By Chong Joe En

In April 2011, lawyers, scholars, and exonerated victims from across the globe convened in Cincinnati to explore the phenomenon of wrongful convictions in the international arena. The fruits of this seminal conference have now been officially published in the University of Cincinnati Law Review. 

Titled “Symposium: An International Exploration Of Wrongful Conviction”, the issue comprehensively compiles studies on wrongful convictions from Australia, Canada, Chile, China, Ireland, Japan, Latin America, the Netherlands, Nigeria, Norway, Poland, South Africa, Switzerland, and Singapore. Each study was presented during the inaugural Innocence Network Conference, held in the University of Ohio in 2011.

This issue includes a study on the greater need for legal representation, written by Assistant Professor Cheah Wui Ling from the National University of Singapore’s Faculty of Law titled “Developing a People Centered Justice in Singapore: In Support of Pro Bono and Innocence Efforts”.

With topics ranging from detection of wrongful convictions and wrongful detentions to methods to correct them, every study demonstrates a different facet of wrongful convictions. Together, the issue presents the faces of many innocent victims around the world who have slipped through the cracks of the legal system and now languish behind bars.

The issue can be read below:

http://globalwrong.files.wordpress.com/2013/09/full-law-review-book-smaller-size.pdf

Chong Joe En, 22, is a second-year student at the National University of Singapore (Law) and a member of the current Innocence Project Core Team.

Issue courtesy of Professors and Authors of the Innocence Network, published in the Cincinnati Law Review, summer 2012, volume 80, no 4.

By Leong Li Jie

Time and again, Parliament and the judiciary have defended our laws permitting the mandatory death penalty (or MDP in short).  Enshrined in s. 302 of the Penal Code (Cap 224, 2008 Rev Ed Sing) and the Second Schedule of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed Sing), the MDP (or more accurately the statute that the MDP is enshrined in) requires that a court sentence a murderer¹ or a drug trafficker² to death. The MDP also appears in other legislation such as the Arms Offences Act (Cap 14, 2008 Rev Ed Sing)³ and the Internal Security Act (Cap 143, 1987 Rev Ed Sing)⁴.

Before we proceed further, it should be noted that the MDP and the death penalty are not one and the same. While both involve the death sentence, the death penalty is discretionary as a sentencing option. For instance, s. 3 of the Kidnapping Act (Cap 151, 1999 Rev Ed Sing) allows a court to impose life imprisonment and caning in lieu of the death penalty. Such discretion was exercised in Sia Ah Kew v Public Prosecutor, [1974] SGCA 2; [1974-1976] SLR (R) 54 where the Court of Appeal overturned the death sentences of five kidnappers in favour of a life sentence and caning. Conversely, the MDP, as the word ‘mandatory’ suggests, is non-discretionary.

Unsurprisingly, the MDP has attracted much controversy. Faced with its first constitutional challenge in 1980⁵, local courts (and the Privy Council) has since heard a number of attempts⁶ to abolish the MDP. In all of these attempts (of which none were successful), it was argued the MPD is unconstitutional and inhuman⁷ in that mandatory punishments cannot be mitigated.

The courts have stood their ground, deferring to Parliament and public policy. If Parliament believed that the MDP was necessary, then all that a court should do is to apply the MDP⁸. Parliament, in support of the MDP and death penalty in general, has reiterated on many occasions that the MDP deters crime⁹. Indeed, when Parliament relaxed the MDP in its recent amendments to the Penal Code (i.e. Section 302) and the Misuse of Drugs Act (i.e. Section 33B), Parliament noted that despite the amendments the deterrence value of the MDP remains a cornerstone of our laws¹⁰.

Many, including the eminent Professor Roger Hood¹¹, have however criticised the MDP’s deterrence value. A criminologist, Professor Hood devoted his life to the study of the death penalty and has conducted studies on the death penalty and the MDP in several jurisdictions across the world. One of his more recent studies involved how the Malaysian public perceived the MDP and whether the Malaysian government’s twin policy rationales of deterrence and public support for the MDP were justified¹².

This study, which was commissioned by The Death Penalty Project¹³, was predicated on survey responses collated from Malaysians of different social strata. Respondents were first asked if they supported or opposed the MDP. Respondents were then given a number of scenarios containing either a mitigating or an aggravating factor and were asked if they would sentence the person accused to death. An example of a mitigating and an aggravating scenario is as follows¹⁴:

The survey results were eye-opening. While 56% and 32.4%¹⁵ of the respondents stated that they were in favour of the MDP for murder and drug trafficking offences respectively (when asked if they supported or opposed the MDP), only 8%¹⁶ and 8%¹⁷ stated that they would mandatorily impose the death penalty for all the murder and drug trafficking scenarios – aggravating and mitigating – presented to them. In another portion of the survey, participants were asked for the reasons as to why they supported the MDP. Again, to some surprise, only 32% and 25%¹⁸ of the respondents stated deterrence as the main reason for their support of the MDP for murder and drug trafficking offences.

Put simply, the survey, as the esteemed professor himself claims, demonstrates that the Malaysian public does not support the MDP unequivocally or believes that the MDP deters crime. Consequently, the claims of deterrence and public support, as according to the survey, were doubtful, and Professor Hood urged the Malaysian Parliament to abolish the MDP¹⁹.  

In a recent visit to Singapore²⁰, Professor Hood suggested that the Singapore Parliament do the same. However as no such survey has been conducted in Singapore (especially one that could rival Professor Hood’s), we should not be too quick to pass judgment. And even if public opinion were sought, we need to understand that public opinion is not the law (although public opinion may help shape the law). There are many other factors – social, political, economic, and legal – which Parliament needs to consider. Till such satisfaction is reached, the MDP is likely to be here to stay.

Leong Li Jie, 22, is a second-year student at the National University of Singapore (Law) and the vice-president of the NUS Criminal Justice Club, which manages the Innocence Project.

By Yeoh Jean Ann, An Xian Chen, Shannon Chua, Kevin Lau

Singapore is famous for her zero-tolerance approach against drugs, and infamous for having one of the world’s highest per-capita execution rates.¹ Up till recently, the death penalty was mandatory for offences such as murder and drug trafficking over a certain weight. This controversial issue has always received the ire of anti-capital punishment activists. It was thus surprising that on 9 July 2012, Singapore Parliament announced a revision of the mandatory death penalty scheme for murder and drug trafficking offences. These changes were passed on 14 November 2012 and took effect retrospectively at the start of 2013, granting judicial discretion in sentencing for capital drug-related and murder offences.

One notable change is the addition of s. 33B to the Misuse of Drugs Act (Cap 185, 2008 Rev Ed)  (“MDA”), as amended by s. 14 of the Misuse of Drugs (Amendment) Act 2012, No. 30 of 2012. It provides that a person who would usually be subject to the mandatory death penalty can instead be sentenced to life imprisonment. This amendment may be a godsend for drug couriers such as Yong Vui Kong. On 14 Nov 2013, Yong, a high profile convict who was formerly on death row for drug trafficking was instead given life imprisonment and 15 strokes of the cane. He is the first such person to have benefited from this new scheme.²

During the passage of the Misuse of Drugs (Amendment) Bill³, Deputy Prime Minister Teo Chee Hean stated that the the mandatory death penalty is a key aspect of the deterrent message against drug abuse.  This paradigm is very much in line with Singapore’s traditionally strict stance on crime which favours aggressive law enforcement and crime prevention.⁴ On the other hand, Law Minister K. Shanmugam stated in that very same Parliamentary session that “[s]ociety must be protected against criminals. But justice can be tempered with mercy and where appropriate, offenders should be given a second chance.”⁵ This suggests that an overly strict system of sentencing and punishment, whilst enhancing the law’s deterrent effect, may come at the risk of meting out punishment which may hinder attempts at rehabilitation. The move towards a more discretionary death penalty regime in homicide and drug abuse cases can be construed as motivated by the desire to reconcile the tensions between the two broad objectives of deterrence and proportionality in sentencing⁶.

This article will focus on the discretionary death penalty in drug abuse cases. It will examine whether the current discretionary regime under the MDA is able to achieve the twin objectives of deterrence and proportionality as well as how well it is able to manoeuvre around their inherent tension to achieve a satisfactory state of coexistence between the two.

Examining the two conditions for judicial discretion

In an effort to achieve a more lenient and fairer sentencing, the legislation has created a certain degree of judicial discretion in sentencing for offences that previously carried a mandatory death penalty. Notably, s. 33B which was recently was added to  the MDA provides that a person subject to the mandatory death penalty under s. 5(1) and/or s. 7 MDA, may be sentenced to imprisonment for life instead if the following two criteria are satisfied. First, it must be proven that the person convicted was only a drug courier – this is a reference to the scope of the accused’s involvement in the act of trafficking or importing.  Secondly, the accused must either be certified by the Public Prosecutor that he substantively assisted the Central Narcotics Bureau (“CNB”) in disrupting drug trafficking activities (s. 33B(2)(b) MDA), or was suffering from abnormality of mind that substantially impaired his mental responsibility for the drug offence (s. 33B(3)(b) MDA).

The first condition of the judicial discretion of life imprisonment under s. 33B, states that the accused must be a courier. This is a pragmatic consideration because drug mules are rarely the initiators, financiers, or profiteers behind drug trafficking operations. More often than not, they have lower levels of culpability than suppliers. However, because s. 33B applies exclusively to drug couriers, this may unduly restrict the judges’ ability to extend the judicial discretion to those that are involved in various other peripheral roles with similarly low levels of culpability. Such a restriction would reduce the purported proportionality of the judicial discretion.

According to DPM Teo Chee Hean, the role of a drug courier is to be confined strictly according to the words of the statute – “transporting, sending or delivering”. ⁷  Justice Tay sought to clarify this issue in Public Prosecutor v Abdul Haleem bin Abdul Karim (“Abdul”).⁸ He recognized that s. 33B(2)(a) only applied to the narrow role of a courier, but warned against “[construing it] pedantically such that an incidental act of storage or safe-keeping (which is not one of the express roles listed under s.33B(2)(a))… would mean that he is also playing the role of storing or safekeeping drugs within the drug syndicate”.⁹ Therefore, he held that even though the accused persons had held onto and stored the drugs, which possibly meant that their role was not merely restricted to that of a courier, they nevertheless fell under the scope of s. 33B(2)(a).  This is because the act of storage was only incidental to the act of transportation which was done for the purpose of delivery.¹⁰ The authors consider this is heartening news, because despite the ostensibly technical and strict nature of the “courier” requirement, the courts can take a flexible approach in consideration of the totality of the facts to grant leniency to accused persons.

The second condition  of the judicial discretion under s. 33B is that the accused person must be certified by the Public Prosecutor to have substantially assisted the CNB in disrupting drug trafficking activities. The authors also have concerns about this requirement, because the determination of the second condition of the judicial discretion would then fall under the purview of the Public Prosecutor, as opposed to the judge. Moreover, during the Misuse of Drug (Amendment) Bill debate, multiple Members of Parliament expressed concern as to whether “couriers who are low in the hierarchy within drug syndicates will be able to provide useful information to substantively assist the CNB” even if they are willing to help, and consequently still face the death penalty.¹¹ In response to such queries, DPM Teo Chee Hean acknowledged that not all drug couriers would have the required information to fufill the requirement of certifcation but he replied that “[t]he policy intent of this substantive cooperation amendment to our mandatory death penalty regime is to maintain a tight regime – while giving ourselves an additional avenue to help us in our fight against drugs, and not to undermine it”.¹²

DPM Teo Chee Hean defended this policy by stating that offering couriers a chance to escape the gallows by substantially assisting the CNB goes towards s. 33B’s wider goal of disrupting drug operations. If couriers who have been arrested are persuaded into divulging critical information, drug syndicates may have to stop relying on experienced couriers who have “gleaned more information about the networks”, and have to use new couriers, which “will make their supply chain less reliable”.¹³ DPM Teo also stated the need to continue to adjust our strategies as syndicates adapt to the changes in the law, and recognized even if s. 33B did not yield any helpful, substantial information, “we would at the very least have increased the risks and complications for the syndicates”.¹⁴

The authors interpret this legislative policy to mean that it is the information that a drug courier possesses rather than his culpability that exonerates him. This is, in our view, a policy that can lead to unfair judicial outcomes. A drug courier who willingly volunteers to smuggle drugs into Singapore would be spared the death penalty if he has information which can substantially assist the CNB. Conversely, a drug courier who was forced to smuggle drugs, and thus of lesser culpability, would not be spared from the gallows if he possesses no information that lends substantive assistance. Therefore, we are of the view that the requirement of substantial assistance goes little way towards proportionality and nuance. In fact, it is expressly skewed in favour of deterrence, arguably at the expense of fairer sentencing.

Whether a balance has been struck

The supposed tension between deterence and pro could in fact be a false dichotomy. The view that effective law enforcement and fairer sentencing share an inverse relationship has been criticized by academics as based on “common sense assumptions” which are not substantiated by clear evidence¹⁵. The authors support this view and submit that the discretionary death penalty under s33B is actually able to achieve progress in both areas simultaneously. As has been observed, the application of judicial discretion to drug couriers is an acknowledgement of the generally lower culpability of drug couriers. Additionally, by extending a line of mercy towards drug couriers in exchange for their valuable assistance in the drug enforcement endeavours, Parliament is able to pursue a fairer and more lenient system of sentencing while enhancing the enforcement effectiveness of the CNB. Granted, this approach does draw rather ambiguous moral distinctions, but it can be argued that providing mercy in some cases is still better than no mercy at all. The authors are of the opinion that the discretionary death penalty under s. 33B is a more progressive step in striking the balance between deterrence and fairer sentencing, and with time it may result in more just outcomes in deciding capital cases.

Yeoh Jean Ann, Shannon Chua, both 20, Kevin Lau and An Xian Chen, both 22, are second-year students at the National University of Singapore (Law), and one of the Investigation Teams in the Innocence Project.

By Jeremy Goh, Reynard Chua and Ng Yeeting

Santae Tribble, 52, was convicted for the murder of a Southeast Washington taxi driver in 1978.  The killer was witnessed to be wearing a stocking. A piece of hair was subsequently recovered from a stocking found near the crime scene. A FBI examiner found that piece of hair microscopically matched Tribble’s. After serving his 28-year sentence, Tribble was exonerated in 2012, following a DNA test that conclusively proved that the hair found on the stocking was not his.¹

Donald Eugene Gates, 60, was charged and convicted for the rape and murder of a 21 year-old university student in 1981. At trial, the FBI forensic analyst said Gates’ hairs were “microscopically indistinguishable” from hairs found on the victim’s body. Following a subsequent DNA test conducted in 2007, it was proven that Gates was neither the rapist nor the killer. By the time of his exoneration, Gates had served 27 years of his sentence.²

Kirk Odom, 50, was only 18 years old when he was arrested, charged, and convicted for raping a 27 year-old woman. The FBI special agent testified that a strand of hair found on the victim’s nightgown was microscopically similar to Odom’s hair and that “the [two] samples were indistinguishable”. In 2011, a DNA test excluded Odom’s involvement. He spent over 22 years in prison.³

Odom’s DNA exoneration on 13 July 2012 exposed problems with the FBI’s use of forensic hair analysis which sparked off a federal inquiry into convictions based on microscopic analysis of hair samples found at crime scenes. The three cases of D.C. men exonerated through DNA testing showed that forensic hair analysis had contributed to their wrongful convictions for rape or murder in the early 1980s. The review will see an examination of more than 21,000 federal and state cases referred to the FBI Lab’s hair unit between 1982 through 1999.⁴

What is interesting here is that the review sees an unusual collaboration between the FBI and the Justice Department, in consultation with the United States Innocence Project and the National Association of Criminal Defense Lawyers (“NACDL”).⁵ This collaboration appears to be the first of its kind, and this article shall examine the merits of such collaborations, their relevance in Singapore’s context, and ultimately propose a viable framework to deal with obsolete forensic methods.

Ad-hoc Committees vs. Perennial Committees

The collaboration between the FBI, the Justice Department, the United States Innocence Project and the NACDL was clearly in response to the increasing awareness of the inaccuracy of matching microscopic analyses of hair samples found at crime scenes, and the disquieting discovery that these samples were in fact wrongly identifying entirely innocent persons as perpetrators of offences.

The formation of such “ad-hoc committees” seems to be reserved for situations where a significant error was discovered in a widespread forensic practice.

The advantage of ad-hoc committees is that they allow for highly focused and specialised inquiries into particular issues of concern. In this instance, the collaboration focuses on the more than 2000 criminal cases in which the FBI conducted microscopic hair analysis, which is the process of matching the physical microscopic details of hair. The inquiry will look into, amongst other things, whether lab analysts have overstated the significance of their findings. This is to prevent situations from arising akin to Odom’s case, where the hair sample found at the crime scene was claimed to be “microscopically indistinguishable” from Odom’s hair samples, but DNA testing subsequently proved otherwise. The inquiry will also look into whether the laboratory reports and testimonies used during the convictions were scientifically valid. DNA testing, which is scientifically more accurate,⁶will be used on the available evidence to determine conclusively whether the hair sample belonged to the convicted person. With a single committee (i.e. the collaboration) administering the review, the aims of the previously separate organisations are now more closely aligned. This will also allow the different organisations to pool their resources and expertise.

The downside of ad-hoc committees, however, is the fact that its formation is reactive, rather than preventive. The problem of inaccurate microscopic analysis of hair was only discovered when, as in the above-mentioned cases of wrongful convictions, a pattern of systemic error became glaringly obvious. This review may have come too late for the convicted persons who spent significant time in prison, especially in the case of death row inmates. In some tragic cases, the convicted person may have long since been executed.⁷

The need for constant vigilance against such wrongful convictions is apparent.

In the United Kingdom, the Criminal Cases Review Commission (“CCRC”) is an example of a “perennial” committee. The CCRC was set up by the Criminal Appeal Act 1995 in response to worries regarding possible miscarriages of justice. It was intended that the CCRC be an independent body that conducted thorough re-examinations of alleged miscarriages of injustices.⁸

The draw of such a permanent, institutional approach as opposed to an ad-hoc committee is that with cases constantly being reviewed by an independent body, any pattern or possible wrongful convictions based on inaccurate scientific analysis can be more readily identified. This stands in contrast to an ad-hoc committee that convenes only when it is called – as is the present case in the US – after news of the inaccuracy of microscopic hair analysis went public. To this end, a perennial institutional body is best placed to play an active role in flagging any possible systematic causes of miscarriages of justice, such as inaccurate scientific analyses. Examples of perennial committees include the CCRC as mentioned above, as well as the various Innocence Projects around the world.

That said, it has to be recognized that a “perennial” committee cannot realistically be expected to relook all claims of miscarriages of justice. Perennial committees often rely on the initiative and application of convicted persons who feel that they were wrongfully convicted. This necessarily excludes potentially wrongfully convicted individuals who have resigned to their fate and have not been actively policing their rights, or individuals who are not even aware of the perennial committee and therefore miss their opportunity for exoneration. In this aspect, it can be said that a reactive ad-hoc committee has far greater reach. This is because this committee can review all cases that come within its designated scope of review; and that scope may capture the particular categories of individuals which perennial committees might not. In this particular case, the collaboration between the FBI and the Justice Department, in consultation with the United States Innocence Project and NACDL will be looking at the over 2000 cases in which the individual was convicted on the basis of forensic hair analysis. This encompasses all cases, regardless whether the convicted persons have applied for a review. Seen in this light, ad-hoc committees are certainly attractive in their own right.

Relevance to Singapore

Incidences of inaccurate forensic testing are not foreign to Singapore. Between October 2010 and August 2011, it was discovered that the Health Sciences Authority (“HSA“) had used a DNA test reagent at a higher concentration than usual.⁹ Such a mistake could have caused a marginal reduction in the sensitivity of any DNA tests conducted using that reagent.  This incident affected a total of 412 criminal cases.¹⁰ Experts confirmed that no false positives, nor in fact any substantial difference in test results arose from this mistake.¹¹ Nevertheless, in light of the possible impact on legal proceedings and consequences to accused persons such an error could possibly cause, the HSA Board Review Committee was set up on 1 January 2012 to identify the relevant cases for re-testing.¹² This committee comprised stakeholders from both the legal and forensic science communities.

HSA consulted with the committee and eventually resolved the matter by retesting 87 criminal cases. All information from the re-testing was given to the Attorney-General’s Chambers to facilitate it in arriving at the appropriate prosecutorial decision in each case.¹³ Since then, the HSA Board Review Committee has recommended several measures to prevent a similar incident from happening.¹⁴ Nevertheless, this incident highlights the need to stay vigilant against possible mishaps.

A three-pronged approach?

How then, should such dangers be avoided, or if unavoidable, corrected?

It is recommended that a perennial committee should be the basic building block of a system to prevent injustices arising from inaccurate forensic practices. The three D.C. men secured their own exonerations through lengthy and tedious legal journeys, which included multiple tries at attempting post-conviction DNA re-testing.¹⁵ It is not simply the credit of the NACDL, the FBI or the Innocence Project that the inaccuracy of microscopic hair analysis as a forensic practice had been brought into the public spotlight; it was the perseverance and determination of the three men in clearing their names that uncovered a cause of wrongful conviction which may have potentially incriminated others like them. Regardless, it would be dangerous for our criminal justice system to expect the wrongfully convicted to rely solely on their own efforts and resources to get their due justice. A “perennial” committee such as the CCRC in the UK would have been invaluable source of legal recourse to the 3 wrongfully convicted D.C. men. Arguably, this reasoning applies with equal force to Singapore.

As humanity’s understanding of science and its limits improve gradually over time, it is inevitable that more accurate methods will supersede older ones and it is entirely conceivable that outdated forensic methods may have an impact on the accuracy of convictions. Of course, investigating officers and prosecutors are doing the best that they can with the prevailing tools at any particular time. However, when presented with the opportunity, obsolete forensic evidence should be reviewed using the latest, most accurate scientific methods and technology to ensure that there have been no miscarriages of justice. This particularly applies to cases which turn exclusively on the weight of such forensic evidence. To this end, it is heartening to see that the legal community in Singapore has recognised the importance of keeping up with scientific developments in their legal work.¹⁶

Forensic watchdogs in the US are now conducting reviews of crime labs across the country to determine whether law enforcement’s previous reliance on hair analysis has resulted in any grievous errors in forensic testing.¹⁷ However, it is submitted that such reviews should be done as a preventive measure, instead of a reactive one. After all, prevention is better than cure, particularly when a wrongful conviction is at stake.

Notwithstanding more advanced scientific forensic methods being employed, an unforeseeable margin of error, human or otherwise will always be present. On this front, ad-hoc committees still have a role to play. Ad-hoc committees form the reactive arm of the framework that prevents injustice arising from inaccurate forensic practices. When wide-reaching mistakes occur despite preventive measures, ad-hoc committees are best equipped to quickly identify all cases where the mistake could potentially have an impact on. Counter-measures can then be efficiently rolled out, so as to contain and eventually eliminate any adverse impacts the mistake would have on legal proceedings. In this regard, the HSA Board Review Committee is a good example of the ability of ad-hoc committees to rectify potential forensic errors posthaste.

In conclusion, the above analysis shows us that there is no one type of review committee that is fully equipped to deal with obsolete forensic methods. Each type of committee has its own strengths and shortcomings. A holistic approach to reviewing forensic methods would preferably adopt facets from both types of review committees: First, a perennial committee as the basic building block providing the relevant institutional framework and guidelines. Second, preventive measures involving regular reviews of the forensic methods employed in securing convictions, educating the various branches of law enforcement on the developments of new forensic methods. Lastly, the reactive arm in the form of ad-hoc committees, which has the ability to respond quickly and efficiently to any glaring mistakes identified. It is hoped that by synthesizing the best of each facet, we will create a framework in which wrongful convictions due to inaccurate forensic practices are minimized.

Jeremy Goh, Reynard Chua, both 22, and Ng Yeeting, 20, are second-year students at the National University of Singapore (Law), and one of the Investigation Teams in the Innocence Project.

By Elena Tan, Ernest Wong, Loh Tian Kai and Wong Ee Ming

In the landmark case of Public Prosecutor v. Shaik Alaudeen,¹ Justice Choo Han Teck had to grapple with the limits of the High Court’s exercise of its revisionary powers in amending a charge after the accused has been convicted on that charge. The accused, Shaik Alaudeen, had previously pleaded guilty to a charge under s 8(b)(i) of the Misuse of Drugs Act² in 2002. Following his release from the Drug Rehabilitation Centre, the accused was again arrested, this time for consuming a specified drug under the First Schedule of the MDA, thus committing an offence under s 8(b)(ii) of the MDA.

The Deputy Public Prosecutor (“DPP”) in this case requested that the court exercise its revisionary powers under s 268 of the old Criminal Procedure Code³ [now s 401 of the Criminal Procedure Code 2010⁴], read with s 256(b) of the old CPC [now 390(b) of the CPC 2010], to amend the 2002 charge⁵ against the accused, from one of consuming a controlled drug under s 8(b)(i) of the MDA to one of consuming a specified drug under s 8(b)(ii) of the MDA.

If the amendment were allowed, it would mean that the accused possessed a prior drug related antecedent under s 8(b)(ii), and he would therefore be liable under s 33A of the MDA for the offence of repeat consumption of a specified drug at present, which attracted a heavier sentence – minimum mandatory sentence of 5 years and 3 strokes of the cane.

Evidently, the type of charge which is preferred against accused persons is no mere formality; if an accused person is convicted on a wrongly framed charge, or if offence for which he was originally charged with was altered subsequent to the completion of the sentence, there will be significant implications down the road. This article looks at Shaik Alaudeen and examines the requirements behind amending a charge post-conviction. It will also look at the different pre-requisites that an amended charge post-conviction will be subject to when petitioning for a Criminal Revision, instead of a Criminal Appeal.

In his submissions, the DPP relied on the 1996 case of Garmaz s/o Pakhar v. Public Prosecutor,⁶ where the Court of Appeal held that the court could exercise its powers under s 256(b) of the old CPC to amend a charge post-conviction, if the proceedings at trial would have taken the same course and the evidence recorded would have been substantially unchanged. The Court of Appeal in Garmaz stressed that the fulfilment of these two requirements would meet the underlying objective of judicial charge amendment – to avoid prejudice against the accused.

However, on the issue of the amendment itself, Choo J found that the DPP had not fulfilled the two requirements, viz that proceedings at trial would have taken the same course and the evidence recorded would have been substantially unchanged. He noted that the mere fact that the actus rea and mens rea for the original and proposed charges were the same did not axiomatically mean that the accused was not prejudiced by the amendment. After all, even if he had pleaded guilty to the original charge, he might not have similarly pleaded guilty to the amended charge.⁷ This is an eminently reasonable argument, because the courts should assume that the accused has pleaded guilty only to the precise charge which was originally laid before him, rather than “impute” a guilty plea to any subsequent charges which can be construed on the facts. Shaik Alaudeen is thus instructive for the proposition that the Prosecution is not entitled to petition to amend a charge after an accused has pleaded guilty and thereafter claim there would not be in any event any prejudice to the accused.

Justice Choo further distinguished Garmaz from the present petition on the grounds that the court in Garmaz had been exercising its appellate jurisdiction while the court in Shaik Alaudeen was asked to exercise its revisionary jurisdiction. Shaik Alaudeen held that a different test applied to the courts of first instance exercising their revisionary jurisdiction. In an appellate jurisdiction, the court could only retrospectively evaluate the trial below and confine their inquiry to whether immediate proceedings to amend the charge would have caused prejudice to that trial. This may be wholly reasonable for an appellate court, which is a trier of the law, not the precise facts of the case. However, a revisionary court has a broad discretionary power to correct serious injustice and must therefore had to consider the entire context of the case, including any possible prejudice to the accused beyond the trial itself.

The prosecution, in accordance with regular revisionary proceedings,⁸ therefore had to show that not amending the charge post-conviction would result in some palpable wrong or injustice to themselves. But that alone would not suffice, as the purported injustice had to be then balanced against the prejudice which would suffered by the accused upon the amendment of the charge post-conviction. On the facts, Choo J was not convinced that the mere erroneous framing of a charge evinced some serious injustice, nor that this error justified subjecting the accused to prejudice.

Shaik Alaudeen is therefore instructive on a further point – that revisionary powers significantly alter the burdens on the prosecution and court when amending charges. The prosecution not only needs to show some serious injustice; but must prove to the court that the correction of the serious injustice warrants potentially prejudicial actions against the accused. One possible justification for these higher standards is the accused persons’ ability to be present and have their case be heard before the court. Where an appeal is lodged against a custodial sentence (as was the case in Garmaz), the accused is bound to appear in the High Court. Thus, there is no question that his defence and evidence will be heard in light of an amended charge. However, where the amended charge is sought by the prosecution by way of a petition for Criminal Revision (as was the case in Shaik Alaudeen), the accused is not necessarily present and would thus have no opportunity to have his defence and evidence heard in light of the amended charge.

The charge is the starting point of every criminal matter before the courts and it is impossible to understate its importance. Altering or wrongly framing the charge may well change the trajectory of a judgment and the fate of the accused. As stated in Professor Tan Yock Lin’s authoritative text, Criminal Procedure⁹, “If there be any one principle of criminal law and justice clearer and more obvious than all others, it is that the offence imputed must be positively and precisely stated, so that the accused may certainly know with what he is charged, and be prepared to answer the charge as best he may.”

Elena Tan, 20, Ernest Wong, Loh Tian Kai and Wong Ee Ming, all 22, are second-year students at the National University of Singapore (Law), and one of the Investigation Teams in the Innocence Project.

By Chong Joe En

Mental illnesses are an unspoken and often unseen aspect of any society and Singapore is no exception. Studies show that at least 1 in 17 Singaporeans have suffered from depression at some point in time in their lives.¹ This aspect of mental health often has far reaching impacts on criminality and criminal defence. Only recently, a housewife who was convicted of maid abuse had her 16 month jail-term commuted to a $15,000 fine on appeal.²  The High Court attached significant mitigating weight to her diagnosis of psychiatric problems. Indeed, this consideration of mental illness is itself encoded into section 84 of the Penal Code, which provides the defence of unsoundness of mind.

Given the pervasiveness of mental illnesses and its possibility as a criminal defence, it is not surprising that accused persons will often attempt to argue a mental health condition, whether actual or otherwise, to escape conviction or to get a reduced sentence. How then are Criminal Justice professionals, Prosecutors, criminal defence lawyers, and judges alike, distinguish between the genuine cases, and those who are merely malingering?

This was the focus of the seminar given by Dr Kenji Gwee, Senior Clinical Forensic Psychologist from the Institute of Mental Health (“IMH”) to members of the Innocence Project from the NUS Criminal Justice Club. The Innocence Project, which is a student run organisation, seeks to act as a safety net of last resort for individuals who believe they have been wrongfully convicted. Part of that process involves evaluating the veracity of the applicant’s claims, which in some cases involve possible mental illness related defences. Also invited to the seminar were stakeholders from partner organisations such as representatives from the Criminal Legal Aid Scheme of The Law Society of Singapore.

According to Dr Gwee, in the United States, an estimated 32% to 46% of the prison population have at one point in time malingered. In Singapore, accused persons may sometimes seek a diagnosis of mental illness at IMH prior to trial in an attempt to avoid or mitigate punishment for their alleged crimes. Mental illnesses are by nature varied, and run the gamut from personality disorders to substance abuse; the three most common disorders in Singapore are, in order, depression, alcoholism, and Obsessive Compulsive Disorder (OCD). In order to spot deception on the part of claimants, the interviewer must be able to spot discrepancies in the symptoms displayed by the claimants and the symptoms common to actual sufferers of the illness. This necessitates a keen understanding of the nuances and differences between various mental illnesses.

The variation in mental illnesses also precipitates different types of crimes. For instance, accused persons with Attention Deficit Hyperactive Disorder (ADHD) are more likely to have committed spontaneous offences as opposed to carefully plotted offences.

Some of the tips given by Dr Gwee to members of the Innocence Project include obtaining and cross-checking against corroborative information (such as pre-trial reports and psychiatric reports) and keeping an eye out for inconsistencies in testimony.

The pervasiveness of mental illnesses will only continue to grow. According to a survey by the IMH, an estimated one in ten Singaporeans will be stricken with mental illness in their lifetime. Given the possibility of malingering and its ramifications to the administration of criminal justice, it would be apposite to complement existing criminal law practices with an appreciation for nuances of mental illnesses.

The members of the Innocence Project would like to thank Dr Kenji Gwee and members of the Criminal Legal Aid Scheme for their illuminating presentations.

Chong Joe En, 23, is a second-year student at the National University of Singapore (Law) and a member of the current Innocence Project Core Team.

¹http://www.imh.com.sg/uploadedFiles/Newsroom/News_Releases/SMHS%20news%20release.pdf.

²Soh Meiyun v. PP [2014] SGHC 90, http://www.singaporelawwatch.sg/slw/index.php/headlines/41054-jail-term-reduced-to-fine-for-woman-who-abused-maid?utm_source=web%20subscription&utm_medium=web.

By Sim Yizhen, Xing Yun, Hong Jia Hui and Valencia Soh

“The truth is rarely pure and never simple”, opined the famous playwright Oscar Wilde. Indeed, ascertaining the truth in most sexual assault cases poses a very real and troubling problem to judges. In cases involving rape under section 375 of the Penal Code,¹ the determinative element is often the consent of the victim. Unfortunately, there is rarely tangible physical evidence to prove consent or the lack thereof. As most sexual crimes happen behind closed doors, oftentimes the only proof that the sexual acts were committed without the victim’s consent is the victim’s testimony itself.² This article will explore how the accused persons are tried in cases where courts can only rely upon the victim’s evidence. In the process, the article will also touch on issues of witness testimony and consent, which are the determinative elements of such sexual assault cases.

In the seminal case of Ong Mingwee (alias Wang Mingwei) v. Public Prosecutor,³ the accused, Ong, was accused of raping the 25-year-old female victim, who claimed that he did not allow her to leave his house unless she had sex with him. The undisputed facts were that the accused had not threatened her with violence or physically restrained her in any way,⁴ and that she was sober enough to have possessed the capacity to give consent.⁵ The victim’s consent to sexual intercourse was therefore freely given; not vitiated by fear of injury, wrongful restraint or intoxication. Additionally, the appeal judge also doubted the corroborative value of the testimonies of other prosecution witnesses for being tentative and non-committal, lacking in particulars and depth. Therefore, because the Prosecution’s case “principally relied on the complainant’s evidence in support of its case”, her lack of credibility “directly affected the question of whether the Prosecution had discharged its burden of establishing the elements of the charge (i.e. that the complainant did not consent to sexual intercourse with the appellant) beyond a reasonable doubt”.⁶ The charge having not been made out, the accused was accordingly acquitted.

Ong Mingwee presents a very specific category of sexual assault cases where the conviction or acquittal of the accused rests almost exclusively on the victim’s testimony. Therefore, it is instructive to analyse the court’s deliberation in a realm where the facts evince only of a limited scope of evidence. Two other issues were highlighted in the judgment—the credibility of the victim’s testimony, and the precise definition of consent.

Witness Credibility: “Unusually Convincing” Testimony

It is trite law that the standard of proof that the Prosecution must meet in criminal cases is that of “beyond a reasonable doubt”.⁷ This is taken to mean “reasoned doubt”, which in turn mandates that all doubt, for which there is a reason relatable to and supported by the evidence presented, be taken into account in favour of the accused.⁸ However, Ong Mingwee and other relevant decisions⁹ on sexual assault suggest that in cases where the conviction rests solely on the victim’s testimony, the burden of proof is more multi-faceted than simply proving the elements of the charge beyond a reasonable doubt. Indeed the High Court in Ong Mingwee stated that “it was trite law that a conviction may be sustained on the testimony of one witness only if the court made a finding that the witness’ testimony was so compelling that a conviction could be based solely on it.”¹⁰ This view was first adopted in Khoo Kwoon Hain v. PP,¹¹ where Yong CJ (as he then was) held that while there was no rule in Singapore that in sexual offences, the evidence of the complainant must be corroborated, it was nonetheless unsafe to convict unless the evidence of the complainant was “unusually convincing”.¹²

The terms “unusually convincing” and “unusually compelling” are used interchangeably, and its exact definition and its relationship with the standard of “beyond reasonable doubt” are rather difficult to pin down. In Teo Keng Pong v. PP, Yong CJ stated that “unusually convincing” simply meant that “the witness’s testimony must be so convincing that the Prosecution’s case was proven beyond reasonable doubt, solely on the basis of the evidence.”¹³ This definition, which equates “unusually convincing” with “beyond a reasonable doubt”, has been rendered otiose by the Court of Appealin Ong Mingwee,¹⁴ which reasoned that this cannot be the case or else “unusually convincing” would merely be a restatement of the ordinary standard of proof.

As the Court of Appeal in AOF¹⁵ further clarified, “[t]he phrase ‘unusually convincing’ is not a term of art; it does not automatically entail a finding of guilt… Nor does it dispense with having to assess the complainant’s testimony against that of the accused, where the case turns on one person’s word against the other’s.”

The case of AOF¹⁶ also clarifies the substantive elements of “unusually convincing” testimony which is the “demeanour of the witness” weigh alongside “both the internal and external consistencies found in the witness’ testimony.”¹⁷

From this, the authors infer that the process of proof in such cases is two-fold. First, the Prosecution must show that the complainant’s testimony satisfies the substantive elements of being “unusually convincing”. Second, this “unusually convincing” evidence must then hold up to the regular criminal standards of proving the Prosecution’s case beyond reasonable doubt. This two-step process is implied in AOF, which states that the law on unusually convincing testimony does not change the “ultimate rule that the Prosecution must prove its case beyond a reasonable doubt”.¹⁸

The authors feel this is a positive indication because even if a complainant’s testimony is “unusually convincing”, it can only establish the internal coherence and persuasive demeanour of the complainant; these factors alone cannot ipso facto be determinative of the guilt. As noted by SGHC in PP v. Mohammed Liton Mohammed Syeed Mallik,¹⁹ “[i]n a criminal case, the court may find… the complainant’s story to be more probable than that of the accused person’s version, and yet, be convinced that there is a reasonable possibility that the accused person’s story could be true. If that were the case, the court’s duty is to acquit.”

Witness Credibility: The Archaic Defence of “Immoral Character”

It is interesting to note that, until recently, a man prosecuted for rape could impeach the credibility of the alleged victim by demonstrating, under section 157(d) of the Evidence Act that the victim was of “generally immoral character”.²⁰ This provision was based on an old common law assumption that a person who is sexually experienced is more likely to be untruthful and to have consented to intercourse.²¹ The direct implication of this rule is that rape charges involving female victims who are deemed “promiscuous” rarely succeed when it is a case of one (wo)man’s word against another. Section 157(d) is evidently illogical in that it transfers a woman’s consent to copulate with third parties to the accused. Local women rights group AWARE has also identified the provision’s potential to deter rape reporting and codify victim blaming.²²[22] Following submissions by AWARE, the Singapore Parliament decided to repeal the section in early 2012.

This does not however mean that a victim’s sexual history is now entirely inconsequential.²³ For example, evidence of prior consensual sexual activities between the two parties could be adduced to demonstrate the victim’s state of mind towards the accused.²⁴ The court also retains much latitude in deciding whether the victim’s sexual history is “relevant”, as it does with regards to any other evidence.²⁵ This is especially so since Singapore has yet to implement “Rape Shield” laws similar to those in other jurisdictions.²⁶

Consent

The second issue judges must attend themselves when convicting solely on the basis of witness testimony and indeed in all cases of rape under section 375 of the Penal Code is the element of consent. The Penal Code provides no statutory definition of consent, though it does elucidate when consent is invalid.²⁷ Relying on the definition of Ratanal & Dhirailal’s Law of Crimes²⁸ adopted by the local High Court²⁹, consent is voluntary participation where one freely exercises a choice between resistance and assent after the exercise of intelligence, based on the knowledge of the significance and the moral quality of the act.³⁰ In essence, consent requires “the exercise of free and untrammelled right to forbid or withhold what was being consented to” in which there exists “a voluntary and conscious acceptance of what was proposed to be done by another and concurred by the former”.³¹

It is particularly challenging to ascertain whether there was consent in controversial cases involving unconventional fact patterns, such as where the victim had originally consented to the sexual act, but withdrew her consent right before the time of the sexual act, or if the victim had indeed agreed to have sexual intercourse but was mistaken about significant issues which motivated her to agreement.³² It has been argued that if at the time of the sexual activity a person would not have consented to it had they known all the facts, including the accused’s state of mind, there is no consent.³³ Similarly, if the accused knew or ought to have known that the victim was not consenting to the activity, he should be guilty of an offence.³⁴ The general principle, it seems, is that consent must be continuous, it must be given at the material time, and for that particular act.

In the realm of other sexual offences such as outrage of modesty³⁵ and insulting the modesty of a woman,³⁶ it has been suggested that unfortunate circumstances have resulted from the arguable difficulties of the accused proving his innocence. For instance, where the accused is too drunk to recall anything, he may compromise on his factual innocence and pay the complainant to compound their cases in order to avoid a legal suit that might risk harming his reputation and matrimonial relationship.³⁷ However, it must be noted that the law does not discriminate either party and the standard of proof to be applied in such sexual offences is simply the criminal standard—beyond a reasonable doubt. Where there are allegations made against the accused, the veracity of the victim’s testimony and the strength of the witness recollections must be subject to scrutiny.

It thus bears well to keep in mind Yong CJ’s warning in Siew Yit Beng v. Public Prosecutor,³⁸ that allegations of sexual assault should never be taken lightly because “given the social stigma usually attached to such offences, it could irretrievably damage the reputation of the alleged “rapist” even if the allegations were subsequently proven to be false.”³⁹ In Siew, the accused was sentenced to four weeks’ imprisonment for making a false allegation of rape against her Chinese physician. In his judgment, Yong CJ highlighted the difficulty of verifying allegations of sexual assault because they are often the “word of one person against another”.

In an area of criminal justice where the facts are often unclear, the accounts are varied and the physical evidence sparse or unhelpful; the heavy onus is often on judges to tread with delicacy and precision to ensure that the factually innocent are not wrongfully convicted.

Sim Yizhen, Hong Jia Hui, Valencia Soh, all 21, and Xing Yun, 23, are third-year students at the National University of Singapore (Law), and one of the Investigation Teams in the Innocence Project.

¹Cap 224, 2008 Rev. Ed. Sing.

² Chen Siyuan & Eunice Chua, “Wrongful Convictions in Singapore: A General Survey of Risk Factors” [2010] 28 Sing. L. Rev. 98.

³ [2012] SGHC 244 [Ong Mingwee].

⁴Ibid. at [39].

⁵Ibid. at [28].

⁶Ibid. at [44].

⁷Ibid. at [34] and [35].

⁸Public Prosecutor v. Mohammed Liton Mohammed Syeed Mallik [2007] SGCA 48 at [35] [Mohammed Liton].

⁹ See e.g. Public Prosecutor v. Ravindran Annamalai [2013] SGHC 77; Public Prosecutor v. V Murugesan [2005] SGHC 160.

¹⁰ Ong Mingwee, supra note 3 at [45].

¹¹[1995] 2 S.L.R.(R.) 591.

¹²Mohammed Liton, supra note 8.

¹³Teo Keng Pong v. PP [1996] 2 S.L.R.(R.) 890 at [73].

¹⁴Supra note 3 at [37] to [39].

¹⁵Ibid at [114(d)]. AOF v. Public Prosecutor [2012] 3 S.L.R. 34 [AOF].

¹⁶ Ibid. at [113].

¹⁷Ibid. at [115].

¹⁸ Ibid. at [113].

¹⁹Public Prosecutor v. Mohammed Liton Mohammed Syeed Mallik [2007] SGHC 47 at [4] ["Mohammed Liton (No 2)"].

²⁰ Evidence Act (Cap 97, 1997 Rev. Ed. Sing.), s. 157(d); since repealed by Evidence (Amendment) Act 2012 (Act No. 4 of 2012), s. 18.

²¹ R v. Seaboyer; R v. Gayme [1991] 2 S.C.R. 577.

²² “Repeal of Section 157 (d) of the Evidence Act; Implementation of Rape Shield Laws”, online: AWARE <http://www.aware.org.sg&gt;.

²³ “Law Ministry to propose repeal of Section 157(d)”, online: The Public House < http://www.publichouse.sg&gt;.

²⁴ Mohammed Liton, supra note 8at [120].

²⁵Ibid. at [121].

²⁶ Rape Shield Laws are laws which prescribe or guide when and how previous sexual conduct could be used by a defendant at trial. For more elaborate discussion, see supra note 21.

²⁷ Under s. 90 of the Penal Code, consent is vitiated if it was given under (1) fear of injury or wrongful restraint to the person consenting or to some other person, (2) a misconception of fact that the accused knows or has reason to believe that the consent was given under the above circumstances, (3) an unsoundness of mind, mental incapacity or intoxication.

²⁸C K Thakker & M C Thakker, Ratanlal & Dhirajlal’s Law of Crimes: A Commentary on the Indian Penal Code 1860, 26th ed, vol 2, (New Delhi: Bharat Law House, 2007) at 2061.

²⁹ Public Prosecutor v. Iryan bin Abdul Karim, [2010] 2 S.L.R. 15.

³⁰ Supra note 25.

³¹ Supra note 26 at [123].

³² Jonathan Herring, “Does Yes mean Yes? The Criminal Law and Mistaken Consent to Sexual Activity” [2002] 22 Sing. L. Rev. 182.

³³ Ibid.

³⁴ Supra note 26.

³⁵ Supra note 1, s 354(A).

³⁶ Supra note 1, s509.

³⁷ Mavis Toh, “More women say: Touch me, Pay me”, The Straits Times (28 December 2009) online: Diva <http://www.divaasia.com/article/6701&gt;.

³⁸ [2000] SGHC 157 [Siew].

³⁹ Ibid at [44].

Mr Kan Ting Chiu. Image credit: Supreme Court Singapore Annual Report 2011

By Vincent Ho, Teo Ho Hong, Hoang Linh Trang and Stacey Lopez

Innocence Project Members Hoang Linh Trang and Johnson Teo had the opportunity to interview former judge of the Supreme Court of Singapore, Mr Kan Ting Chiu.

Mr Kan has had a long and illustrious legal career in both the private and public sector. In his judicial capacity, Mr Kan presided over many high profile cases, some of which continue to be studied by law students today. He eventually retired from the bench in 2011.

During the interview, Mr Kan spoke candidly about a wide variety of topics, including his experience with the criminal justice system, his concerns regarding young lawyers and law students, and his life after retirement.

THE CRIMINAL JUSTICE SYSTEM IN SINGAPORE

In your many years on the bench, you have presided over many landmark cases, some involving the death penalty. Can you tell us more about some of your more memorable cases?

It’s a tough question. Over the years I have dealt with many cases. Some of them stand out for different reasons. If I have to name one, I think it would be the one which involved a Vietnamese migrant from Australia who faced a capital charge for drug-trafficking (PP v Nguyen Tuong Van [2004] 2 SLR 328; [2004] SGHC 54).

The accused and his brother incurred debts, which they needed to repay. The accused tried to raise funds by agreeing to carry drugs from Cambodia to Australia. He was arrested whilst he was in transit in Singapore with the drugs strapped to his body. There was considerable interest and sympathy for the accused from the Australian public because there is no capital punishment in Australia, and so there was concern over the mandatory death sentence the accused faced.  The case was covered by the Australian press, which generally did not approve of the mandatory death penalty for drug trafficking. Australian journalists were in court during the trial. The case and the trial system came under scrutiny; but in the end, it came out alright. There was an acceptance of the death sentence that was imposed. Since then, there have been changes to our law with regard to mandatory death sentences in drug cases.

Do you think the modifications to the mandatory death penalty in drug trafficking cases is a positive development?

(Editor’s Note: The modifications referred to are as follows: Under the amendments to the Misuse of Drugs Act that was passed by Parliament on 14^th November 2012, the death penalty will no longer be mandatory for drug trafficking under two specific conditions.[1])

The mandatory death sentence is a very serious matter. There will be cases where the judge may feel that the sentence is harsh on the facts, but the sentence has to be imposed as it is mandatory. Personally, yes. I think the removal of the mandatory death penalty in some circumstances is a positive development. The decision whether to take away a life as punishment for a crime should always be done with great caution, taking into account all the relevant facts of the case.

Which type of criminal cases do you find most difficult to deal with?

Murder cases are difficult, drug cases tend to be less difficult because the accused is normally caught with the drugs, and there are the various statutory presumptions which can operate against them. In murder cases, elements of fact such as knowledge and intention have to be proved. Murder trials therefore tend to be more concerned with such issues, and it can be difficult to make findings on them when severe consequences may follow.

In the Singapore context, dissenting judgments are not as common as compared to some other jurisdictions. What do you think is the value of dissenting judgments in a case?

It very much depends on the quality of the dissenting judgments. But of course there is some intrinsic value in it. Firstly, when dissenting judgments are made, it shows that there is openness in the system. Secondly, dissenting judgments allow the readers to consider the different points of view. A dissenting view may in time become the accepted law. When there is no dissenting judgment, prima facie, the judges are in agreement on the decision, and there is nothing wrong with that. But when a judge does not agree with the conclusion of the majority, he should be able to state and explain that. Besides that, a judge may take a position on a particular issue different from the position from the majority, but agree with the ultimate decision. In recent years, there have been cases where a judge states his view on a particular point without dissenting with the judgment. And I think this is good; it shows openness in the system, and gumption on the part of that judge.

THE TRIAL PROCESS

How do judges assess the credibility of individuals?

There are certain tests, such as whether the person is glib or whether the person is seeking only to give evidence which he thinks is going to be advantageous to his cause. An honest witness will be more open and agree with things that may not be beneficial to his case. You can sense the “clever” ones after a while, and you are more cautious when you review their evidence. However, I do not think many judges will say that they have mastered the art of assessing an individual’s credibility as this is a very difficult skill.

Should the courts readily draw an adverse inference against someone who refuses to testify during trial?

No, not readily. One should be slow to draw an adverse inference unless there is a reason to do so. An accused person has a right under the law to remain silent, albeit at the risk that the court may draw an adverse inference against him for doing that. The adverse inference is not set down as the default position. When the court has a power or discretion that should not be used readily without reason because there may be good grounds for an accused to decline to take the stand. Having said that, there can be situations where the adverse inference should be drawn, for example where the accused puts his case to the prosecution witnesses, but declines to give evidence when his defence is called.

In cases where the accused has some form of mental disability, both the prosecution and the defence will provide expert witnesses. They often disagree. How do judges choose which opinion to favour?

With patience and interest a judge can acquire knowledge on such issues from the cases and the expert witnesses he comes across. This accumulated knowledge will enable him to read the opinions critically and seek clarification before he makes his finding.  Always remember that an expert has to justify his opinion.

Judges also look at the other relevant evidence. Is the expert opinion supported by or consistent with the prevailing authority? Is an opinion based on acceptable facts?  If the expert gives an opinion on the basis that the accused had told him that he had a mental blackout, it is useful to look at the other statements which he had made to check that he had mentioned it before. If those statements detail everything that happened without any breaks, the judge can make a finding of fact on whether there was a blackout, and deal with the opinion accordingly. It is useful to question the experts. How many times has the expert witness seen the accused? Did he check with the accused’s family members? Did he check whether the accused has a medical history? All these questions are relevant in determining if an opinion is to be accepted.

TECHNOLOGY AND THE LAW

When you were a lawyer, you once argued against the use of a “kitchen blender” for forensic investigation. Can you tell us more?

Yes. The case is Public Prosecutor v Ang Soon Huat [1990] SLR 915, [1990] 2 SLR (R) 246. It was a drug case, and I acted as counsel for the defendant. He was charged with trafficking 18.77g of diamorphine (15g and above attracts the capital punishment). The accused admitted that he was trafficking, and the only issue was the quantity of the drugs trafficked (and whether the death penalty would apply).

During the preliminary inquiry, I obtained the laboratory analyses of the drugs from the HSA. I was very fortunate when the Registrar gave me the funds to consult an expert from England. The documents should show what kind of equipment was used in analysing the substance. The drugs were stated to have been ground down and homogenised before they were analysed, but there was no information on the equipment used for that process. When we asked, they said they used “a kitchen blender”.

We picked up on that. Ordinary kitchen blenders are not good enough for the purpose (of analysing the drugs). For sensitive scientific analysis, you need to be mindful of the effect of electrical charge and ions, and the motor must be properly insulated, otherwise that may affect the distribution of the substance that is being blended. For such work, you need to use laboratory blenders which are designed for that purpose. A kitchen blender does not cut it. In that case, the unacceptably high variation in the test results from different samples of the blended drugs therefore added to the doubts on the accuracy of the analysis process.

In the end, the trial judges reduced the quantity of the drugs to below 15g, and the accused escaped the gallows. After that case, a thorough review and revision of the analysis process was carried out. The kitchen blender was replaced.

Do you think it is important to advocate the use of technology, while still adopting a vigilant and questioning attitude regarding scientific procedures in the law?

Yes. Mistakes happen when things are done behind closed doors. In Ang Soon Huat’s case, there was a protocol on how the analysis should be done. It was written down but was not circulated to the technicians, and was passed on by word of mouth, which the court found to be unsatisfactory. Of course technology must be used; but the technology and methodology used have to be scientifically sound and reliable – bad science is a dangerous thing. For that reason, the technology and methodology should be disclosed to the fullest extent possible so that they can be scrutinized by others and any issues can be brought out and dealt with.

The police have begun a pilot project to use body cameras during patrol. Do you think that the use of cameras should be extended to police interviews of people accused of crimes?

Yes, Many of the disputes regarding the recording process can dealt with, so why not, if taping can be done conveniently. If the taking of statements is taped, and that is made available to accused persons and their counsel, groundless allegations of inducement, threat and promise will not be made. On the other hand, if an accused is tired or has difficulty in understanding questions put to him, the tape will show that.

THE LAW AND MORALITY

Do you think that sometimes it is important for the judges to inject their own sense of morality when deciding cases?

I think it is inevitable, even if it may not be expressed or apparent from the judgments themselves. The law cannot be administered in a way that is entirely removed from one’s sense of morality, although one should not decide (purely) on the basis of morality and ignore the law – both can be applied together. If you ask an experienced practitioner, he will tell you that different judges will have their individual attitudes, and that is fine because judges are not expected to be clones. There will be a spectrum of attitudes present on the bench.

Do issues of causation involve value judgements?

Yes. There is almost always a factual element in any issue of causation, and a finding on the facts would involve value judgments. A judge has to use the best of his knowledge and experience to arrive at a finding on the facts in question and then decide on the issue of causation with reference to the finding.

ADVICE FOR YOUNG LAWYERS

You have been closely involved with the legal education in Singapore. What words of wisdom do you want to impart to young lawyers?

 Enjoy your course! Some law students nowadays can be so intent on getting good grades that they do not take the time to engage in other enriching social and extra-curricular activities when they have the time and opportunity to do that. You are only here for 4-5 years – you might as well make good use of your time in law school!

In your role as a judge, what type of advocates do you respect the most? What are some of the good/bad practices that new advocates should adopt/avoid in order to become better officers of the court?

I respect lawyers who have a strong sense of responsibility. Lawyers should conduct themselves as members of the legal profession, and when they appear in court, as officers of the Court. They must be equally conscious of their responsibilities to their clients. They must strive to uphold the integrity of the legal profession while looking after the interests of their clients.

RETIREMENT

Having retired from the bench in 2011, how have you been spending your time?

I have been helping out at the Singapore Institute of Legal Education to review the syllabus and the conduct of courses for Parts A and B of the Singapore Bar Examinations. Perhaps, when your time comes, you may find me sitting at the back of your class observing and making comments.

I have completed a course in arbitration. I have also completed the mediators’ course, and act as a mediator when my services are required. I have also just taken on an appointment as a neutral evaluator.

I also sit on some disciplinary tribunals under the Legal Profession Act.

REFLECTIONS

What do you think is the most rewarding part of your long career in the legal profession?

Having a role in the development of the content and practice of the law – to be able help to refine the law and make it clearer and to improve standards in the courts, and when matters go wrong, to set them right.

Vincent Ho, Teo Ho Hong, Hoang Linh Trang and Stacey Lopez are students at the National University of Singapore (Law), and members of the Innocence Project (Singapore).

[1] For more information, please refer to the Ministry of Home Affairs press release, which can be accessed from here. The Innocence Project (Singapore) has also previously written an article on these changes, which can be accessed from here.

Mr. V. K. Rajah
Image Credit: Supreme Court Annual Report 2008

By Michael Hor and Jaryl Lim

From heading a law office, to being on the Bench and then assuming office as Attorney-General of Singapore on June 25, Mr V. K. Rajah is expected to alter the legal landscape.

A Legal Grand Slam

There can be no doubt that Singapore’s legal world is in for an exciting ride with the accession of Mr Vijaya Kumar Rajah SC (universally abbreviated to V K Rajah) to the crucially important position of Attorney-General. Like retired Chief Justice Chan Sek Keong and current Chief Justice Sundaresh Menon, Mr Rajah completes the grand slam, from a Managing Partner and Senior Counsel in a mega-firm, to the heights of judicial office as a Judge of Appeal, and now the Attorney-General of Singapore.

Wherever Mr Rajah has trodden, he has made tidal waves in the legal landscape. Under the leadership of Mr Rajah and his successors, Rajah and Tan (founded by his redoubtable father T T Rajah which started out with only 6 lawyers) has flourished and is now one of the largest firms in the country with over 300 lawyers under its wing. In his judicial capacity, he co-chaired the Committee for Family Justice and the Singapore International Commercial Court Committee with Senior Minister of State for Law Ms Indranee Rajah SC, making key recommendations to benefit the family justice system and the legal services sector respectively.

His tour of duty was also marked by a series of judgements – aptly described by the Minister for Law as “ground-breaking” – which have collectively changed the tone of criminal justice in Singapore. While the Attorney-General is not a judge, Mr Rajah’s legacy of inspiring judgements reveals the kind of fundamental criminal justice values he holds and is likely to continue to hold as the Attorney-General. An entire volume can be written about this, but two examples will suffice to give a flavour of the person.

The Presumption of Innocence

The idea that everyone is presumed innocent until proven guilty in a court of law is seldom thought to require further explanation, yet its implications in some contexts is not so straightforward. For instance, if an accused is acquitted on the grounds that there was insufficient evidence to secure a conviction, is he to be presumed innocent? Or can he still be considered, in some sense, factually guilty (but not legally guilty) of the crime?

In 2008, these questions were raised in response to the Attorney-General’s Chambers’ (AGC) comments on an on-going appeal then against the acquittal of a school teacher charged with outrage of modesty. At that time, an AGC spokesperson wrote in The Straits Times Forum Page that an acquittal determined only legal guilt, and so an accused could well have been factually, or actually, guilty – only that there was insufficient evidence to secure a conviction. That unfortunately gave the impression to some people that the AGC, and therefore the Government, might treat an acquitted person to be as good as guilty for purposes other than obtaining a conviction in court.

This, Justice Rajah could not leave unclarified. In a rare but timely judicial entry into a public debate, he drafted a paragraph to his judgement in the case concerned to put to rest any such misapprehension:

It is not helpful, therefore, for suggestions to be subsequently raised about the accused’s “factual guilt” once he has been acquitted. To do so would be to undermine the court’s finding of not guilty and would also stand the presumption of innocence on its head, replacing it with an insidious and open-ended suspicion of guilt that an accused person would be hard-pressed to ever shed … [T]he decision of guilt or innocence is constitutionally for the court and the court alone to make …[T]here is no room for second guessing or nice distinctions; there is only one meaning [to an acquittal] and that is that it has not been established in the eyes of the law that the accused has committed the offence with which he has been charged.

In his characteristically eloquent style, Justice Rajah put the judicial foot down. As far as the Government and officialdom is concerned, an acquitted person is always, for all purposes, to be treated as innocent of the crime charged. It is reassuring that the Attorney-General is one with such a clear and principled stand.

The Prosecution’s Duty and Obligations

A commitment to the presumption of innocence is, on a broader canvas, a commitment to the fairness of criminal proceedings. Given the inequality of resources between a government-sponsored prosecution and a privately-funded defence, it is trite that the prosecution usually bears a heavier obligation than a defence counsel, such as having to prove its case beyond reasonable doubt. In 2011, another sensational case – that of the Kadar brothers – came before then Judge of Appeal V K Rajah (as he had since become), and he took the opportunity to clarify some of the obligations that the prosecution owes to the court.

Firstly, Justice Rajah emphasised that the overarching duty of the prosecution is to assist the court to determine the truth, such that only the guilty are convicted. In his judgement, he emphasised that the prosecution must always discharge its duties conscientiously and ethically in the administration of justice. It is not, as often believed to be, to zealously secure a conviction at all costs.

In line with this quest to determine the truth, Justice Rajah and the Court of Appeal further declared that it was time to recognise a duty on the part of the prosecution to disclose relevant material, even those which it did not intend to use at trial, to the accused. Prior to this appeal, the lack of a comprehensive obligation on the part of the prosecution to disclose, before the trial, material relevant to guilt or innocence had been a bugbear of the criminal bar for a long time. Although there were local judicial precedents which seemed to support the position that no such duty existed, Justice of Appeal Rajah and his brethren surveyed the position of several respected jurisdictions around the world, only to discover that they had all recognised a similar duty on the part of the prosecution, even if the material disclosed is unhelpful or even detrimental to the prosecution’s case.

The Court of Appeal, in a judgement delivered by Justice of Appeal Rajah, cast aside past practice in favour of the “elementary right of every defendant to a fair trial” and the “rules of natural justice” which demanded that the prosecution must have a duty to disclose anything which may be of use to the accused. It is again heartening to note that the Attorney-General always puts the dictates of justice and fairness above the inclinations of bureaucracy and precedent.

Public Confidence in the Principled Administration of Justice

In a separate judgement, then Justice Rajah once said:

Public confidence in the principled administration of justice must inevitably be the paramount consideration.

This judicial pronouncement nicely sums up the criminal justice philosophy of the Attorney-General. There are two essential elements in it which must be carefully nurtured. The first is public confidence. A criminal justice system which does not command the confidence and respect of the public is one that has failed in its principal mission – the preservation of the safety and security of everyone within the jurisdiction.

But, there is another fundamental element: the administration of justice must also be principled. The criminal justice system must not only be effective and efficient; it must also be fair and seen to be so. Most of the time there is no conflict between these elements, but occasionally (though rarely, we hope), the two may seem to clash. When such a scenario arises, Mr Rajah (then Justice Rajah) once aptly noted, “[T]he ends cannot be inevitably and invariably held to justify the means. To do so can only result in indelible scars to the administration and perception of justice.” We have every confidence that he will be well placed to make the difficult calls.

We await with heightened anticipation to see what Mr Rajah will do as an Attorney-General. His moral fibre, coupled with his strong desire for fairness and justice, indeed augurs well for the efficacy and credibility of Singapore’s criminal justice system.

Professor Michael Hor formerly taught at the National University of Singapore Faculty of Law, where he was also an advisor to the Innocence Project (Singapore) at the Faculty. He was recently appointed the Dean of the Faculty of Law at The University of Hong Kong. Jaryl Lim is a Year 2 law student at the National University of Singapore, and is currently the Head of the Innocence Project (Singapore).

This article was first published in The Straits Times Opinion Page on 1 August 2014.

By Charis Wong, Jaryl Lim Zhi Wei, Mok Ho Fai and Valerie Lew Jia Min.

At the recent Criminal Law Conference 2014, Law Minister K. Shanmugam laid out four fundamental principles that anchor Singapore’s criminal justice system, key among them being that “offenders must be given the opportunity to be rehabilitated and reintegrated into society”. The swath of legislative changes in recent years, in particular, the wider range of sentencing options available today, places a greater emphasis on meaningful reform to the individual rather than being merely punitive in nature.

However, rehabilitative options still retain their retributive element to the extent that they restrict the offender’s liberty as a penance for his offence. Ideally, rehabilitative options should thus seek to balance the twin principles of proportionality (as encapsulated in the proverb, “let the punishment fit the crime”) and rehabilitation.

Nonetheless, a rehabilitative sentence may potentially result in a manifestly disproportionate sentence if, at the time of his appeal, the offender had already partially served an imprisonment term, but was subsequently ordered to serve a further rehabilitative sentence (e.g. reformative training). This scenario calls into question a balance between the principles of proportionality and rehabilitation. The courts are therefore faced with a quandary: in scenarios where these two principles are in conflict, which one should prevail?

An examination of Public Prosecutor v Saiful Rizam bin Assim and other appeals [1]

In Saiful Rizam, the three respondents pleaded guilty to multiple charges for theft of various items in the Case Property Store of Ang Mo Kio Police Division while they were serving their National Service with the Singapore Police Force. All of the respondents were between the ages of 19 and 20 at the time of conviction.

The trial judge held that in light of the various aggravating factors (including “wanton and repeated” stealing, and the fact that the respondents abused their position as officers in uniform), the main sentencing considerations should be that of retribution and deterrence rather than rehabilitation. He accordingly sentenced the respondents to seven months, 18 months and 14 months of imprisonment respectively. By the time of the appeal, the respondents had served between  four and five months of their imprisonment term.

On appeal, Chao Hick Tin JA rightly pointed out that:

• The main sentencing consideration should have been rehabilitation instead [2] given their age, the fact that their crimes were “not particularly heinous” and the fact that they were free from antecedents; and
• Unlike the trial judge’s opinion, reformative training would not have been “crushing” (despite the minimum period of 18 months) because the main object of the programme is to rehabilitate the young offenders.[3]

Chao JA therefore noted that if he were in the trial judge’s position, he would have sentenced the respondents to reformative training at the time of conviction.

However, the case turned on the fact that by the time of the appeal, the respondents had already partially served their sentence. Given this consideration, Chao JA reasoned that imposing reformative training at the time of the appeal would have been grossly disproportionate[4]. The learned judge noted that reformative training, like imprisonment, deprive offenders of their liberty because these programmes involve structured regimentation and incarceration. It thus follows that imposing reformative training on top of an imprisonment would amount to “double punishment” for the same offence, which Chao JA declined to do. 

We now proceed to look at the issues examined in the case.

The interaction between proportionality and rehabilitation 

It bears mention that compared to the punitive aspect of imprisonment, its reformative aspect is a relatively novel and modern concept. As Chao JA sombrely noted, the need for rehabilitation of offenders “has yet to receive much attention in our jurisprudence”.[5] Nonetheless, the overriding concern for the courts at the end of the day should, as rightly pointed out by Chao JA in Saiful Rizam [6], be doing justice rather than reforming the offender.

Ordinarily, when a court is to decide whether an imprisonment term should be substituted with reformative training, the fact that a sentencing tariff is shorter than the prescribed minimum rehabilitation period (e.g. a minimum of 18 months for reformative training) is an irrelevant consideration because the dominant sentencing objective in such a case is to reform the accused, and not to fit the crime[7]. Proportionality therefore only comes into play where, as in Saiful Rizam, the offender has partially served an imprisonment term pending an appeal. Proportionality then demands, in place of rehabilitation, that an offender should only receive a punishment that is in line with that which the offence he had committed deserves, and no more.[8]

Possible injustice in rehabilitative sentences

In such a scenario, the courts must be cognisant of the fact that reformative training is still a form of incarceration, and not a “soft option”. The young offender would be deprived of his or her freedom of movement for a substantial period – a minimum of 18 months and a maximum of 36 months.[9] The period is not shortened even if the motivation behind the incarceration is in the person’s well-being[10]. Indeed, reformative training is considered commensurate to imprisonment insofar as both deprive the offenders of their liberty[11]. Thus, to sentence an offender to a significant imprisonment term and then for reformative training would be disproportionate (or, as Chao JA rightly notes, a “double punishment”).

Whether such a sentence is disproportionate is nonetheless a matter of degree. The determinative factor is whether the offenders, as in Saiful Rizam, have served a significant portion of their imprisonment terms. This is again a matter for the courts to decide with due regard to the precise factual matrix of each case. More importantly, unlike the 1^st situation where an offender has not served his sentence, a court here should now approach its sentencing discretion holistically with a pre-dominant view that the offender should receive a sentence befitting his crime rather than to reform him (i.e. that “proportionality is key”[12]).

This raises a further question: should the courts not backdate the reformative training to the time of sentencing? The case of Nur Azilah Bte Ithnin v Public Prosecutor[13] suggests otherwise. Backdating would, in effect, shorten the period of training and undermine the effectiveness of the programme. Therefore, in that case, the court ordered the reformative sentence to commence forthwith notwithstanding the fact that the appellant had spent some time in remand. On the face of it, this case seems to resemble the “double punishment” scenario which the court in Saiful Rizam wanted to avoid.

Imposing a “double punishment” prejudices against an offender – if not in form, than at least in substance. In effect, the offender would have been languishing under an undeserving, and often harsher, punishment pending the outcome of his appeal. The courts, as Saiful Rizam demonstrates, are generally unwilling to re-sentence an offender in such cases, especially if the new sentence unduly deprives him further of his liberty. Such disproportionate sentences should thus be assiduously avoided as with any other miscarriage of justice.

Avoiding a “double punishment” scenario: A stay of execution

Chao JA offered several suggestions to prevent further occurrences of this “double punishment” scenario, chief of which included the granting of a stay of execution pending an appeal [herein referred to as “stay applications”] under s. 383(1) of the CPC[14]. This suggestion was echoed by Chief Justice Sundaresh Menon in the recent case of Public Prosecutor v Adith s/o Sarvotham [15]. In Adith, the Chief Justice held that the trial judge’s refusal to grant the Prosecution’s stay application prejudiced the Prosecution’s appeal to substitute probation with reformative training for the offender. The Chief Justice then took the opportunity to re-examine the principles that govern stay applications:

“the court hearing a stay application should primarily be concerned with ensuring that the Prosecution’s appeal is not prejudiced while weighing this against the comparative prejudice, if any, that is suffered by the convicted person in having to await the outcome of the appeal before commencing his sentence.” [16] (Emphasis added)

While we have spoken at length about the prejudice to the appeal, the authors are also of the view that the latter prejudice is not insignificant: A pending appeal judgment is not unlike a sword of Damocles dangling over the accused’s head. It is therefore up to the court to make the weighing decision in ensuring no side is unfairly prejudiced.

Hence, Menon CJ’s pronouncement is timely because a court, in granting or refusing a stay application, is now obliged to ensure that no side, the Prosecution or the accused, is unfairly prejudiced. Moving forward, a court now needs to provide reasons for denying a stay application (unlike the trial judge in Adith) in view of the serious injustice that can potentially result from such a denial. Under s 383(1) of the CPC, parties are also allowed to appeal against a trial judge’s decision to deny such an application.

To assist the courts, Menon CJ laid down the factors to be considered in granting a stay application:

• the interests of a fair and just prosecution, including the interest of ensuring that the Prosecution’s appeal against the sentence is not prejudiced;

• any comparative prejudice to the convicted person in having to await the outcome of the appeal before serving his sentence;

• the nature and gravity of the offence;

• the length of the term of imprisonment or probation in comparison with the length of time which it is likely to take for the appeal to be heard; and

• whether any possible prejudice to the convicted person can be ameliorated through simple measures such as requesting that the appeal be heard on an urgent basis.[17]

A stay application, though largely procedural in nature, is an effective solution to protect the accused from substantial injustice for it ensures finality in an accused’s sentence before he serves it proper. While the Chief Justice suggests the abovementioned factors in the context of a Prosecution’s appeal, the authors suggest that the same factors should equally apply to an accused’s appeal against sentence.

Another possible solution: Community-based sentences

In line with the courts’ insistence on reformative training as a “hard” option, community-based sentencing[18] (introduced during the 2010 amendment to the CPC) may also be an appropriate alternative sentencing option that the courts can explore. These comparatively more lenient sentencing options avoid the propensity for “double punishment” whilst holistically reforming the offender through counselling, rehabilitation or community work in order to combat recidivism[19] in recent years[20].

However, the application of community-based sentencing is confined only to limited circumstances[21]. Egregious offenders are more likely to face the full spectrum of retribution, deterrence and protection of the public in the court’s sentencing considerations. The tension between safeguarding the public interests and reforming the offender thus continues to exist, and rightly so.

Conclusion

The cases of Saiful Rizam and Adith illustrate that any unresolved tension between the principles of proportionality and rehabilitation trickles down into an improper sentence that an offender must serve. This is a disservice both to offenders and the criminal justice system as a whole.

It is also no coincidence that these cases have come one after another within the span of 4 months. Their timings illustrate the realistic possibility of injustice arising from “double punishment”, and will only continue to rise with the proliferation of rehabilitative sentences. Menon CJ’s opportune clarification is therefore warmly welcomed in a time when the Singapore courts have to carefully toe the thin line between refitting the crime and reforming the criminal.

Charis Wong, Jaryl Lim Zhi Wei, Mok Ho Fai and Valerie Lew Jia Min are students at the National University of Singapore (Law), and members of the Innocence Project (Singapore).

[1] [2014] SGHC 12 (“Saiful Rizam”).

[2] Ibid at [17] to [18].

[3] Ibid at [24] to [26].

[4] Ibid at [43].

[5] Ibid at [31].

[6] Ibid at [41]

[7] Ibid at [24] – [25].

[8] Ibid at [29].

[9] Criminal Procedure Code (Reformative Training) Regulations 2010 (S 802/2010 Sing), reg 3.

[10] Sentencing Criminals, Molly Cheang [1974] 16 MLR 204.

[11] Supra note 1 at [43].

[12] Ibid at [43].

[13] [2010] SGHC 210.

[14] Supra note 1 at [44].

[15] [2014] SGHC 103 (“Adith”)

[16] Ibid at [31]

[17] Ibid at [32]

[18] These sentences include: (i) Mandatory Treatment Order (s 339 of the CPC); (ii) Day Reporting Order (s 341 of the CPC); (iii) Community Work Order (s 344 of the CPC); and (iv) Community Service Order (s 346 of the CPC).

[19] See Parliamentary Debates Singapore: Official Report, vol 87 (18 May 2010), column 407.

[20] See generally Bala Reddy, “Community-Based Alternatives in Sentencing” (2009) at the UNAFEI 141^st International Senior Seminar, Visiting Experts’ Papers.

[21] In particular, s 377 of the CPC for a list of provisos before a court can impose community-based sentences.

By Yeoh Jean Ann, Alastair Simon Chetty, Jolin Chen and Toh Ming Min.

Introduction

Image Credit: Ben Sutherland. Header: Emmanuel Huybrechts. Both licensed under CC BY 3.0 US

In his speech at the Criminal Law Conference 2014, Minister for Law, Mr. K. Shanmugam, stated that his ministry is working on formalising a framework of negotiations between Prosecution and Defence to encourage early case resolution. Mr. Shanmugam described this as ‘plea bargaining’ in plain language, and highlighted the benefits of formalising such a system: transparency in the pre-trial litigation process, better-informed accused persons, and the optimisation of resources.[1]

In anticipation of this formalised framework, this article will examine the rationale behind plea bargaining in criminal justice systems, and its role in Singapore’s legal context. It will also explore the merits and demerits of the American plea bargaining system, discuss the inherent plea bargaining element in the current Singaporean system, and finally, analyse how this vision of a formalised system can work to balance striving towards judicial efficiency with the all-important notions of fairness and justice.

Roles of Plea Bargaining in Criminal Justice Systems

Plea Bargaining in Singapore

The central policy tension that surrounds the issue of plea bargaining is ensuring that judicial efficiency does not come at the cost of arriving at a fair and just outcome.

The courts in Singapore have recognised these competing policy considerations. Former Chief Justice Yong Pung How took the view that plea bargaining secures a lighter sentence for the accused and, at the same time, ensures that less of the court’s time and resources are wasted: PP v Knight Glenn Jeyasingam.[2] Conversely, in direct response to Knight Glenn, former Chief Justice Chan Sek Keong emphasised that the goal to save judicial time must nevertheless not supersede the public interest that offenders should be convicted and punished for their offences: Law Society of Singapore v Tan Guat Neo Phyllis.[3]

Apart fom these policy considerations, another real concern is that of preventing “cracked” trials, where accused persons come on for trial only to plead guilty or withdraw their cases. In January 2010, 43% of the 102 cases fixed for trial were “cracked”.[4] Such a situation results in the waste of trial dates for other cases waiting to be tried. In light of this situation, plea bargaining becomes a plausible mechanism that the courts can employ in a bid to curb this problem.[5]

Plea Bargaining in America

The conservation of judicial resources is prioritised in America, given that the legal landscape is characterized by litigiousness.[6] Undoubtedly, plea bargaining plays a major role in the American criminal justice system. An influx of offenders going to trial can easily flood the criminal justice system and result in judicial inefficiency.

In American plea bargaining, the accused is faced with a charge at arraignment; this is typically the maximum charge or punishment that the accused will be held to if he or she goes to trial. [7] The process begins when the prosecution or the accused makes an offer of plea; the prosecutors will present the defendant with an opportunity to plead guilty to a lesser charge, or to the original charge with less than the maximum sentence.[8]  When both parties accept the agreement, negotiations will begin. Both the prosecution and the defence can negotiate on issues of fact, the charges or the sentence – these are known as fact-bargaining, charge-bargaining and sentence-bargaining respectively.

Plea offers are made at the prosecutor’s own discretion, and this power is largely unreviewable by judges.[9] The prosecutor may even decide not to offer any concession in exchange for a guilty plea. This leaves the defence counsel in a difficult position, where he has to evaluate the risks of trial on his own. In a scenario where the prosecution will not offer any leniency in exchange for a guilty plea, the defence counsel will usually encourage the accused to plead guilty outside of the plea agreement.

The vast discretion enjoyed by the prosecution makes the American plea bargaining process an intriguing one. Judges have little to do with the process, and the negotiations are kept private until they are concluded. Only then will the judge step in to approve the plea agreement and deliver the sentence. The judge rarely rebuts the guilty plea, and rarely imposes a higher sentence than the one agreed in the plea agreement.

Dangers of the American Plea Bargaining System

As we have already noted, plea bargaining plays an essential role in the American Justice System, and has undoubtedly helped to conserve judicial resources in the United States. In 2010, 91% of felons charged in U.S. district court were disposed by guilty plea, and plea bargains no doubt account for a significant portion of this statistic.[10] However, notwithstanding the conservation of judicial resources that plea bargaining brings about, there are inherent dangers that come with such a system.

It has been suggested that defendants – even those with strong cases and good chances of acquittal at trial – are choosing to plead guilty so as to avoid sentencing risks they would otherwise face if they lose at trial.[11] Many defendants, therefore, unsurprisingly plead guilty in response to “an offer that cannot be refused”.

While encouraging cooperation from defendants is one objective of plea bargaining, a cloud of artificiality can easily loom over this mechanism when prosecutorial powers are exploited to the extent that plea bargaining becomes a coercive tactic to extract pleas of guilt.

This danger is particularly pronounced when prosecutors essentially offer defendants a Hobson’s choice: plead guilty and get a lighter sentence, or claim trial and face the possibility of a drastically harsher sentence. The threat of higher sentences undeniably places enormous pressure on defendants to plead guilty. In 2012, the average sentence of federal drug offenders convicted after trial was three times higher (16 years) than that received after a guilty plea (5 years and 4 months).[12]  This has led to the criticism that plea bargaining is based on a culture of “extortionate relationships”, which favours economic, cost-benefit decisions over examining the actual culpability of the accused.[13]

In essence, although plea bargaining is not inherently iniquitous, it nevertheless avails prosecutors to exercise their prosecutorial discretion unreasonably, and the potential discrepancies in sentencing outcomes can infringe on the accused’s rights.

Singapore’s Current Position on Plea Bargaining

The American plea bargaining process is vastly different from that of Singapore’s. Thus far, the issue of plea bargaining has not been expressly or formally decided upon in Singapore’s legal landscape. Instead, Singapore’s early case resolution initiative comes in the form of the recent Criminal Case Resolution (CCR) framework.

Criminal Case Resolution (CCR) Programme[14]

As a means to tackle the issue of “cracked” trials, the CCR programme was first piloted by the Subordinate Courts in end-2009 and fully implemented with effect from October 2011 by way of Registrar’s Circular No 4 of 2011. It aims to provide a neutral forum for parties to explore the possibility of early resolution of criminal cases. Driven on a purely voluntary basis where both the defence and prosecution must be in agreement to the process, CCR is generally considered only for cases where the accused is represented by counsel, and has a reasonable prospect of early resolution. Even if the CCR fails, the process would still assist parties in narrowing down the material triable issues and enable the trial to proceed in a more focused and efficient manner.

In general, a case would already have gone through the Criminal Case Management Scheme (CCMS) between the Attorney-General’s Chambers and defence counsel, and may be referred for CCR if it remained unresolved after CCMS.

A senior and experienced District Judge facilitates each CCR session. His role is more facilitative than evaluative, and he will not give an indicative assessment of the merits of the case though he may comment on specific aspects of evidence and possible legal issues. Where the case remains unresolved, any notes by the CCR Judge will not be included in the case file and will not be accessible to the Trial Judge. The CCR Judge will also not be assigned to hear the case as Trial Judge in order to ensure that the matter is not prejudged.[15]

The programme has seen some success. In March 2012, a total of 119 cases had gone through the CCR programme, with 75 cases having been resolved through it since the pilot in 2009. As a result, a total of 139 hearing days had been saved.[16]

The Inherent Element of Plea Bargaining in CCR

The issue of plea bargaining is not extensively explored in the CCR framework. Nevertheless, the CCR is very much akin to a bargaining process between the defence and prosecution that is facilitated by the CCR Judge who acts as a neutral mediator. In the event that the accused decides to plead guilty, the CCR Judge may, with the consent of the parties, proceed to take the plea and pass the sentence. Alternatively, the plea may be dealt with by another Judge.

The negotiations and discussions that happen during the forum will undoubtedly involve the examination of the merits of a guilty plea. Therein lies the issue of plea bargaining and its potentially formalised place in Singapore’s legal landscape.

Moving Ahead: A “Formalised Framework of Negotiations”

As stated earlier, the Ministry of Law has been working on a formalised framework of plea bargaining negotiations. This is one of the key initiatives that the Ministry is working toward as part of their vision to build ‘A Trusted Legal System; A Trusted Singapore’, which envisages the law being implemented objectively, consistently, and transparently.[17] Minister for Law, Mr. K Shanmugam, has highlighted that formalising plea bargaining is important to promote the “expeditious fair and sensible resolution of a case”.[18] A tension is seen again between the practical need for efficiency and the desire for the accused to have a fair trial and receive an appropriate sentence. Here, we anticipate how some elements of such a formalised plea bargaining framework may be implemented.

1. Statutory guidelines

The Minister for Law has indicated that this formalized framework will likely be incorporated in the Criminal Procedure Code.[19] The framework should involve guidelines as to the exact procedure and workings of the plea bargaining process. These will promote transparency, clarity and equity. In such a way, decisions cannot be made arbitrarily, and the traditional “under-the-table” nature of plea bargains with its more ambiguous shady character will be replaced by clarity and transparency. When the process is made clear with statutory guidelines, the accused also benefits as he can make a more well-informed decision.

2. Restricting the ambit of plea bargaining

There may be a need to restrict the ambit of plea bargaining such that certain offences are not covered by this provision. Such a need arises due to concerns that plea bargaining dilutes retributivist principles since the ‘bargained’ punishment sometimes ends up lower than the accused’s moral culpability. Therefore plea bargaining may result in punishments that are not commensurate with the defendant’s culpability. Such a result would be particularly abhorrent in especially cruel or brutal cases that affect the vulnerable in society.

Secondly, it is possible that where there is a possibility of being sentenced to death, defendants are “more likely to plead guilty to their original charge, yet no more likely to plead guilty in general — suggesting that the threat of capital punishment encourages defendants to accept deals that they otherwise would have rejected.”[20] Thus there is a very real concern that defendants facing a death sentence may decide not to claim trial out of fear of receiving a worse punishment, which makes it easier for the prosecution to secure a guilty plea. It has also been suggested that the death penalty is a major tool available to the prosecutor and that the prosecutors can use it as leverage to coerce or induce a defendant to forgo their right to trial.[21] Restricting plea bargaining from this area would thus go towards protecting the accused as well.

Such is the case in the Criminal Law (Amendment) Act, 2005 in India, which amended the Indian Code of Criminal Procedure. A newly inserted chapter titled “Plea Bargaining” includes guidelines for mutually satisfactory disposition of cases by means of plea bargaining. S265A(1)(a) provides that plea bargaining does not apply to “offences for which the punishment of death or of imprisonment for life or of imprisonment for a term exceeding seven years has been provided under the law for the time being in force”, and S265A(1)(b) provides that plea bargaining does not apply where the “offence affects the socio-economic condition of the country or has been committed against a woman, or a child below the age of fourteen years.”

Adopting the substantive points from the Indian Code of Criminal Procedure, we too could have some form of boundary to the application of plea bargaining as necessary. We could restrict the application of these provisions to cases where the maximum sentence is life imprisonment or the death sentence, and to cases that are excessively morally reprehensible such as rape and sexual offences involving minors. In such cases, the need for justice and a fair punitive outcome far outweigh the benefits of expedient case resolution.

3. Making records available

The sessions should be recorded and included in the case file after the trial has ended. The records could perhaps be made available to a restricted group of people such as the legal fraternity. Another issue is whether these records should be admissible as evidence during trial, or whether there should be a plea negotiation privilege.

Accessibility

The availability of records to people beyond the judiciary will ensure greater transparency as the participants and facilitators of the plea bargaining system can be held accountable, and third parties can use these records to understand the rationale behind the failure or success of their plea bargaining attempts. For instance, the Sakharam Bandekar case in Mumbai, India, saw the first accused requesting lesser punishment in return for his confession through plea bargaining.[22] The Indian Central Bureau of Investigation (“CBI”) rejected his plea, on the grounds that the accused “[faced] serious corruption charges and plea bargaining should not be allowed in such cases.” The CBI also said that an offence like “[corruption] is a serious disease like cancer. It is so severe that it maligns the quality of the country, leading to disastrous consequences. Plea bargaining may please everyone except the distant victims and the silent society.”[23] Availability of records will ensure that accused persons with a charge of a similar nature will not be unfairly entitled to a desirable plea bargain, while also improving accountability to society by ensuring that plea bargaining will only be used when justifiable. In essence, records will serve as a check on the plea bargaining system.

We acknowledge that confidentiality issues may restrict the availability of these records to the public, and suggest that as a compromise, these records could be made available to a limited class of persons, or made available subject to the discretion of the court. Such accessibility of records and its resultant transparency is of utmost importance. When the Ministry was just beginning to implement a formal plea bargaining system, Sundaresh Menon CJ, as the then Attorney General, stressed the importance of fairness, visibility and transparency.[24] Openness would ensure the protection of the accused and ultimately the end goal was to build up public confidence in the administration of criminal justice. These considerations are still relevant today and are echoed by the ministry’s current vision for an open, honest legal system.[25]

Admissibility

Another issue is whether these records should be admissible as evidence in Court. As to whether plea negotiations should be privileged, the law in Singapore has been clarified by Phyllis Tan where former Chief Justice Chan Sek Keong overruled the holding in Knight Glenn which created such a privilege. In Knight Glenn, the former Chief Justice Yong Pung How held that on a purposive interpretation of S23 of the Evidence Act, representations made in plea bargaining were privileged and inadmissible in evidence. Chan CJ rightly disagreed with this, holding that S23 should not be extended to create a plea negotiation privilege since its purpose is to encourage settlements in civil cases and not in criminal cases.

In an article that pre-dated Phyllis Tan, Professor Michael Hor similarly expounded on the fundamental differences between privilege in civil and criminal cases. The private nature of civil cases where society is for the most part unaffected is unlike any kind of ‘settlement’ in criminal proceedings. In criminal law where there is a “very public dimension – the moral condemnation of the offender commensurate with fault”, plea bargaining should be regarded with care. Hence in criminal cases, where the welfare of society at large is at stake, the sanctity of the fact-finding process is important and it is arguable that privileges should not be allowed to easily disturb this process. There is, however, much more to be said about a plea negotiation privilege that is not within the ambit of this article; and we will assert nothing more than that one key purpose of both accessibility and admissibility of these plea negotiation records lies in promoting the transparency of the formalised system.

4. The facilitative role of the judge

In the current CCR model, a judge facilitates the negotiations between the defence and prosecution. We believe that this feature should be retained because the facilitative Judge is an important element of formalised plea bargaining. The Hobson’s choice often observed in American plea bargaining will be less likely to occur in such a situation where an experienced Judge facilitates the Prosecution’s decisions. This protects the accused from prosecutorial pressure to plead guilty.

5. Safeguards to protect the accused person

A neutral party such as a court official or mediator should have an opportunity to speak to the accused privately, without either the prosecution or defence lawyers present, in order to ascertain if he has had the freedom to choose between pleading guilty and pleading not guilty without any operative pressure. This suggestion also echoes the 2005 amendments to the Indian Code of Criminal Procedure. In S265B(4), the court would examine the accused in camera to satisfy itself that the accused had filed the plea bargain application voluntarily. We agree that this provision is a sound safeguard. It not only minimizes any potential of coercion or involuntariness that might arise during the plea bargain process, but also enables the effective ascertainment of the accused’s exercise of free will.

The presence of the facilitating judge would naturally be a safeguard against incompetent legal preparation, ensuring adequate legal representation on the part of both prosecution and defense, ameliorating the concerns in other jurisdictions as regards competent counsel during the plea bargaining process.[26] Importantly, plea bargaining does not eliminate the need for the professional adversarial process – for example, a defense counsel would hardly be able to arrive at an equitable plea bargain if they were unaware of what sentence their client would likely receive if the case proceeded to trial. In this regard, plea bargaining merely shifts the focus and expression of the adversarial process,[27] and the existence of the facilitating judge ensuring competent legal preparation and representation of both prosecutor and defence is necessary for a fair and efficient plea bargaining system. Where an accused is unrepresented, this safeguard is all the more important in assessing that the accused was not coerced into making an unfair bargain.[28]

It is crucial to our criminal justice system that we ascertain that the accused indeed has the freedom to choose to plead guilty. Otherwise, the pressure to plead guilty could lead to wrongful convictions. When he was previously Judge of Appeal, current Attorney-General V K Rajah, observed that “pressure on an accused to plead guilty may come from a number of sources: the court, defence counsel or even other sources.”: Yunani bin Abdul Hamid v Public Prosecutor[29]. He held that “there would be a serious injustice if the pressure faced by an offender to plead guilty are such that the offender did not genuinely have the freedom to choose between pleading guilty and pleading not guilty.” This was in the context of granting the accused a criminal revision. Therefore, before even getting to the stage of a wrongful conviction and a criminal revision, the relevant safeguards should be put in place such as to ensure that the accused is not pressured into pleading guilty.

The formalisation of plea bargaining and the resultant transparency ensures that this provision will likely not be abused as checks can be put in place to prevent prosecutorial powers from being used in a coercive fashion. In Yunani, it was observed that “the trauma that the initiation of a prosecution will cause to an accused and those close to him is palpably real and often severe”[30], the concern being in relation to those who may be innocent. Therefore formalised plea bargaining will further decrease the chances of wrongful convictions within our criminal justice system.

Conclusion

Despite the potential dangers of plea bargaining as seen in the American system, we are optimistic about the role that plea bargaining can play in Singapore because of the inherent safeguards within a formalised scheme. We look forward to seeing how the relevant authorities will work to formalise plea bargaining so as to aid the court in its pursuit of efficiency whilst upholding the fundamental value of fairness.

Yeoh Jean Ann, Alastair Simon Chetty, Jolin Chen and Toh Ming Min are students at the National University of Singapore (Law), and members of the Innocence Project (Singapore).

[1] Speech by Minister of Foreign Affairs and Law, K Shanmugam, at the Criminal Law Conference 2014 (16 January 2014)

[2] [1999] SGHC 91 (“Knight Glenn”) at [46].

[3] [2007] SGHC 207 (“Phyllis Tan”) at [122].

[4] Chan Sek Keong, “Access to Quality Justice For All”, keynote address at the Subordinate Courts Workplan 2010 (26 February 2010), at [12].

[5] Ibid.

[6] Statement by Judiciary Chairman Bob Goodlatte, “Excessive Litigation’s Impact on America’s Global Competitiveness”, (March 2013) online: United States House of Representatives, Committee on the Judiciary.<http://judiciary.house.gov/_files/news/2013/Statement%20Constitution%2003052013.html>

[7] US, Bureau of Justice Assistance; U.S. Department of Justice, “Plea and Charge Bargaining: Research Summary”, (2011) at pg 1.

[8] Ibid.

[9] Human Rights Watch, “An Offer You Can’t Refuse: How US Federal Prosecutors Force Drug Defendants to Plead Guilty” (2013) at pg 3.

[10] US, Department of Justice; Bureau of Justice Statistics, Federal Justice Statistics, 2010. (2013) at pg 19.

[11] Supra note 9 at pg 82.

[12] Supra note 9 at pg 2.

[13] The Judicial Role in Criminal Proceedings. (Sean Doran & John Jackson eds) (Oxford: Hart Publishing, 2000), cited in See Kee Oon, “Criminal Case Resolution” (2013) Asian JM 76 at para 12.

[14]Subordinate Courts of Singapore, “SubCourts news” (June 2012) online: The State Courts of Singapore <https://app.subcourts.gov.sg/Data/Files/File/InforBooklet_Brochures/Newsletter_2012Jun.pdf>.

[15] See Kee Oon, “Criminal Case Resolution” (2013) Asian JM 76 at para 17.

[16] Supra note 15 at pg 9.

[17]Singapore Parliamentary Debates, President’s Address (Ministry of Law), Vol 92 (16 May 2014).

[18] Supra note 1.

[19] Supra note 17

[20] Ilyana Kuziemko, Does the Threat of the Death Penalty Affect Plea Bargaining in Murder Cases? Evidence from New York’s 1995 Reinstatement of Capital Punishment.  Am Law Econ Rev, Vol 8(1) (Spring 2006)  at 140

[21] Susan Ehrhard, Plea Bargaining and the Death Penalty: An Exploratory Study, The Justice System Journal, Vol. 29, Number 3 (2008)

[22] Muriel Avita Fernandes, Law and Social Change: Plea Bargaining; Its Relevance In India, Govind Ramnath Kare College of Law Library: online < http://www.grkarelawlibrary.yolasite.com/resources/FM-Jul14-LSC-Muriel.pdf>

[23] Ibid

[24] Mr Sundaresh Menon on formalising plea bargaining, see Opening of the Legal Year 2012 Speech (6 January 2012).

[25] Supra note 17.

[26] Gregory J. Hobbs Jr., Judicial Supervision over California Plea Bargaining: Regulating the Trade, 59 Cal. L. Rev. 962 (1971) at 989.

[27] Ibid at 990.

[28]A policy concern pointed out by Ms Sylvia Lim, see Singapore Parliamentary Debates, Official Report, Vol 92 (28 May 2014).

[29] [2008] SGHC 58 (“Yunani”).

[30] Ibid at [68].

In September 2013, a student team from the Innocence Project (Singapore) took on the case of Abdul ^[1], who had been sentenced to imprisonment and caning for unlawful consumption of drugs. The team’s efforts played an integral role in overturning Abdul’s conviction and subsequent discharge amounting to acquittal.

The Innocence Project (Singapore) is a student-led initiative that seeks to provide recourse to individuals who believe they have been wrongfully convicted of crimes. It is a collaborative effort between the National University of Singapore Criminal Justice Club, The Law Society of Singapore and the Association of Criminal Lawyers of Singapore. Members of the Innocence Project (Singapore) review and investigate claims of wrongful convictions, which include conducting interviews with applicants and witnesses, and seeking out evidence to corroborate the testimonies obtained.

In this 3-part special article, we take a look at what happened, and talk to the Innocence Project (Singapore) team behind the investigation as well as the Pro Bono lawyer who took up the case. We begin with a brief background of the case.

Innocence Project (Singapore) helps obtain acquittal for accused person

Abdul was charged with consuming morphine without authorization in 2011. Traces of morphine were found in his urine after he was arrested at a police road block. He was convicted and sentenced on 2013 to 7 years 6 months’ imprisonment and 6 strokes for unlawful consumption of drugs.

While Abdul had several drug related convictions in the past, he maintained that he was not guilty of the unlawful consumption charge for which he was convicted and sentenced.

Assistance from the Innocence Project (Singapore), the Criminal Legal Aid Scheme (CLAS), and a pro bono lawyer led to his successful acquittal.

Claims of Innocence

Abdul maintained that he was not guilty of the offence and that traces of morphine in his urine were due to his consumption of medicine with codeine.

Abdul also claimed that his former trial lawyer did not act on his instructions and that he was told to keep silent when his defence was called (without being informed of the consequences of doing so).

Abdul maintained that, at all times, he wanted to dispute the charge and not to remain silent.  He therefore believed that he had been wrongly convicted.

An Innocence Project (Singapore) student team, comprising Victor Leong, Ryan Nicholas Hong, Will Jude Vimal Raj and Allison Tan was assigned to look into the Abdul’s claims of innocence.

The Innocence Project (Singapore) team conducted an interview with Abdul inside Changi Prisons and pored through the relevant material such as the court transcripts and leads provided by Abdul.

Based on their research, the Innocence Project (Singapore) team recommended the Pro Bono Services Officer in CLAS to consider that a lawyer be assigned to follow up on the matter.

Righting an injustice

Mr Mervyn Cheong, from Eugene Thuraisingam, was assigned to act for Abdul in his appeal.

Mr Cheong argued that the accused suffered serious injustice because of the trial lawyer’s conduct and it warranted a re-trial. Fresh additional evidence was also obtained which showed that Abdul was prescribed medication with codeine around the time he was alleged to have unlawfully consumed controlled drugs.

The Prosecution did not object to the application for a re-trial in the appeal.  After the appeal was heard, the High Court set aside the conviction and sentence, and granted an order for a re-trial.

Abdul had been in remand since the date of his conviction.  He was unable to find anyone who could afford to put up bail for him.

After the court ordered a retrial, the Prosecution relooked the circumstances of the charge and also engaged in extensive discussions with Mr Cheong. Eventually, after almost 3 years of being in remand, the court, on the Prosecution’s application, ordered a discharge amounting to an acquittal.

This is the first part of a three-part article. The next part is available here, and the final part is available here. Click “Follow” at the bottom-right corner of your screen to receive email updates whenever we have new posts!

[1] The accused’s name has been changed to protect his identity.

In September 2013, a student team from the Innocence Project (Singapore) took on the case of Abdul, who had been sentenced to imprisonment and caning for unlawful consumption of drugs. The team’s efforts played an integral role in overturning Abdul’s conviction and subsequent discharge amounting to acquittal.

Every application that the Innocence Project (Singapore) receives is handled by one of our student teams, which conducts a comprehensive investigation including applicant interviews, on-the-ground investigation and legal research. Today, the Investigation team in charge of Abdul’s case, comprising Victor Leong, Ryan Nicholas Hong, Will Jude Vimal Raj and Allison Tan, shares their journey with Innocence Project (Singapore).

1. Why did you join the Innocence Project (Singapore)?

As law students, there are very few things we can do which can create a tangible difference or to truly effect positive change beyond our books and research opportunities. This project provides an extremely useful avenue in helping accused individuals seek legal aid. Clichéd as it sounds, we were hoping to make a difference.

2. What were your initial thoughts upon receiving your case?

At first glance, it seemed like the facts merited re-examination. For some of us, this was the first case that we undertook. We were therefore – naturally – excited and also slightly apprehensive.

3. Could you tell us more about your interview with the applicant?

In this particular case, the applicant only spoke Malay. This was difficult for us, given that our previous experiences with interviews were in English. But it has to be appreciated that this is a very real problem for many accused persons who require assistance via IP.

In our case, a translator was necessary. This also presented problems which we didn’t expect. What we mean is, the meaning of certain words may be lost in translation, or that we might not be able to fully capture the applicant’s true expressions in light of our limited understanding of the Malay language. We also couldn’t stop him to clarify midway, because the answers were translated in blocks to us.

Fortunately, the problem wasn’t compounded as the applicant was willing to talk about his case, and he was certain about what he wanted to say. While he couldn’t furnish us with satisfactory answers at times, this was natural because it’s precisely why we need to follow up with investigations.

4. How did you go about conducting research and collecting the requisite evidence for the case?

We divided the work into tracing the relevant parties on the one hand, and going through the court transcripts on the other hand. The research was not a problem given that we had many resources at hand – an advantage of being a student.

On tracing the relevant parties, we were very fortunate that the parties were readily identifiable – the lawyer, the hospital, the clinic. These were solid bases to start from. Unfortunately we didn’t have the contact information of one of the more “personal” witnesses – the accused’s girlfriend.

We obtained the court transcripts through CLAS.

5. What were some of the challenges faced while working on this case, and how were they overcome?

The biggest challenge was definitely following up on the evidence, because there are limits to what we can do as students, especially contacting organizations such as hospitals and clinics.

Another problem is that it’s quite normal that the applicant couldn’t provide us with the contact details of certain key persons – or if the contacts were provided, they may be outdated. This is certainly not out of the ordinary, but again highlights the limits on what we can do as students.

6. What were some takeaways from this case? What were your thoughts upon finding out that the applicant’s conviction was successfully overturned?

It is extremely encouraging that as law students, we have the opportunity and ability to change others’ lives for the better. The success of this case is certainly a testament that our efforts can lead to results.

Truth be told, given that IP in Singapore is very new, we were just doing our best and hoping to make a difference – that explains our reactions of utter shock when we found out the outcome. Now we truly know that it can be done. We are also really thankful for the lawyer who decided to take up this case, because it couldn’t have been done without him.

At the end of the day, what was truly meaningful to us was the fact that the outcome wasn’t monetary (which it tends to be for some other projects). Rather, the result had a direct impact on the applicant’s life in general, and this was truly eye-opening.

7. Could you share other memorable experiences during your time in the Innocence Project (Singapore)?

Visiting the applicants in Changi prison made the project come alive and made it more than an ‘academic’ experience. Although you sometimes see the beneficiaries of other projects, it is very much different when you actually see them in prison. Furthermore, conducting the interview in a prison setting also reminded us of the urgency and importance of the project.

Following up on the cases on the members’ own accord is also definitely different from other projects. Therefore, it follows that IP is much more ‘open ended’ in this aspect. Furthermore, as our efforts have a direct impact on the applicant, this project certainly causes us to have a certain emotional attachment to every assigned case.

8. Do you think that the Innocence Project (Singapore) has had an impact on your general outlook on Singapore’s criminal justice system?

In general, we feel not much has changed in the sense that there’s still continued faith in the system. Nevertheless, there’s much more awareness of the human element involved. This is especially so given the need to balance expediency with the practical impossibility of saying with certainty that someone is guilty.

At the same time, it is prudent to note that limitations of technology in one period may lead to changed outcomes in another. In the context of this project, developments that relate to DNA evidence – in particular – is significant, and we think an issue relating to this might come up in the future.

9. Finally, what words of advice do you have for new members of the Innocence Project (Singapore)?

Please don’t pre-judge the case based on what you think. Always be meticulous in following up with every bit of available evidence and then make a reasoned conclusion.

Innocence Project members at a seminar on the 24th of February 2014.

This is the second part of a three-part article. The first part is available here, and the final part is available here. Click “Follow” at the bottom-right corner of your screen to receive email updates whenever we have new posts!

The interviewers, Alastair Simon Chetty, Benedict Teong, Chua Ting Fang and Elias Arun are students at the National University of Singapore (Law), and members of the Innocence Project (Singapore).

In September 2013, a student team from the Innocence Project (Singapore) took on the case of Abdul[1], who had been sentenced to imprisonment and caning for unlawful consumption of drugs. The team’s efforts played an integral role in overturning Abdul’s conviction and subsequent discharge amounting to acquittal.

None of this would be possible without the help of the Pro Bono lawyer who took up the case and ultimately worked with the Prosecutors to secure an acquittal. Today we talk with Mr Mervyn Cheong, from Eugene Thuraisingam, to find out more about him, his pro bono experiences and working with the Innocence Project (Singapore).

Today’s article marks the last of this three part series. For more updates from us, please hit the follow button located at the bottom right corner of your screen. We are also delighted to reveal that this case will be covered on a Channel 5 TV series called Verdict, which will be broadcast on 20 Jan 2015 at 10.30pm. 

1. What piqued your interest in criminal law?

When I was in law school, doing criminal law wasn’t a very glamourous or much talked about career path after graduation that students were particularly interested in. I came out to practise during this period and also the phrase “crime does not pay” truly has a literal meaning more often than not in criminal practice in terms of fee-paying work.

I did not come out into practice wanting immediately to do criminal law.  I was working with Eugene [Thuraisingam] at my previous firm.  He had been doing quite a lot of white-collar crime work and he was the one who introduced me to criminal work. Eugene is now the sole proprietor of the firm [that I am at]. My first taste of criminal law was helping Eugene with a pro bono case at our previous firm together, which involved a young man who was charged for housebreaking.  The case and the satisfaction gained from helping that young man left a deep impression on me and it piqued my interest in criminal work. Thereafter, I took up my own Criminal Legal Aid Scheme (CLAS) cases and also started doing criminal work as an area of my practice.

Also, from a professional development point of view, doing pro bono work is good for young lawyers who want to gain practical advocacy experience in litigation. For one, I know a young lawyer at a big firm who is now currently conducting his own criminal trial under a CLAS assignment. But for the fact that he volunteered under CLAS, I suspect he may have had to wait for another five to six years of practise before being able to conduct his own trial. A second aspect is that if one does too much commercial litigation and it’s always all about money, sometimes you would want to do something different like saving someone’s liberty to a certain extent especially someone who may not have the benefit of legal representation but for CLAS. The latter especially is what has kept me going so far.

2. Is it true the odds are usually stacked against defence counsels?

Yes, it is still stacked, although less so nowadays. In my experience, there are at least two areas where the odds are stacked against defence counsels. First, from the perspective of the law, there are several cases where the legal presumptions work against the accused persons – such as those found in the Misuse of Drugs Act. Recently, I have taken on a case involving an offence under the Moneylenders Act. I learnt that if one finds out that his ATM card had been used by an unauthorised moneylender, there is a presumption that he assisted with the unauthorised money lending business. In an instance like this, the odds are stacked against the defence because the burden is on the accused to prove on a balance of probabilities that he did not know therefore the offence is not established. In these situations, even though the burden of proof is on the prosecution to prove beyond a reasonable doubt that the offence was made out, practically, because of the presumptions, it becomes the case that the defence has to rebut the presumptions and prove his innocence.

The other area is in case preparation, but less so these days as there is now the Criminal Case Disclosure Conference (CCDC) process, introduced under the CPC (Criminal Procedure Code) 2010. It is a process where the prosecution will inform the defence what the prosecution’s case is, provide a list of witnesses and exhibits and statements by the accused person that they would rely on. That is the point in time in which we (defence counsels) will know what the accused has told the police in his statements. Thereafter, we file the defence case, and the prosecution then provides a supplementary bundle which consists of any or all of the accused’s statements which the prosecution is not intending to rely on to establish the case. However what is still unresolved is that statements given to the police by the prosecution witnesses are not disclosed to us. Hence, most of the time, we will not know how consistent the prosecution witness is in terms of what they had told the enforcement officers and what they actually testify in court. The difficulty lies in this: if the victim has been inconsistent in his statements, how are we – as the defence counsels – to challenge the credibility of the victim (which ultimately also affects the issue of whether our client is guilty or whether he should be exculpated of the offence)? 

3. To a layperson, a defence counsel is often seen as one who helps people who are actually guilty to get away scot-free. What do you have to say about that?

Yes, that appears to be quite a common sentiment. But to this, I think if defence counsels go in with the mindset that they want to get acquittal, they will get jaded really fast. To me, often, it is really about determining the appropriate offence, and then finding the appropriate and proportionate sentence that should follow from his actions. I mean, a simple theft offence comprises aberrated forms like theft simpliciter, theft in dwelling, theft by employee, snatch theft… At the end of the day, it is about finding the suitable form of the offence for the accused’s actions. I guess the layperson’s sentiment can be attributed to TV shows, but in reality, defence counsels do not go in to twist the facts or even give a different slant of the facts. Most times, it is just about finding an angle that gives a balanced view of what actually happened, and placing the right emphasis on mitigating factors, if any.

MERVYN’S EXPERIENCE WITH THE INNOCENCE PROJECT (SINGAPORE)

4. You took up the case that IP had recommended to CLAS as meritorious. Could you tell us more about this case?

I still remember when I first read the report that the Innocence Project (Singapore) team had prepared. At that point, I already knew this case on drug consumption would be a tricky one; besides maintaining his innocence, the Applicant raised the issue of how his former lawyer had told him to keep silent throughout the trial and he was allegedly not advised as to the consequence of doing so, and also made allegations about the authorities that recorded his statements when he was in remand. Over and above these tricky issues, there was the issue of trying to get evidence in support of the Applicant’s defence which he said had not yet been obtained when I took on the matter.

5. Given these difficulties, what ultimately motivated you to take up this case?

CLAS rarely takes up appeal cases. What’s more, this involved a drug consumption charge which made things even more interesting as conviction is almost a given when it comes to cases of this nature. Ultimately, I felt there must have been something extraordinary about the case, so I replied CLAS to take it up.

6. Were there any challenges that you faced along the way?

The case was complex not just because of the legal issues, but also because it involved allegations against the Applicant’s former lawyer as I mentioned earlier and this tends to complicate things even more.

There was also the matter of obtaining the evidence that the Applicant had claimed could support his defence. While it was not easy to obtain the medical evidence at first, I think it eventually served as the turning point in the case when we finally managed to do so. One of the hospitals wrote back to say that the Applicant had, on two or three occasions (one of which was very close to the accused’s time of arrest), actually been prescribed medicine with codeine (which would metabolize into morphine) in it. Even at his first trial, analysts from the Health Sciences Authority (HAS) could not rule out that the traces of morphine in his urine may have indeed come from medication that contained codeine.

Even then, that was just the first hurdle to cross. I knew the real challenge was the very request of a retrial at his appeal – for the Applicant to have his chance to tell the court his side of the story.  We successfully did so on appeal and his conviction was set aside for a re-trial to take place. In fact, the retrial had already been set, but the prosecution then applied to withdraw the charge a few days before the re-trial was scheduled to take place. This was the entire rollercoaster ride.

7. Did you expect the final result?

I didn’t expect the discharge because I thought the case was at such an advanced stage, and the Applicant had already been in remand for close to three years. Furthermore, I thought the accused would want to have his day in court to explain his situation and allow him to feel vindicated.

8. The Innocence Project (Singapore) acts as a complement to the existing criminal justice system, and aims to exonerate people who were wrongfully convicted. Do you think such an initiative is relevant in Singapore?

Yes it is, given that there is one successful case so far! I believe there is value in this project. Especially in criminal cases, the courts appear to be more prepared to revisit deserving cases – either in terms of developments in the law, or where new evidence that can exculpate the accused surfaces.

9. Some people believe this project might undermine our justice system. Do you agree?

No, I don’t think so. There will always be allegations that the work done by the enforcement officers was not properly managed. So, if there isn’t the Innocence Project, or if people are absolutely unconcerned, then you will never be able to know when cases of wrongful conviction truly happen.

All you need is, perhaps, for there to be one successful instance of a wrongful conviction out of a hundred, and the project will be of value. Without such an initiative, this one instance will just go undetected. So, I don’t think it undermines our justice system – if anything, people will at least know that there is a safety net.

10. Would you say that the experience with the Innocence Project (Singapore) had been different from your other pro bono experiences?

Yes, definitely. I saw how the students tried to conduct their own investigation in terms of finding out what actually happened. In terms of research, the focus of the issues were the same issues as those I had picked out, and some of the cases they found were also the same cases which I eventually relied on.

MERVYN’S PRO BONO EXPERIENCE

11. Were there similar projects like the Innocence Project (Singapore) during your time in NUS?

No, though some students were actually keen to do pro bono work then, the scene was not as active and robust as what you have in school today.

12. At the same time, the law schools in Singapore have recently implemented a mandatory pro bono. Do you think this is necessary?

If making pro bono work mandatory increases awareness, and at least stimulates people to think and experience it, and then decide if they like it or not, then I think it’s good. For me, I didn’t even think of doing criminal work but for my first experience helping Eugene on a pro bono case. So if it weren’t mandatory in that sense (because I had to report my work to him as one of the litigation directors in my previous firm), I wouldn’t have known if I liked it or not because I wouldn’t even have thought of giving it a try.

13. Do you think there are enough lawyers doing pro bono work right now?

Actually, CLAS has quite a big pool of registered lawyers. But  what we need is more of them to be active. I have also heard of some pro bono initiatives that are lacking in volunteers. However, from my personal experience, at the moment, I’ve seen about 80-85% of e-mail requests sent out by CLAS being taken up by lawyers. So, while the legal community is still actively encouraged to be more involved in pro bono work, I generally think the pro bono scene today is not in any dire situation.  But of course, as you would have read in the news, there are plans to expand and enhance CLAS.  Once these plans are rolled out, all the pro bono initiatives could definitely have more active lawyers and even students on board.

14. Finally, would you encourage fresh law graduates to get their hands wet with pro bono work, or should they focus on their craft the first foundational years in practice?

I guess it depends on what they are really interested to do. If one wants to do corporate work, then there may be little value in doing criminal pro bono work. At the same time, there are pro bono projects where lawyers could, for example, help charitable organisations with transactional work such as setting up their trust funds. So there are actually various pro bono opportunities for lawyers who are keen in being active even if they are not keen to do litigation work.

I do feel that criminal pro bono work is a good place to start if you are thinking of doing litigation and wants to hone your advocacy skills. I say this because you would learn so much when you are the lawyer making the submissions before the court – your situational awareness would almost surely go into overdrive! Also, pro bono work allows you to experience a very different sense of achievement and satisfaction, especially when the family comes up to you and thanks you – that’s when you truly feel you’ve been given a pat on the back.

With that said, there have been recent developments in the pro bono scene for CLAS and it is exciting times for young lawyers who are interested to practise criminal law.  As mentioned earlier, there are plans to expand the scope of CLAS; the expansion is not only in terms of the types of cases covered, but also the number of deserving applicants.  These plans are also supported by the Government, both financially and in spirit, as you would have also read in the news.  There are also now talks of possibly creating a prestigious CLAS fellowship scheme for young lawyers who are keen to do criminal work on a full-time basis specifically for underprivileged accused persons who otherwise have no means to get legal representation.  There are also talks of possibly providing exclusive advocacy training for lawyers who actively volunteer with CLAS.  Opportunities are definitely abound for young lawyers who are interested and once the expansion plans are rolled out, there will be a need for more lawyers to come on board and be active, and I will strongly urge young lawyers, particularly fresh graduates, to seize the opportunities offered then.

This is the final part of a three-part article. The first part is available here, and the second part here. Click “Follow” at the bottom-right corner of your screen to receive email updates whenever we have new posts!

Alastair Simon Chetty, Benedict Teong, Chua Ting Fang and Elias Arun are students at the National University of Singapore (Law), and members of the Innocence Project (Singapore).

[1] The accused’s name has been changed to protect his identity.

The National University of Singapore Student Achievement Awards (SAA) is an annual event organised by the Office of Student Affairs (OSA). SAA aims to recognize exception individuals and student groups who have made noteworthy contributions to student life in the university.

We’d like to express our sincerest gratitude to the OSA and the NUS Faculty of Law for their continued support. This award serves as an encouragement for us to work even harder to safeguard against wrongful convictions in Singapore.

From left to right: Our Faculty Advisor, Associate Professor Chan Wing Cheong, and our core team, Chan Jia Sheng, Jaryl Lim, Mok Ho Fai and Khine Khine Zin

By Tan Shi Hui Elena, Loo Tze Ting Dorothy Ann, Lim Min Li Amanda and Tan Pei Wei.

Section 261 of the Criminal Procedure Code gives the Courts the ability to draw adverse inferences from an accused’s failure to mention any fact that he may later rely on for his defence, after he has either been charged or informed that he may be prosecuted for an offence.^[1] Such inferences are then “capable of amounting to… corroboration of any evidence given against the accused”.

The prejudicial effect of s 261 stems from the drawing of an adverse inference when the accused person is unfamiliar with the law. To achieve a more holistic understanding of s 261, this article will explore the rationale behind its enactment and analyse the impediments to fairness that have eventuated as a result of its implementation. It is humbly submitted that s 261 is in need of reform in order to better achieve transparency and clarify the lay misconception of what s 261 entails.

Background to s 261

The merits of s 261 were articulated by then-Minister of Law Mr E W Barker in the Criminal Procedure Code (Amendment) Bill of 1975. Mr Barker stated that the non-existence of s 261 would lead to hardened criminals taking advantage of their right to remain silent and to impede police investigations.” In his view, it would have the negative impact of allowing criminals who purposefully hamper police investigations to be eventually acquitted on formalistic grounds. This wariness against procedural abuse by accused persons was mirrored by Yong Pung How CJ (as he then was) in Yap Giau Beng Terence v Public Prosecutor,^[2] where the learned judge held that the “whole purpose of [s 261] is to compel the accused to outline the main aspects of his defence immediately upon being charged so as to guard against the accused raising defences at trial which are merely afterthoughts.”

However, it is noteworthy that s 261 has its detractors. Specifically, Mr. N Govindasamy hotly contested the implementation of s 261 in the 1975 Criminal Procedure Code (Amendment) Bill. He pointed out that the provision effectively forces the accused to “make up his mind immediately what line of defence he is going to take during trial” and to “inform the interrogator the facts he is going to rely on for his defence … before he has an opportunity to consult legal counsel”. This concern is exacerbated by the relative power imbalance between officers of the law and accused persons, which will only be more pronounced when according these officers the ability to use an accused’s lack of understanding against him.

The Limited Role of Reasonableness

Beyond the relative power imbalance between investigating officers and accused persons, the standard of reasonableness which the Courts use to determine whether adverse inferences should be drawn from an accused person’s silence regarding his defence is also limited in protecting the position of legally ignorant accused persons.

Including an element of reasonableness allows the Court to consider the totality of circumstances that may impact the accused’s ability to exercise discretion as to the disclosure of his defence. This is prima facie intended to be a purposeful step towards mitigating substantive injustice, as was evinced in cases like Kwek Seow Hock v Public Prosecutor^[3] and Lim Lye Huat Benny v Public Prosecutor^[4] where the courts considered how cautioned statements were recorded “at an unearthly time where the accused had been too hungry and tired to think of his defence”,^[5] and how “the accused was suffering from withdrawal symptoms and probably had not rested or been fed”^[6] to conclude that the accused’s silence should not be construed against him given his impaired decision-making abilities.

However, the effectiveness of the reasonableness test in achieving substantive justice is premised upon the inherently false presumption that accused persons, even under circumstances in which their judgments are not impaired, are able to determine what facts would later be material to their defence. Although it is easy for a judge to discern the potential importance of facts in relation to a defence, the tendency to weigh with golden scales what an accused person should have done must be avoided, particularly since the average person lacks the legal knowledge necessary to inform their judgment as to which facts would be considered ‘material’ and hence must be disclosed.

Furthermore, the assumption that defences raised by the accused at trial are less legitimate because of a prior failure to disclose them in cautioned statements is not a fair one to make. Such a presumption fails to take into account how accused persons could be afraid of disclosing material facts under the circumstances of interrogation for fear of exacerbating a high-pressure situation or inducing the imposition of additional liability, which they may consider more detrimental than a potentially adverse inference being drawn later in court. Even if the presumption holds and an accused’s silence indicates a measure of falsity in the defence, it would be in the interests of fair procedure that the prosecution should definitively prove the illegitimacy of such a defence, rather than to accord the courts such latitude in dismissing it. Even in a judicial system which prioritises crime control, emphasis should not merely be that guilty persons be convicted, but also that they be convicted only after being found, in a definitive way, to be guilty.^[7]

Undue Extension to s 22

Admittedly, safeguards against procedural abuse by the police do exist. There are express provisions which provide that statements taken where the requisite notice is not served or read to the accused are inadmissible in court as evidence.^[8] However, this procedural safeguard is inconsistently applied, as evidenced in several local cases.  In Tsang Yuk Chung v Public Prosecutor,^[9] the defence counsel argued that the investigating officer who recorded the accused’s statement had not complied with the requirements of s 23, in that he had not explained the charge and the statutorily prescribed warning^[10] to the appellant. Though the court found that the officer had complied with the provisions on the facts, it went on to elaborate that non-compliance would not have rendered the statement inadmissible in any case. Rather, non-compliance would only factor into the court’s consideration of what adverse inferences, if any, should be drawn from the failure of the accused to mention key facts. In essence, this pronouncement renders the safeguard offered by the provision ineffective, given that situations may arise wherein a statement could be admissible and adverse inferences drawn from an accused’s silence in such a statement, despite the accused’s lack of awareness of such ramifications. In Muhammad bin Kadar v Public Prosecutor,^[11] the court similarly held that “breach of [criminal] procedure has no effect on admissibility unless it also engages the voluntariness rule”, evincing arguably undue flexibility towards the admissibility of evidence at trial.

Furthermore, the requirement of a warning is rendered ineffectual given that the Court of Appeal has extended the court’s right to draw adverse inferences to pre-charge questioning under s 22 of the Criminal Procedure Code^[12] as well.

This was seen in the cases of Lim Lye Huat Benny and Kwek Seow Hock where the defences that the appellants raised at trial were rejected partly because the trial judges drew adverse inferences against them for omitting their defences in statements given under s 22 (i.e. during pre-charge questioning). This conflicts with the explicit stipulation in s 261 that an adverse inference should only be drawn where the accused fails to mention a matter relevant to his defence “on being charged with an offence, or informed… that he may be prosecuted for an offence.” These cases demonstrate how the police might evade having to warn an accused person of the consequences of his silence as required under s 23(1), simply by questioning the accused under s 22, which does not require the provision of such a warning. This practice was not only condoned by the Court of Appeal in the aforementioned cases; it was also explicitly made legal in 2010 when s 22 was amended to indicate its applicability even after “that person [being questioned] or anyone else is charged with an offence in connection with the case.”

These decisions could perhaps be understood as cases where the accused had already been sufficiently warned of the consequences of their silence since the taking of their cautioned statements preceded those made under s 22.^[13] However, it is submitted that fresh warnings should be given to the accused before any statement is made to ensure that the accused person is made cognizant of possible ramifications of remaining silent. It is undoubtedly unfair to draw an adverse inference against the accused without warning him of the consequences;^[14] indeed, one of the arguments for s 23 in 1976 was that the accused would not be “unfairly [prejudiced]… he will be informed of the consequences of remaining silent and therefore the risks”^[15]. Although statements may possibly be taken in such short succession that repeating the warning contained in s 23(1) would be redundant, requiring the issuance of a fresh warning would be far better than attempting the inherently arbitrary exercise of delimiting how much time can transpire between statements before requiring a fresh warning.

Whilst it may have been that the appellants in the two aforementioned cases had already been charged, the Court of Appeal in Kwek Seow Hock did not restrict the drawing of an adverse inference as such. Instead, they held that an adverse inference can be drawn as long as the accused did not adduce evidence of his defence when he “believes he is not guilty of an offence he might be charged with”^[16] (emphasis added). Although the Court of Appeal was not making a definitive pronouncement of the law, we submit that this statement could potentially be construed as lending itself to a wider range of circumstances than those provided for in s 261, i.e. when the accused has been charged or informed that he may be prosecuted for an offence. The undesirability of this extension of s 261 to pre-charge questioning is reflected by the numerous objections it faced in 1976 when the Select Committee sought to include it in the Criminal Procedure Code (Amendment) Bill. The clause was finally amended to exclude such an extension because the Committee “appreciated” that suspects “[could] not be expected to state facts on which he intends to rely in his defence in court if he does not know on what charge he will be tried eventually”.^[17] It is submitted that such an extension is greatly unwelcome as it imposes a burden on the accused far heavier than any layperson can handle.

Conclusion

Ultimately, much uncertainty is imbued into pre-trial proceedings through the retention of s 261. Although mitigating measures such as the reasonableness test and express restrictions on the ambit of the courts to apply this discretion exist, they are ultimately inadequate in alleviating concerns of undue leverage against the relatively powerless and uneducated accused. As such, this article concludes that s 261, should it be retained, must have the contradictory or inherently problematic areas surrounding it clarified by way of legislative or judicial reform.

Appendix A: Relevant Provisions Discussed

22. Power to examine witnesses

(1)  In conducting an investigation under this Part, a police officer may examine orally any person who appears to be acquainted with any of the facts and circumstances of the case —

• whether before or after that person or anyone else is charged with an offence in connection with the case; and
• whether or not that person is to be called as a witness in any inquiry, trial, or other proceeding under this Code in connection with the case.

(2)  The person examined shall be bound to state truly what he knows of the facts and circumstances of the case, except that he need not say anything that might expose him to a criminal charge, penalty or forfeiture.

(3)  A statement made by any person examined under this section must —

• be in writing;
• be read over to him;
• if he does not understand English, be interpreted for him in a language that he understands; and
• be signed by him.

23. Cautioned statements

(1)  If, during an investigation, a person (referred to in this section as the accused) is charged with an offence or informed by a police officer or any other person charged with the duty of investigating offences or charging offenders that he may be prosecuted for an offence, he must be served with and have read to him a notice in writing as follows:

“You have been charged with [or informed that you may be prosecuted for] — (set out the charge). Do you want to say anything about the charge that was just read to you? If you keep quiet now about any fact or matter in your defence and you reveal this fact or matter in your defence only at your trial, the judge may be less likely to believe you. This may have a bad effect on your case in court. Therefore it may be better for you to mention such fact or matter now. If you wish to do so, what you say will be written down, read back to you for any mistakes to be corrected and then signed by you.”.

(2)  If an accused, after the notice under subsection (1) is read to him —

• remains silent; or
• says or does anything which intimates his refusal to give a statement, the fact of his remaining silent or his refusal to give a statement or his other action must be recorded.

(3)  A statement made by an accused after the notice under subsection (1) is read to him must —

• be in writing;
• be read over to him;
• if he does not understand English, be interpreted for him in a language that he understands; and
• be signed by him.

(4)  No statement made by an accused in answer to a notice read to him under subsection (1) shall be construed as a statement caused by any threat, inducement or promise as is described in section 258(3), if it is otherwise voluntary.

(5)  A copy of a statement recorded under this section must be given to the accused at the end of the recording of such statement.

261. Inferences from accused’s silence

(1)  Where in any criminal proceeding evidence is given that the accused on being charged with an offence, or informed by a police officer or any other person charged with the duty of investigating offences that he may be prosecuted for an offence, failed to mention any fact which he subsequently relies on in his defence, being a fact which in the circumstances existing at the time he could reasonably have been expected to mention when so questioned, charged or informed, as the case may be, the court may in determining —

• whether to commit the accused for trial;
• whether there is a case to answer; and
• whether the accused is guilty of the offence charged, draw such inferences from the failure as appear proper; and the failure may, on the basis of those inferences, be treated as, or as capable of amounting to, corroboration of any evidence given against the accused in relation to which the failure is material.

(2)  Subsection (1) does not —

• prejudice the admissibility in criminal proceedings of evidence of the silence or other reaction of the accused in the face of anything said in his presence relating to the conduct for which he is charged, in so far as evidence of this would be admissible apart from that subsection; or
• preclude the drawing of any inference from any such silence or other reaction of the accused which could be drawn apart from that subsection.

^[1] This provision was re-numbered in 2012; it was previously s 123 in the 1985 Rev Ed.

^[2] [1998] SGHC 232; [1998] 2 SLR(R) 855.

^[3] [2011] SGCA 12; [2011] 3 SLR 157.

^[4] [1995] SGCA 80; [1995] 3 SLR(R) 689.

^[5] Kwek Seow Hock, [14].

^[6] Lim Lye Huat Benny, [62].

^[7] Report of the Select Committee on the Criminal Procedure Code (Amendment) Bill (1976) Appendix II, at p A14.

^[8] CPC (Cap 68, 2012 Rev Ed Sing), s 23.

^[9] [1990] 3 MLJ 264.

^[10] CPC (Cap 68, 1985 Rev Ed Sing), s 122(6), which is substantially similar to s 23(1).

^[11] [2011] SGCA 32; [2011] 3 SLR 1205.

^[12] Previously s 121 in the CPC (Cap 68, 1985 Rev Ed Sing).

^[13] In Kwek Seow Hock the cautioned statement was taken on 20 July 2007 whereas his (now) s 22 statements were taken on 25 July 2007. In Lim, the cautioned statement was taken on 18 February 1995 whereas the s 22 statements were taken on 21 February 1995.

^[14] Jeffrey Pinsler, Evidence and the Litigation Process (LexisNexis, 3rd Ed, 2010) at p 175.

^[15] Report of the Select Committee on the Criminal Procedure Code (Amendment) Bill (1976) Appendix II, at p A2

^[16] Ibid., at [19].

^[17] Report of the Select Committee on the Criminal Procedure Code (Amendment) Bill (1976) Appendix II, at p D2.

By Chan Jian Da (Kenneth) and Rebecca Koh

Innocence Project (Singapore) (“IP(SG)”) members – Chan Jian Da (Kenneth), Abhinav Mohan and Jaryl Lim had the privilege of interviewing Professor Michael Hor, the Dean of University of Hong Kong’s (“HKU”) Faculty of Law.

Prior to his current appointment as Dean, Professor Hor was a Professor of Law at the National University of Singapore’s Faculty of Law where he taught, researched, and published extensively in the areas of Criminal Law, Criminal Procedure, Constitutional Law and Evidence Law.

Professor Hor served as the Chief Editor of the Singapore Journal of Legal Studies and is a member of the editorial boards of the Singapore Academy of Law Journal and the Asian Journal of Comparative Law. He was also a consultant to the Ministry of Law and the Criminal Practice Committee of the Law Society of Singapore. Internationally, Professor Hor has also been appointed Distinguished Visitor at the University of Toronto’s Law Faculty and Visitor at Oxford Centre for Criminology.

During this exclusive interview, Professor Hor candidly shared his views on the Innocence Projects in different jurisdictions, specific law reforms, and his experience serving as the Dean of the HKU’s Faculty of Law.

THE INNOCENCE PROJECT (SINGAPORE)

Q: What were your thoughts when the idea of setting up IP(SG) was mooted to you back then? What made you believe in this project?

A: This project was first conceived when a student, Audrey, who went to the United States for her undergraduate exchange programme came to know of the work of Innocence Projects (IPS) in the US. When she returned, she emailed a few Criminal Law Professors at NUS, including myself, to set up an Innocence Project in Singapore, known today as Innocence Project (SG). I was prepared to help but at the same time, I was also prepared to see the Project fail. There were concerns that setting up IP(SG) could potentially be construed as an insult to Singapore’s criminal justice system which prides herself to be reliable and trustworthy.

However, the merits of this project could not be denied. In fact, which jurisdiction can say that there would be no merits to it? It can only be a good thing. The question, however, was whether this project is practically achievable within this political climate where we have a good and competent Government but any mistakes in convictions could be seen as an insult to that.

As such, we tried to engage the Minister for Law and the Attorney-General Chambers from the outset. It took a few years and a few changes of IP(SG) heads as it was a potentially sensitive matter. It was a long process, but to-date it has since been set-up. Now, it is a question of pushing IP(SG) forward.

Q: You played an instrumental role in guiding IP(SG) from an idea in its infancy to an established initiative today. What were some challenges that you faced in the early stages to launch IP(SG)?

A: The main challenge was to get the buy-in from persons and organizations who might potentially criticize the nature of work that IP(SG) does. However, our fears are probably unfounded because after our first meritorious case, there were no complaints made to the Government.

Q: Earlier this year, IP(SG) landed its first meritorious case and the student team successfully overturned the applicant’s wrongful conviction and secured a discharge amounting to an acquittal. What are your views on this?

http://news.asiaone.com/news/education/students-probe-claims-wrongful-conviction

A: I believe that IP(SG)’s first successful case epitomizes the project’s role of uncovering any miscarriages of justice in Singapore. It convinces the Attorney-General’s Chambers and other parties to support us. With all credit to IP(SG), in this case, it was good because the Attorney-General Chambers was co-operative in granting a discharge amounting to an acquittal. However, there may be other situations in the future where IP(SG) comes up with meritorious cases but the Attorney-General Chambers might still be opposed to it. Nevertheless, this is a good start!

Q: The Innocence Project (United Kingdom) has a very similar set-up to ours in that it is student-run but they have yet to see a single successful case. In fact they are thinking of shutting it down because of that. Do you have any
 idea what are the reasons for this?

A: The UK has other safeguard mechanisms to prevent miscarriages of justice. For instance, they have a formal review procedure where a case may still 
reviewed by the Criminal Cases Review Commission (“CCRC”) even though the case has been fully heard and closed. The CCRC is funded by the UK Government in recognition that mistakes can occur and it is the Government’s duty to uncover such mistakes.

Q: Do you have plans to similarly bring the Innocence Project network into University of Hong Kong (“HKU”)?

A: First of all, it was the students who brought the Innocence Project to Singapore and I believe this is a very good initiative because students have more faith and idealism than practitioners and academics. I will personally support such a project if a student brings it up in HKU.

THE CRIMINAL JUSTICE SYSTEM IN SINGAPORE & HONG KONG

Q: In Veeramani Manikam v Public Prosecutor [2015] SGHC 201 (“Veeramani”), Chan Seng Onn J identified several lapses that happened at trial and the investigation process that led to the accused being wrongly convicted. These lapses include the Investigating Officers’ omission to investigate and verify the accused’s statements. The risk of wrongful convictions in Singapore is real. What are your views on Veeramani?

http://www.straitstimes.com/singapore/courts-crime/mans-20-12-year-drug-sentence-overturned-on-appeal

A: I remembered reading about this case in the Straits Times. Over the years, some judges do come up with judgments which are explicitly or implicitly critical of the way that law enforcement offices have behaved. For instance, in Muhammad bin Kadar and another v Public Prosecutor [2011] SGCA 32, V K Rajah JA (as he then was) was critical towards the investigations process as the police officer failed to comply with the rules. Such irregularities have been happening in Singapore, and it is necessary for judges, once in a while, to distance themselves away from law enforcement and demonstrate their neutral and independent stance in their judgments.

Q: What can be done to avoid a repeat of such lapses in investigations and trials leading to potentially wrongful convictions?

A: The issue of investigation and trial lapses arises mainly in the process of taking statements. I believe Singapore has much room for improvement in this aspect because it is presently a largely unregulated area. Unlike countries, such as the UK, where there are clear guidelines and rules as to when suspects are entitled to rest periods, and when they may seek their counsels, the general orders within the Singapore Police Force on this area remains a classified secret.

Singapore continues to adopt the traditional approach towards confession taking. It is a system where there are few rules in place, and judges do not interfere with the process in which police officers obtain confessions from suspects. However, the public is beginning to realize that there is no clear distinction between the pre-trial stage and the actual trial itself, as many salient facts are decided even before the trial. It is thus opportune time for this area to be reviewed.

Q: The Ministry of Law is intending to roll out a scheme where prison interviews will be recorded. What are your thoughts on this?

A: I believe this is a good initiative but it must be implemented properly. Presently, there is a comprehensive archive of what happens at the police station beyond the recording of statements. However, the purpose of such a scheme is defeated if the whole interrogation process spans across hours but only a portion of the statement or confession was recorded on tape.

Some years ago, there was also a pilot project on the right to counsel but there were no concrete outcomes achieved.

Q: The Misuse of Drugs Act (“MDA”) employs presumptions of knowledge, possession and trafficking on accused persons. Do these presumptions go against the sacrosanct principle that one remains innocent until proven guilty?

A: One of my earlier pieces of research was on this topic.  Personally, I am unhappy with the use of presumptions under the MDA. Presumptions are a breach of the presumption of innocence simply because it allows a conviction even where there is reasonable doubt.

If you are saying that a certain amount of drugs that an accused person is carrying is enough to establish that the accused is trafficking drugs, then the emphasis should be on the weight of the evidence itself. If presumptions are applied, this means that there is insufficient evidence. In most of the cases where I have seen presumptions being applied, the evidence was insufficiently strong.

Q: What are some reforms you want see to ensure our criminal legal justice system remains robust and prevent occurrences of miscarriages of justice?

A: Oh so many! My life’s work is almost on reforms.

Firstly, there should be a legal right to counsel. I do not see any good reason why an accused is denied access to counsel before he gives a statement.

Secondly, the presumptions under the MDA should be removed. As explained earlier, I feel that such presumptions are ineffective in crime control.

Thirdly, the mandatory death penalty system should be abolished. I feel that it is unnecessary to have the death penalty for crime control purposes. Previously, Singapore was hanging about 20 people a year; but now, about a couple a year. Is it really necessary to hang them? It is a good thing that the Government has restricted the scope of death penalty, but hopefully, they will completely do away with it.

I also feel that the current imprisonment terms are too long. The incarceration rates in Singapore are one of the highest in the world not because there are many prisoners, but because the prisoners are jailed for a very long time. However, from recent cases, it seems that the Singapore Courts are slowly moving towards reducing the duration of imprisonment terms.

Q: What about the justification that some of these penalties are necessary for their deterrence value?

A: As compared to the olden days, I question whether the imposition of such penalties has any real deterrent effect. Will reducing the severity of some punishments really result in more people committing certain crimes? The removal of caning today is unlikely to make any difference to the crime rates tomorrow. Similarly, I do not think that there is much difference in the deterrent value between a mere jail sentence and a jail sentence plus caning.

Q: Do you see it as an problem if the Government follows the philosophy that they will not fund the defence side in the form of legal aid?


A: If the prosecution and defence are both legitimate powers of criminal justice system, then how can one justifiably fund one but not the other? In developed democracies, such as the United States and Canada, the prosecution does not view projects like Innocence Projects antagonistically. In fact, Innocence Projects are quite common in the United States.

Q: How is the criminal legal system in Hong Kong? How different is it from Singapore?

A: Similar to Singapore, Hong Kong has a largely unregulated investigations process. Hong Kong does not have a Police Investigations Act or an Evidence act. However, Hong Kong has a very active judiciary who occasionally declares certain acts as unconstitutional.  As such, there are much higher chances of achieving change through constitutional litigation in Hong Kong than Singapore.

DEANSHIP IN HONG KONG UNIVERSITY FACULTY OF LAW

Q: Moving away from criminal justice, the big move has been your appointment as the Dean of HKU Faculty of Law. How has it been so far?

A: At the moment, I am an administrator handling the administrative and finance aspects of Law School which I previously never saw as a teacher. I have been too busy to teach and research but I hope to eventually start teaching again.

ADVICE FOR NUS STUDENTS

Q: Any words of wisdom for the students in NUS Law?

A: Do not be discouraged by what other people say you cannot do.

A Case Commentary on Veeramani Manikam v Public Prosecutor [2015] SGHC 201

By Chan Jian Da, Roi Tan Yu Ming, Joel Jaryn Yap Shen

For three years and seven months, Mr Veeramani Manikam (“the accused”) had been in remand in Changi Prison after being sentenced by the District Judge (“DJ”) to a total of 20½ years imprisonment with 20 strokes of the cane. The accused was convicted for importing cannabis under s 7 of the Misuse of Drugs Act (Cap 185, 2008 Rev Ed) (“MDA”) punishable under s 33(1) of the MDA and possessing Nimetazepam, a “Class C” controlled drug, under s 8(a) of the MDA.

However, on 3^rd August 2015, the accused was acquitted after Justice Chan Seng Onn (“Justice Chan”) allowed his appeal in Veeramani Manikam v Public Prosecutor [2015] SGHC 201 (“Veeramani”). The Singapore High Court accepted his account that he had no knowledge about the drugs found in the car he was driving at the time of arrest.

In delivering the judgment, Justice Chan reversed the DJ’s decision after concluding that the accused’s testimony was “consistent”, “candid”, “credible” and “predominantly unrebutted” (at [14] and [19]). The learned judge also identified several lapses that had occurred at trial and in the investigation process leading to the accused’s wrongful conviction at first instance.

Facts

On 29 December 2011, while the accused was working as a bouncer at a Johor Bahru pub, he drank with a customer (“the Singer”) throughout the night. The Singer later requested the accused to arrange transportation for him back to Singapore as the Singer had to work the next day. The accused then approached his colleague, Ravi, for help. Ravi lent the accused a car, on the condition that the Singer did the driving and the accused drove the car back.

The accused opened a black bag which he noticed in the car, only to be told by the Singer that it contained food. The accused did not pursue the matter. While the Singer continued driving, the accused fell asleep.

When the accused was later awoken by a Malaysian Traffic Police Officer who threatened to issue a summons if the accused did not move his car, the Singer was found to be missing. At that point, the car was parked along the road before the Malaysian Customs. As the Singer was no longer in the Car, the accused drove the Car, crossed the Malaysian Customs and proceeded towards the Woodlands Checkpoint because he was unable to make a U-turn. He also noticed that the black bag was not in the car and assumed that the Singer took it.

Acting on intelligence, Immigration & Checkpoints Authority officers inspected the car at Woodlands Checkpoint. The accused was arrested after the black bag was found hidden under the car’s bonnet and it contained cannabis mixture and the “Class C” drug, Nimetazepam.

The decision below

In PP v Veeramani Manikam [2013] SGDC 206 (“GD”), the DJ convicted the accused on the following grounds:

1. It was “inexplicable that [the accused] had driven into Singapore instead of turning back and returning to the pub as the officer was chasing him from where the car was parked and that it was a straight road” (GD at [44]).

2. The DJ drew the inference that the drugs were imported into Singapore for trafficking from the accused’s admission that the drugs were not meant for his personal consumption (GD at [44]).

3. The DJ held that the Appellant was ‘clearly aware’ that the black bag contained drugs when he drove the vehicle into Singapore because he opened the bag earlier and saw the drugs being wrapped with transparent plastic wrappers (GD at [45]).

Findings on Appeal

On appeal, Justice Chan overturned the DJ on the above three grounds, thereby finding that the accused had successfully rebutted the presumptions under ss 18(2) and 21 of the MDA, on a balance of probabilities. Firstly, the accused’s decision to drive towards Singapore is justified because he was unable to negotiate a U-turn before the Malaysian Customs. Secondly, the accused was not aware of the presence of drugs given that the drugs were kept in an opaque bag and the accused was falsely reassured by the Singer that the bag contained food. Thirdly, the DJ made an unsupported inference that the accused was aware that the bag contained the drugs when he simply stated that he did not consume drugs.

U-turn

The lawyer who represented the accused pro bono, Mr Jason Chan from Allen & Gledhill LLP, hired a private investigator who tendered evidence that there was “no available U-turn located at the Johor Sultan Iskandar Complex Customs” and that “the only way to make a U-turn would be to ‘go back’ to Singapore and proceed to come back to JB”. The prosecution’s witness also submitted evidence that the “Malaysian Customs will not allow anyone to make a U-turn so easily” (at [10]).

Justice Chan accepted the evidence provided by the private investigator and the prosecution witness, stating that it ‘would have made sense for the [accused]’ to proceed to drive into Singapore instead of negotiating a U-turn near the Malaysian Customs (at [10]).

Moreover, the factual premises relied on by the DJ are “inherently flawed as there seems to be a highly plausible explanation for the appellant driving into Singapore even though the Singer was no longer in the car”. Thus, Justice Chan concluded that the DJ’s findings were “made against the weight of the evidence” (at [11]).

Unaware of the presence of drugs

Justice Chan reviewed the objective evidence and accepted Mr Jason Chan’s submission that the multiple layers of wrappings used to conceal the bundles of drugs had rendered it opaque (at [12]). Hence, it would not be apparent to the accused upon a cursory glance that the bundles contained drugs.

Unsupported Inference

Justice Chan also held that the DJ “manifestly erred” by finding that the accused admitted that he knew the black bag contained drugs simply because the accused admitted that the drugs were not for his personal consumption (at [13]). The purported admission as inferred by the DJ was completely unsupported by evidence.

Rebutting the presumptions under ss 18(2) & 21 of MDA

Section 18(2) of the MDA states that a person who is proved or presumed to have had a controlled drug in his possession is presumed to have known the nature of the drugs and s 21 of the MDA states that if a controlled drug is found in any vehicle, the owner or the person who is in charge of the vehicle for the time being is presumed to be in possession of the controlled drug. In the instant case, the accused had rebutted the presumptions in ss 18(2) and 21 of the MDA on the following grounds:

(a) The accused furnished a detailed, consistent and candid testimony that was held to be credible. His account was also supported by the private investigator’s findings. Contrary to the Prosecution’s submissions that his story was “improbable”, he was able to accurately provide the name of the pub and its location.

(b) Given the difficulties in making a U-turn at the Malaysian Customs, the accused’s explanation for driving into Singapore when he had no intention to do so is plausible.

(c) On the evidence, the accused was unlikely to suspect that there were controlled drugs in the black bag, especially when the Singer assured him that it was food.

(d) The accused was so intoxicated that he was “slurring” when arrested. Justice Chan opined that it is odd if the accused would not want to be alert while making the drug run.

(e) The accused was candid in providing information in his statements soon after his arrest.

Holistically, Justice Chan was satisfied that the accused had rebutted the presumptions on a balance of probabilities and he is not guilty of importing the controlled drugs.

Justice Chan further observed that the accused had rejected a request to illegally smuggle cigarettes into Singapore one month before his arrest. The accused had earlier reported this incident to the Singapore authorities and it was possible that the report was unrecorded. The accused believed that he might have been framed as a result of his refusal to commit the illegal act (at [18]).

Lapses at trial and in the investigation process as identified on appeal

On appeal, Justice Chan identified several lapses not addressed at the decision below. These lapses could be classified into two categories, namely the Investigation Officers (“IOs”) failure to verify the accused’s statements and judicial errors.

Under the first category, the IOs did not verify the accused’s statements by failing to follow up on it and carry out due investigations.

“[T]he existence of a U-turn before the Malaysian Customs had not been ascertained and no attempt was made to verify the existence of the Pub, his co-worker Ravi, the Singer and the incident of the Malaysian Traffic Police officer waking him up and ordering him to drive the Car away.” [emphasis added] (at [9])

“[T]he prosecution had submitted at the trial below that the accused had “fabricated his entire defence” … At the appeal, the prosecution similarly maintained its position that “[the] entire story of the [accused] is highly improbable”… However, I note that at the trial below, the [accused] had in fact accurately provided the name of the Pub … The existence of the Pub at the location mentioned by the [accused] could have been ascertained by a simple search on the Internet (which was probably not done by the investigating officers in charge of the [accused] case (“the IOs”) and the prosecution). I performed a “Google” search based on the name of the Pub provided by the [accused] and found the address and location of the [pub] broadly tallies with what the [accused] had said. I note that [the private investigator] was also subsequently able to verify the physical existence of the Pub.” (at [14])

“[I]t is unfortunate that the IOs chose not to check the truth or falsity of the [accused’s] story at that time and follow up by tracing the location of the Pub, the existence and whereabouts of Ravi, the Singer and the Malaysian Traffic Police officer who had woken the appellant up while the Car was stationary near the Malaysian Customs.” [emphasis added] (at [16])

The IOs’ failure to corroborate the accused’s story illustrates the danger of an accused being prejudiced by administrative breaches in the investigation process.

Under the second category, judicial errors also contributed to the accused’s wrongful conviction when the DJ drew inferences against the weight of the evidence.

“[T]his finding of the DJ also appears to be made against the weight of the evidence before her as the appellant’s evidence that he could not perform a U-turn was not challenged by the prosecution in the hearing below.” [emphasis added] (at [11])

“[T]he DJ manifestly erred by finding that the appellant admitted that the drugs were not for his personal consumption; such a finding also implied an admission by the appellant that he knew that the Black Bag contained drugs (see [44] of the DJ’s GD). This purported admission is completely unsupported by the evidence before the DJ.” [emphasis added] (at [13])

“The DJ, for reasons not known, did not allow the [accused] to fully ventilate this point in the hearing below.” [emphasis added] (at [18])

With respect, this unfortunately demonstrates the very existence of human fallibility, revealing the limitations of the judicial system where it cannot be said to be fully error-free.

Commentary

While a well functioning criminal justice system strives to convict the guilty and protect the innocent, the imprisonment of innocent persons debases this purpose. Lives of the wrongfully convicted are inadvertently destroyed and victims are falsely reassured by the apparent retributive justice meted out. Resultantly, real perpetrators are accorded the freedom to commit further crimes, ultimately undermining public confidence in our criminal justice system.

Veeranmani’s significance transcends beyond the mere acquittal of an individual who was caught in an unfortunate circumstance. It reiterates the overriding duty that both prosecution and defence counsel owe to the court in assisting it to achieve justice. This necessarily places a burden on both parties to verify the salient facts on which the case may turn on.

It is poignant in this regard to recall the words of V K Rajah JA (as he then was), in delivering the judgment of the seminal decision of Muhammad bin Kadar v Public Prosecutor, that:

“[t]he duty of the Prosecution is not to secure a conviction at all costs. Rather, the Prosecution owes a duty to the court and to the wider public to ensure that only the guilty are convicted, and that all relevant material is placed before the court to assist it in its determination of the truth. The fruits of investigations are after all the property of the community to ensure that justice is done”[1].

While the onus of rebutting the presumptions in the MDA rests on accused persons as in the immediate case, it is even more important that the prosecution discharges its duty given the reversal of the burden of proof.

In the instant case, the pro bono lawyer remarkably engaged a private investigator to ascertain that it was not possible for the accused to perform a U-turn before the Malaysian Customs. This finding was crucial in overturning the accused’s conviction. The lawyer’s commitment had vindicated the innocent accused, reiterating the importance of strengthening a pro bono culture in the legal landscape to facilitate access to justice. Veeramani also highlights the importance of scaling up legal representation for accused persons in criminal cases. If the accused had represented himself or was without an effective pro bono counsel, the court may not have accepted the sensibility of the accused’s decision to drive into Singapore.

In conclusion, Veeramani illustrates that our robust criminal justice system is not completely immune from errors. The multiple lapses identified in the investigation process and at the trial below were regrettable, especially the IOs’ refusal to verify or follow up with the accused’s statements. These lapses serve as a stark reminder that the risk of wrongful convictions in Singapore is real. This reinforces Innocence Project (Singapore)’s position in the Singapore criminal legal system as the final ‘safety net’ to vindicate the innocent who may have fallen through the cracks of the justice system.

[1] [2011] SGCA 32 at [200]

Dear all,

Thank you for your continued support all these years. As of November 2018, The Innocence Project (SG) is officially renaming itself to The Recourse Initiative. This move was taken to better reflect the range of cases we will be adopting – we no longer have a requirement that applicants must be claiming factual innocence, and will now also be taking on cases where applicants feel their sentence has been manifestly excessive.

Given this recent change in name, we will also be retiring this URL. Please keep up to date on TRI’s happenings at our new website, justice.sg!

Please direct any and all enquiries to tri@justice.sg.