng Seng [2025] SGDC 211 at [7] and [31].

^[28] Public Prosecutor v Ong Beng Seng [2025] SGDC 211 at [20].

^[29] Public Prosecutor v Ong Beng Seng [2025] SGDC 211 at [21].

^[30] Public Prosecutor v Ong Beng Seng [2025] SGDC 211 at [24], [27], and [50].

^[31] Public Prosecutor v Ong Beng Seng [2025] SGDC 211 at [57].

^[32] Public Prosecutor v Ong Beng Seng [2025] SGDC 211 at [28].

^[33] Public Prosecutor v Ong Beng Seng [2025] SGDC 211 at [71].

^[34] Public Prosecutor v Ong Beng Seng [2025] SGDC 211 at [65].

^[35] Public Prosecutor v Ong Beng Seng [2025] SGDC 211 at [65].

^[36] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78.

^[37] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [54].

^[38] Public Prosecutor v BMF [2019] SGHC 227.

^[39] Public Prosecutor v BMF [2019] SGHC 227 at [5].

^[40] Public Prosecutor v BMF [2019] SGHC 227 at [73].

[41] Leck Kim Koon v Public Prosecutor [2022] 3 SLR 1050 at [46].

^[42] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [29].

^[43] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [32].

[44] Leck Kim Koon v Public Prosecutor [2022] 3 SLR 1050.

[45] Leck Kim Koon v Public Prosecutor [2022] 3 SLR 1050 at [49] and [50].

[46] Leck Kim Koon v Public Prosecutor [2022] 3 SLR 1050 at [11].

[47] Leck Kim Koon v Public Prosecutor [2022] 3 SLR 1050 at [49].

[48] Leck Kim Koon v Public Prosecutor [2022] 3 SLR 1050 at [50].

^[49]  R v Smith (1987) 44 SASR 587 at [589].

^[50] Chew Soo Chun v Public Prosecutor and another appeal [2016] 2 SLR 78 at [26].