One of the most important things that a Defending Officer (DO) has to do is writing a Plea of Mitigation, or a Mitigation Plea, for the accused serviceman whom he represents. A Mitigation Plea is a written document which aims to persuade the court to exercise lenient sentencing, and is submitted after the accused serviceman has pleaded guilty. The Mitigation Plea can make a significant difference in the severity of the punishment meted out to the accused. A poorly crafted plea can even backfire and do the accused more harm than good. Thus, ensuring that the plea is well thought out and defensible in court is really important!
When is a Mitigation Plea required?
Remember that a Mitigation Plea is only required when the accused serviceman has decided to plead guilty. If the accused seeks to contest the charges filed against him, a full defence will have to be conducted, rather than merely mitigation. A Mitigation Plea cannot be used to qualify a guilty plea made by the accused; in other words, it cannot be used to claim (or imply) that the accused is actually not entirely guilty of the offence(s) that he has been charged with. When the accused pleads guilty, it signifies a complete admission to the charge(s), without reservations. A Mitigation Plea is then (and only then) used to persuade the court to issue a lighter sentence.
What does a Defending Officer have to do?
In a General Court Martial, DOs are usually required to submit a written mitigation plea (preferably typed), addressed to the President and Members of the Court. The DO will also usually have to read it aloud in Court. A sense of initiative and responsibility is important, as the onus is on the DO to submit the Mitigation Plea; the Court will not invite or remind DOs to do so. In a Summary Trial, however, mitigating factors may be submitted orally by the accused himself.
How should a Mitigation Plea be written?
The language used in a Mitigation Plea should be concise and impactful. Focus should be placed on significant and appropriate mitigating factors, rather than presenting a long laundry list of poorly-applied arguments, especially those of little relevance.
There are many mitigating factors that a DO can include in a Mitigation Plea, and their respective levels of persuasion would naturally depend on the particular circumstances of the case. However, certain factors, such as age, are more pertinent and significant than others.
If the accused is under 21 years of age, the DO should strive to convince the Court that the accused is still in his formative years, and that it is still possible to reform him. The law does not simply seek to punish, but rather to also reform and rehabilitate. If the Court is convinced that a young offender has committed the offence merely in a moment of folly (due to a lack of maturity or experience to fully appreciate the consequences of his actions), and more importantly, that he can be reformed into a law-abiding citizen, it may opt to mete out alternative sentences which are more rehabilitative in nature, such as counselling, instead of harsher ones like detention. Take note, however, that such factors should only be used where appropriate; for example, if the accused had demonstrated malicious, calculated, and premeditated intent (or exceptional maturity) when committing the offence, this argument might backfire instead.
Acts of gallantry or distinguished conduct, among other valuable contributions to the SAF during the accused’s term of service, are usually taken into consideration. Accolades and achievements such as outstanding soldier awards and other good performance awards (such as for overseas training exercises, National Day Parades, etc.) should be brought to the attention of the Court. General good conduct can also be a helpful mitigating factor. In particular, if the accused’s superior (e.g. his PC, OC or CO) is willing to appear personally in court, or at least provide a certified written reference to testify to the accused’s good character and/or performance while in service, it might go some way in convincing the Court to exercise more lenient sentencing.
The accused’s behaviour can also be a useful mitigating factor. For example, a sincere demonstration of remorse through behaviour such as an immediate and uncontested plea of guilt, full cooperation with the authorities in investigations, or the performance of prompt and voluntary restitution to the victim (such as in cases of theft or damaged items) are factors that should be included in the Mitigation Plea if appropriate. Remember, however, that certain mitigating factors tend to be less convincing to the Court. Factors such as financial hardship and academic or family background usually do not carry much weight, unless there are exceptional circumstances. The DO can also request for a backdating of the custodial sentence to the time when the serviceman was first arrested, or for the concurrent running of sentences (if applicable). However, whether this request is granted is ultimately at the discretion of the Court.
Is help available?
If you are new to the task and require assistance with writing a good Mitigation Plea, you should not hesitate to seek help, as what you do has a direct and significant impact on the accused serviceman whom you represent. Your Unit S1 may be able to point you to some useful resources, or provide some useful advice. You can also speak to other DOs who have more experience in writing Mitigation Pleas. The Singapore Law Gazette also has a comprehensive article on writing a good Mitigation Plea, available at http://www.lawgazette.com.sg/2006-1/Jan06-feature2.htm Although the article is written mainly for lawyers representing clients in a civilian court, it may still be useful in a military context, since many of the skills required are similar.
Writing a good Mitigation Plea is no mean feat, but doing it well can assure and inspire the Court of your ability and reliability as a responsible Defending Officer. That can go a long way in safeguarding the interests of the accused serviceman whom you represent, and perhaps even help him to secure a lighter sentence within the fair limits of justice.
Military training – which may involve using live rounds, traversing the harsh closed jungle terrain, and driving large military vehicles – has its inherent risks. Yet, even with these risks, the death of a national serviceman cannot and must not be seen as an inevitable part of our peacetime training.
PTE Dominique Sarron Lee passed away tragically in 2012, in an incident during a military training exercise not unlike exercises many Singaporean sons have experienced. The death of a national serviceman is a tragedy; public grief is only matched by public outcry. It is important that the serviceman’s family, and Singaporean society at large, are informed of the necessary facts. At the same time, the loved ones and dependents of the serviceman should receive compensation for their loss, even if is only financial. Unfortunately, the law in the area of criminal liability for negligently causing death, and of civil (tortious) liability for the same, are not common knowledge. This understandably causes confusion and frustration among many of those aggrieved by the tragedy.
This article aims to briefly explain the law in these two areas, and the law’s applicability to the facts of PTE Lee’s death. In particular, this article will explain that (1) the Government of Singapore is legally obliged to financially compensate the family of a serviceman who passes away during training, (2) the SAF has a legal duty to ensure that any offence committed by a serviceman is punished.
The incident that took PTE Lee's life involved the use of smoke grenades during training, in amounts that contravened training regulations. PTE Lee “died from acute allergic reaction to zinc chloride due to inhalation of zinc chloride fumes,” a substance emitted by the smoke grenades . PTE Lee’s commanders have been found negligent by military court, insofar as they did not comply with those regulations . However, the coroner “could not ascertain whether the acute allergic reaction was due to concentration and/or the mere exposure of zinc chloride fumes” . The Coroner’s Inquiry stated that the acute allergic reaction was “unlikely to have been predicted”. Thus, it is unclear whether the commanders’ negligence of the use of additional smoke grenades caused the death of PTE Lee .
Financial Compensation for the Death of a Serviceman
Generally, the act of negligently causing the death of another gives the deceased’s personal representative (“the claimant”) a civil claim in the tort of negligence, against the negligent party. The aim of such a claim is to place the claimant in such a position as he would have been if the wrong had not been committed, through an award of monetary damages. The claimant can only be awarded damages for a loss that he can prove he has suffered. In the context of the tort of negligence, this requires the claimant to prove, among other things, that he would not have suffered the loss “but for” the negligent act  – in other words, that the deceased would not have died if there had been no negligence.
Government Proceedings Acts 14(1)  exempts the Government and SAF personnel from being sued for civil (tortious) liability. This means that a claimant will not have the opportunity to prove in court that the SAF personnel acted negligently in causing him loss. Government Proceedings Act s 14(1) can only operate when two conditions are met – namely: (i) the loss suffered by, or the death of, the serviceman occurred while he was on duty, and (ii) the loss or death entitles the serviceman or his personal representative respectively to monetary compensation under Singapore Armed Forces (Pensions) Regulations . If either of these conditions are not met, the Government or the personnel may be sued under the tort of negligence .
There are two differences between the compensation awarded under the Government Proceedings Act and the Singapore Armed Forces (Pensions) Regulations, and damages under the tort of negligence. The first is of primary importance: compensation is awarded even if the would-be claimant cannot prove that his loss was caused by negligence. The second relates to the amount the claimant will receive .
As explained above, the purpose of the existence of a claim in civil negligence is to protect a claimant’s rights, and to compensate him for his losses . Hence, its purpose is not to punish, or to pass moral judgment, on the negligent party. This is to be dealt with by the criminal law , which we look at next.
Punishment of SAF Personnel who commit offences
The same act of negligently causing the death of another may make the negligent party criminally liable for the offence of causing death by negligent act under Penal Code's 304A . In this context, a prosecutor must, in order to secure a verdict of guilty, show that the negligence contributed “substantially, and not merely peripherally” to the death .
The only person who may authorize a prosecution is the Public Prosecutor – the Attorney-General. The Public Prosecutor alone has the discretion to choose whether or not he wishes to prosecute any person , and if he chooses not to, he is not obliged to explain why . The Public Prosecutor may validly refrain from prosecuting someone even if he is certain that person has committed a criminal offence, if he feels that refraining would be just in the circumstances . It is worth noting that the Public Prosecutor has not hesitated to prosecute SAF personnel under Penal Code s 304A in recent years .
Where the negligent party is SAF personnel, he is also subject to military law . Here, the party who has the responsibility of prosecuting is the Chief Military Prosecutor – the Director of MINDEF Legal Services . Even where the Public Prosecutor chooses not to prosecute the negligent SAF personnel, the latter may still be charged under Penal Code s 304A, or under any other relevant military offence , by a Military Prosecutor. While there are, to the best of our knowledge, no local judgments on this, the plain wording of the relevant statute states that when a military policeman forwards his investigations on the SAF personnel to the Chief Military Prosecutor, the latter must charge the serviceman in question if he believes that the investigation found sufficient evidence that the serviceman has committed an offence . This charge may be dealt with informally at a summary trial or more formally at a court martial . However, only lesser offences may be dealt with at a summary trial . If the negligent party is charged by a Military Prosecutor under Penal Code s 304A, he must be dealt with at a court martial .
Based on the law and practice, it may thus be safely said that, in cases involving the death of a serviceman during military training, the serviceman’s family will be given financial compensation. In addition, the person or persons responsible for his death will be prosecuted either in the High Court or the SAF Court Martial.
We should not conclude that monetary compensation, or even a criminal conviction, will alleviate the grief of the loved ones of a deceased serviceman. Unfortunately, the law cannot provide recourse further than that, for an incident that already took place. The best solution, therefore, is to ensure that such incidents never take place again.
Only speculations may be made concerning the circumstances PTE Lee's commanders and instructors faced that day. It may have been that some of them felt compelled to carry out orders which they knew were contrary to training regulations. In 2014, it was held in the case of PP v Tan Cavin that no serviceman is legally obliged to carry out his superior’s orders if they are illegal . The Military Justice Project hopes that this judgement will provide commanders and instructors guidance in training activities, in circumstances where risk might be better managed.
As death cannot and should not be accepted as inevitable, preventing the loss of life is an important obligation that the SAF must take on. Many systemic improvements in the SAF have taken place over the past few years. To develop a better support system for its soldiers, SAF should continue to strive to improve its safety structures, training procedures, development of commanders and soldiers’ legal awareness. Singaporeans must, too, rally around the improvements that the SAF makes to empower its servicemen. Only then can we – MJP, SAF and Singaporean society at large – confidently say that we are defending those who defend us.
 MINDEF, Ministerial Statement on National Service Training Deaths (14 Nov 2012), online: <http://www.mindef.gov.sg/imindef/press_room/official_releases/ps/2012/14nov12_ps2.html#.VtuZXTaO7BI>
MINDEF, Key Findings from the Death of PTE Dominique Sarron Lee (7 Mar 2016), online: <https://www.facebook.com/notes/the-singapore-army/key-findings-from-the-death-of-pte-dominique-sarron-lee/10153904465541063>
 Livingstone v Rawyards Coal Co (1880) 5 App Cas 25 (UKHL) at 39
 Chartered Electronics Industries Pte Ltd v Comtech IT Pte Ltd  SGCA 43 at 
 Sunny Metal & Engineering v Ng Khim Meng Eric  SGCA 36 at 
 (Cap 121, 1985 Rev Ed).
 (Cap 295, Reg 9, 2001 Rev Ed).
 Government Proceedings Act s 5
 The combined effect of Singapore Armed Forces (Pensions) Regulations reg 39(1), reg 39(2) and reg 37(1)(b) grants the claimant 12 months’ worth of the salary awarded to his rank if he were a regular serviceman, and a lump sum under the Third Schedule of the Work Injury Compensation Act (Cap 354, 2009 Rev Ed), with the possibility of an additional sum which may be given at the discretion of the government, if the death of the serviceman occurred during training. Here, no loss need be proven. In the tort of negligence, the claimant will be entitled to $15,000 as damages for bereavement, by virtue of Civil Law Act s 21(4); any further damages will only be awarded if the claimant can prove loss – which in this case would be the amount that the claimant can prove the deceased would have earned in his current/future job per month, multiplied by the number of months the claimant can prove the deceased would be able to work for; Chang Ah Lek v Lim Ah Koon  SGCA 61
 Ashley v Chief Constable of Sussex Police  1 AC 962 at .
 Ibid at .
 (Cap 224, 2008 Rev Ed)
 Ng Keng Yong v Public Prosecutor  SGHC 171 at 
 Constitution of the Republic of Singapore (1999 Rev Ed) art 35(8).
 Ramalingam Ravinthran v AG  SGCA 2 at .
 Ibid at .
 See Ng Keng Yong v Public Prosecutor  SGHC 171 and S Balakrishnan v Public Prosecutor  SGHC 146 for examples
Every man has a right to be heard and a right to a fair hearing when being charged in court. However, the rights that the Accused holds differs from court to court. The Military Court in Singapore also endows the alleged servicemen with certain rights, allowing trials to be heard in the fairest manner possible.
There are two different ways a serviceman can be tried:
(1) A trial before the serviceman’s unit (Summary Trial) or, for a more serious offence;
(2) A trial before the General Court Martial.
This article will address the rights of a serviceman when he is tried before the ST.
Right to understand the Charges against him
Every accused serviceman is given the right to hear the charges brought against him. He must understand the charge against him before he can exercise his right to be heard and to provide a defense. If he is unable to understand the charges against him, he has the right to clarify and to have the allegations explained to him, via an interpreter if necessary. The charge sheet must contain the details of the offence such as the date, time, place the offence was committed, against whom the offence was committed and how the offence was committed.
Right to accept or contest the charge(s)
A serviceman also has a right to accept or contest the charges against him. If he accepts the charges, he will be convicted and punished.
However, if he wishes to contest the charges against him, the serviceman has the right to bring in his own witnesses to support why he declines the charges. He can also explain why he is innocent, either orally or in writing. If the Disciplinary Officer brings in witnesses, the serviceman also has the right to challenge the evidence given by the witnesses. After each witness has given his evidence, the serviceman can question the witnesses and challenge the evidence.
Rights to raise mitigating factors
A serviceman can present mitigating factors in his favor. These factors can include his previous good conduct or even the fact that he co-operated during investigations and did not dispute the charges.
Right to be informed of aggravating factors
Aggravating factors refer to factors that warrant a higher punishment as compared to the punishment that would normally be meted out for that particular offence. For example, if the serviceman has previously been charged for theft and commits a theft again, his previous conviction is an aggravating factor.
The serviceman has the right to be informed of aggravating factors considered in his sentencing. This provides the servicemen with a chance to challenge the aggravating factors put forth and possibly reduce his sentence if the Disciplinary Officer accepts his arguments.
Rights pertaining to punishment the Disciplinary Officer imposes
There are two types of punishment that a Disciplinary Officer can impose: a minor or a major punishment. Major punishments include detention, fine, reduction in rank or reprimand. Minor punishments include restriction of privilege, stoppage of leave or extra guard duties.
If a serviceman feels that he will have a fairer trial before the General Court martial (GCM), he could choose to be tries in a GCM. However, a serviceman should also be mindful of the fact that the GCM has the power to award heavier sentences than a Disciplinary Officer.
Right to seek Redress
If the serviceman is unhappy with his conviction, he may write to the Armed Forces Council (AFC) and ask for a review of his case. In the letter there should be a brief account of why he feels he has been tried unfairly.
Legal services will then review the record of proceedings of the ST and will then advise the AFC on the appropriate step to take. The AFC can reject or substitute any conviction or punishment previously passed.
Mention National Service (NS) in Singapore, and the typical reaction is one of ambivalence or cynicism. Even though over time some people have begun to recognise a need for it, NS still evokes mixed sentiments among the general population. This cynicism has somewhat spilled over into the Military Justice System. It is the aim of every justice system to ensure that everyone views it as a fair and just system that treats accused persons fairly in accordance with established legal principles. Any justice system requires a balance of power and respect, too much of either, you find that you are either a hated dictator or a toothless tiger. It is thus unfortunate that all too often, the general impression of it has been marred by people’s own unrelated experiences in NS, experiences which they mistakenly ascribe to the Military Justice System or most tragically, their own poor experience with the Military Justice System itself.
Often, when I tell others about the Military Justice Project, a common reaction is to ask in good humour, “is there justice in the military?”. The problem is a classic one—an imbalance of information between the various stakeholders: commanders and servicemen. This imbalance of information may result in a serviceman feeling that he has been either let down by the law or wronged by his commander, when in fact the law was applied correctly, but in an opaque process that remained unexplained. Even in the odd case where it is applied wrongly, the system provides options to redress this but servicemen often remain needlessly ignorant to them. It is this failure to communicate, to know your legal rights as a military serviceman, that is the cause of this cynicism towards the military justice system. As much as communication is a issue with regards to legal rights, misunderstandings may also arise due to the unique features of the Military Justice System that differ from those of the “civilian” courts. Outlined below are various explanations regarding the uniqueness of the Military Justice System.
I. An Emphasis on Discipline
NS resentment aside, the SAF is a military force and as such, requires a certain level of discipline, backed up by a system of legal repercussions for any wrongdoing.
“After the organization of troops, military discipline is the first matter that presents itself. It is the soul of armies. If it is not established with wisdom and maintained with unshakeable resolution you will have no soldiers. Regiments and armies will only be contemptible, armed mobs, more dangerous to their own country than to the enemy” - Maurice de Saxe: Mes Reveries, 1732
When we talk about military law, it often denotes the laws governing conflicts and the use of force by armed forces. We will instead focus on laws governing the servicemen within the SAF, which are mainly contained in the SAF Act. The SAF’s Military Justice System is unique as it forms a separate legal system of its own, has its own courts, and laws that apply exclusively to military servicemen. However in certain circumstances, the Attorney-General’s Chambers along with MINDEF Legal Services (the prosecuting arm for military offences) may decide to have a military offence tried under civil law as seen in S Balakrishnan v Public Prosecutor (known to the public as the “Commando Dunking Case”) and Ng Keng Yong v Public Prosecutor (the “RSS Courageous Collision Case”). Reasons for this mainly centre around the great public interest regarding these cases. This is of course not to say that our military courts operate in some shadowy world beyond our knowledge; the military courts are open courts and in fact the Military Court of Appeal conducts hearings in the Supreme Court which anyone can attend. But for the most part, military cases are directed towards the administration of discipline and the public interest is not aroused in most cases.
This is an important point most people overlook when we discuss the Military Courts, because unlike the normal “civilian” courts, military courts have different priorities in dispensing justice. When an Accused person is convicted by the State Courts, they are focused on his identity as an independent member of society, his rehabilitation into society beyond his sentencing is sometimes not the focus of the Court. However in a Military Court, though the primary aim is to ensure discipline within the ranks, the Accused serviceman must be dealt with in accordance with external considerations such as his role within his unit and the value inherent in that. A serviceman convicted and incarcerated will still have to return to service once he has served his sentence, if not as a NSF then as a NSman. It is not just a simple matter of locking him up and throwing away the key. Indeed in the military justice system, every convicted soldier is a yellow green ribbon project!
II. Military Personnel as Panel Judges
In military trials, know as General Court Martials, there are a panel of judges that hold military rank and there are often military officers present on the panel. The presence of military officers alongside judges during a trial is meant to benefit the accused serviceman.
The military takes the legal needs of its servicemen very seriously. Instead of using any legally-trained judge to hear the case of service, the SAF like all militaries, uses a panel of judges which includes, along with a legally-trained judge, military officers who are best placed to understand military life, and who are thus in a better position to decide on the standards of discipline required in a unique situation. This is especially important given that Singapore has no full-time military judge serving in the General Courts Martial (they are all District Court judges serving their NS liabilities). Including military officers allows to Panel to bring in a perspective on dicipline which would not normally apply to “civilians”. In his speech on the opening of the new Court Martial Centre, then Judge Advocate-General Chan Sek Keong said that
“Only a military mind can fully understand what the military requires to fulfil this role. That is why military personnel who commit offences under military law are disciplined by their superiors or tried by military courts made up entirely of military personnel. This is a universal practice in all countries which have a long tradition of maintaining professional standing armies to defend their sovereignty and protect their peoples.”
III. Importance of the Rule of Law
The Military Justice System serves both the interests of justice as well as the need to maintain a disciplined and professional armed force. This is in line with the common idea of the rule of law, that the law is supreme, not the commander.
It has been said that all is fair in love and war, thus the concerns of upholding discipline in a military have often been the cause of great dispute. The need for military discipline and efficiency may trample upon certain rights that a serviceman was used to as a civilian, and this is inevitable. If a serviceman has breached guidelines, rules and codes of conduct, he will have to answer for it. However this should be done against the backdrop of a legal system that makes its rules simple and accessible for serviceman. In the context of a military trial, serviceman are not well placed to access legal advice, thus it is important that serviceman are aware of and know what is expected of them in the eyes of the law. And the administrators of such laws should take it upon themselves to educate all servicemen. This is not so that they can ‘siam’ (avoid) responsibility if they flout rules (people who generally break the law don’t do it because they didn’t know it was illegal), this is to ensure confidence in the system.
The idea of ‘rule of law’, a concept that extends rights to all and equalizes both the servicemen and commander before it, is critical if we are to move away from this general suspicion of the military justice system as one that ‘rules by law’ instead. The latter is definitely not the case in Singapore; however bad impressions last longer than good ones and the military justice system cannot remain as one that relies on fear and ambiguity to retain an aura of control, instead as we move on to a more progressive and enlightened society, the system must have the confidence of those who are subject to it. It should clearly and transparently provide for the standards of discipline expected from every soldier and must be done within a legal framework that gives every serviceman a chance for his case to be heard.
IV. Checks and Balances in Summary Trials
A serviceman may be tried via summary trial, which is a condensed trial conducted by his superior officer that eschews a few legal procedures. Of course such trials are limited both in the scope of the offences the officer can deal with and the degree of the punishment meted out. Even though units have a certain freedom to charge their own servicemen through a summary trial, there are rules in place to keep check on how units dispense punishments and charges.
Is SAF law is the law of the Encik? Can military regulations and laws be abused? Of course there is a possibility that laws can be abused, especially since summary trials are held within the unit, and largely out of sight of the general public. However, there are stringent safeguards against abuse; this is where MINDEF steps in, requirng that all summary trial reports have to be submitted to the Legal Services Department. Moreover, if the serviceman feels that he has been unfairly treated, he could claim Court Martial instead of a summary trial. This is yet another avenue for a serviceman to vindicate himself, provided that he can prove his case in open court.
Thus the criticisms of the military justice system tend to be caused by misconceptions. Sadly this shows the real problem—servicemen need to know their rights. The SAF, through MINDEF Legal Services plays a vital role in providing and ensuring the necessary information reaches the serviceman. Furthermore this also would require a serviceman to have an active interest in his legal rights, which sometimes gets ignored in the spirit of a rather typical Singaporean way of thinking that it “won’t happen to me one”.
Above all, we need to remember that the Military Justice System, though not perfect, is in itself fair. Its procedures and provisions are nothing different from various militaries around the world. We must remember the system’s function as one that serves to maintain discipline and looks at the offending serviceman within the greater picture of his unit and combat function rather than just his personal self. However even if the worse should happen and a serviceman is to be charged, we should not hesitate to ensure that he is fully aware of the various rights that he is entitled to.
*All opinions discussed remain that of the author and do not reflect the views of the Military Justice Project.