The Singapore Law Review

From the Editor-in-Chief

The criminal law governs the acts of individuals and seeks to establish order while simultaneously preventing harm in inherently chaotic societies. As its control and reach over citizens over the land are manifestly formidable, the criminal law must invariably be underpinned by notions of justice and fairness; otherwise it would lose all normative reason for its existence. This issue of the Juris Illuminae examines the various facets of the law in this regard, from the initiation stage of prosecutorial discretion to evidential and constitutional worries at trial, and their need for reform, if any. An intriguing interview with Mr. Subhas Anandan, arguably Singapore’s best-known criminal lawyer, is also included. He provides his views on his practice and motivations – topics that will greatly interest students considering a similar career path.

This issue marks the end of the Singapore Law Review’s current editorial board’s contributions to this flourishing newsletter. The Review thanks Colin Ng & Partners for their kind partnership and support throughout the year. We are also grateful for the opportunities afforded to us in furthering our aim of facilitating the cognisance and discussion of all matters legal. We must also thank you, the loyal reader, for without an audience, words will be for naught.

Do enjoy this last issue of Juris for the academic year and all the best in the coming examinations!

(Read the Print Version: Juris Illuminae Vol. 4 Issue 5 Print Edition) (more…)

William O. Douglas, the longest serving Justice of the Supreme Court of the United States once mused: “Absolute discretion is a ruthless master. It is more destructive of freedom than any of man’s other inventions.” Indeed, while internal guidelines ensure that prosecutorial discretion is less than absolute in Singapore, the Public Prosecutor (officially the Attorney-General on whose authority the Deputy Public Prosecutors act) is undeniably a very important actor in the local criminal justice system.

As Mr. Winston Cheng, Deputy Public Prosecutor of the Attorney-General’s Chambers admitted during a talk held in NUS law school on March 18 this year: “We have the sole discretion in the institution, conduct and discontinuation of criminal procedure.”

This discretion operates on two-folds.

First, public prosecutors decide what to prosecute, looking at each crime committed on a case-by-case basis. The decision on whether to prosecute, as Mr Cheng noted, is “not for the sole purpose of obtaining a conviction”.

“If a person is a first offender, is a student and is remorseful, you are not going to put him on a trial.”

The second form of discretion - and often the unwilling result of the sheer volume of cases to be reviewed - is the length of time taken to bring a case to trial. The usual lag time between when an offence is committed and when it is prosecuted in court is estimated to be about one to two years, depending on the complexity of the cases.

But there is no limitation period for criminal offences locally, and public prosecutors may choose to prosecute a case well beyond the time after it was committed.

The case of Chan Kum Hong Randy v. Public Prosecutor, [2008] SGHC 20 (H.C.) [Chan], for instance, showed that long lag times are not rare occurrences. In Chan, six to ten years elapsed between the detection of the offences committed and the actual prosecution.

“As a result of the delay in prosecution, the appellant faced the prospect of having to suffer not once but twice the pain and hardship of incarceration as well as the rigours of reintegration into a society,” said Justice VK Rajah, who heard the appeal. (Chan at para. 50).

And the worry about discretion does not just stop there. Currently, there is little publicly available information about this discretion process, and the lack of transparency is fast growing into a pressing concern.

This issue was further highlighted in section 2 of the Workers’ Party Manifesto 2006, which read: “The real power to determine the offender’s sentence shifts from the Courts to the prosecution who will decide which charge to proceed on to produce the appropriate sentence. This encourages plea-bargaining which makes justice less transparent as the exercise of prosecutorial discretion cannot be reviewed or appealed against.”

Although Associate Professor Ho Peng Kee, Senior Minister of State for Law had announced during the 2007 Budget Debate that more disclosure measures would be introduced, no official response has yet to be implemented.

Given unseen guidelines and unarticulated rationales, until more disclosure measures are in place, perhaps the sole comfort in prosecutorial discretion is our faith in the integrity of the people which operate the system.

As then former Attorney-General and now Chief Justice Mr. Chan Sek Keong emphasised in his speech during the 10th Singapore Law Review Lecture, delivered in 1996: “It is people who make a system fair and just, and not the reverse.”

Sook Zhen is a first year law student and the Deputy Editor of Juris Illuminae.

There are 2 widely-accepted models of criminal justice process, namely due-process and crime-control.

The due-process model embodies the ideology that it is better to let 10 guilty men go free than convict an innocent one. The presumption of innocence is therefore a central tenet of this model.

On the contrary, the main feature of the crime-control model concentrated on vindicating victim’s rights rather than on protecting the defendant’s rights.

The Criminal Procedure Code (Amendment) Act 1976 introduced elements of the crime-control model into Singapore. Prior to 1976, the criminal justice system pre-dominantly resembled the due-process model. Following the revolution of the Code, crime rate in Singapore was reduced significantly along with the diminishing hurdles against the conviction of criminals.

For a more detailed exposition, see Chan Sek Keong “Singapore’s Greatest Criminal Lawyer” The Straits Times (15 March 2008).

While criminal law practice in Singapore is largely confined to the statutory framework of the Penal Code (Cap. 224, 1985 Rev. Ed. Sing.) and the Criminal Procedure Code (Cap. 68, 1985 Rev. Ed. Sing.), it is not as insular or sterile as those unfamiliar with this area of law make it out to be.

The Penal Code standing on its own is directed towards a wide spectrum of harmful social behaviors. The criminal law also extends from offences against the person (eg. assault, murder) and traffic offences to white collar crimes regulated under other statutes. It may surprise an average citizen and indeed even some corporate citizens that breach of section 157 of the Companies Act (Cap. 50, 2006 Rev. Ed. Sing.) may subject a dishonest officer to criminal sanctions of a fine not exceeding $5,000 or to imprisonment for a term not exceeding 12 months.

Nexus between Constitutional and Criminal Law

Another aspect of the criminal procedure that is not always obvious is the availability of constitutional arguments in a criminal court. In fact, even before the beginning of trial, Article 9(3) of the Constitution of the Republic of Singapore (1999 Rev. Ed.) confers on an arrested person three express rights in accordance with his fundamental liberties: (1) the right to be informed of the grounds of his arrest; (2) the right to consult counsel and (3) the right to be defended by a legal practitioner of his choice. Article 11 also confers protection against retrospective criminal laws and repeated trials. Collectively, these provisions ensure the constitutional rights of the person throughout the whole criminal process.

Constitutional arguments are also invoked when points of law arising from criminal procedure clashes with the constitutional rights of the accused. For example, in a case familiar to Public Law students, Haw Tua Tau v. Public Prosecutor [1981] 2 MLJ 49, the Privy Council weighed the effect of the amendments introduced by the Criminal Procedure Code (Amendment) Act 1976 depriving the accused’s right to make unsworn statements on which he could not be cross-examined, against his constitutional right to personal liberty under Article 9(1) of the Constitution. The defence counsel argued that the right to silence falls within the ambit of rules of natural justice and that the amendments to allow adverse inferences to be drawn against the accused if he refuses to offer testimony is unconstitutional. It was held that the amendments were constitutionally valid.

David Marshall – Constitutional and Criminal Advocate

It is therefore not a mere coincidence that Chief Justice Chan Sek Keong, in his tribute to David Marshall at the latter’s 100^th birth anniversary recently, appraised him as “Singapore’s greatest criminal lawyer” who was also the “best constitutional and administrative law advocate of the day” (Straits Times, March 15 2008).

CJ Chan’s emphatic point that Marshall’s ability “to produce creative and novel legal arguments based on the textual readings of the Constitution and the related statutes” highlights the notion that good criminal lawyers like Marshall have no qualms in raising fine points of criminal procedure and evidence based on the Constitution in order to exhaust all possible legal arguments to help the accused. It also highlights the assiduous attitude required of a criminal lawyer – indeed of every lawyer – to adequately discharge his duties in representing his client.

Marshall was such a master in the art of advocacy that rumours abound jury trials were abolished because it became too easy for him to convince the jury panels for acquittals! Although Marshall’s philosophy to “help free a human being from the threat of official murder (mandatory death penalty)” regardless of what he privately believed to be the truth is controversial, the ethos he held so firmly to as a defence counsel is presumably the main reason why CJ Chan regarded him as a “giant among pygmies at the criminal bar”.

Conclusion

Involvement in the Singapore criminal law, whether as a prosecutor or a defence counsel, may not be as narrow a window of practice as perceived. Marshall stood out as a distinguished criminal lawyer amid a very different socio-political background. The next giant of the criminal bar can be expected to blaze his own trail.

An Qi is a second year law student and the Editor of Juris Illuminae.

Criminal law plays a vital role in society by ensuring justice and fairness and serves to protect society from injurious acts. Essentially a coercive arm of the law which carries overtones of moral condemnation by society through the criminal label, criminal law differs from many other areas of law. Furthermore, the criminal law has always been the most visible aspect of a country’s legal system and is subject to much public scrutiny.

In Singapore, criminal cases are heard in the Subordinate Courts and in the High Court for more serious offences, with appeals to the High Court and Court of Appeal respectively. Singapore has abolished jury trials for criminal cases since 1970 for reasons including, inter alia, unsuitability of jury trials in Singapore’s racially fragmented society. When charged with an offence, accused persons can plead guilty or claim trial. A mitigation plea can be entered and a timely guilty plea can have mitigating value if it is a genuine expression of remorse, but not when there is no choice other than to plead guilty, or when public interest necessitates a deterrent sentence.

Although some fear that those in the lower income bracket of society will not be able to afford counsel and hence have a poorer chance at justice, pro bono schemes are increasingly accesssible to such persons. In 1985, the Law Society of Singapore started a Criminal Legal Aid Scheme (CLAS) which now covers 15 different statutes, including the Penal Code, for any offences other than those bearing the death penalty. Applicants undergo means testing and if they cannot afford a lawyer, a volunteer lawyer in private practice will be assigned to them. No fees would be charged although one may be required to pay for out-of-pocket expenses such as transportation. The CLAS currently only applies to persons who claim trial, though discretion is retained to allow representation in exceptional cases. The CLAS is currently funded through donations from members of the judiciary and the Bar, amongst others. For offences bearing the death penalty, the State will assign the accused a lawyer if he/she cannot afford one. Yet others fear that high prosecutorial success rates mean that the criminal trial process is inevitably weighed against accused persons. Although the figure may be high, it does not necessarily mean that there is a bias towards the prosecution in proving a case. Viewing this figure in a more positive light, it could mean that criminal proceedings are taken up against accused persons who had a weaker case and hence, that less time and money was spent pursuing convictions which are illusory.

However, in Mr Michael Hwang SC’s speech at the Opening of the Legal Year 2008, he recognized that a perceived bias in evidential matters might discourage legal practitioners from practicing criminal law. He raised two areas of particular concern, namely the statements recorded by the police from witnesses and the lack of discovery in criminal proceedings. Such evidential rules hamper justice and it is noted that amendments to the Criminal Procedure Code are underway.

The recent amendments to the Penal Code are a good indication that criminal law reform is still well and alive in Singapore today. Hopefully, criminal law reform will continue to thrive in order to serve the needs of society in promoting justice and fairness in the law.

Rachel is a first year law student and an associate editor of SLR.

“Pay them well,” Chief Justice Chan Sek Keong said in response to the shortage of lawyers in Singapore. “Greed works most of the time, even for the large majority of people in affluent societies.” It is no wonder then that the legal profession is languishing in Singapore when junior lawyers are paid more than double in Hong Kong – about S$11,650 a month compared to about S$4,000 in Singapore. Particularly, the Committee headed by Justice VK Rajah which was tasked to undertake a comprehensive review of our legal services sector has observed that “young lawyers are not attracted to criminal work, especially since this area of practice is not financially rewarding.” While courts are still efficient in leaving no backlog of criminal cases (based on the clearance rate of judicial matters mentioned by Chan CJ at the opening of the legal year) despite the smaller population of lawyers, the pressure to expedite cases can only add to the stressful and demanding nature of litigation work. Another reason which may explain why litigation attracts fewer entrants than its counterpart, corporate practice, is the perception amongst younger lawyers that more career opportunities and options are provided by corporate practice. These push factors, however, ensure that the lawyers who do filter into criminal litigation are truly passionate about their work and, as one of our Deputy Public Prosecutors put it, “appreciate the thrill of going to court”.

Sin Yan is a first year student and an associate editor of SLR.

Mr Subhas Anandan is a well-known lawyer in the Singapore criminal field. He heads the Criminal Law Department in law firm KhattarWong as a Senior Consultant. Mr Anandan has been in practice for more than 25 years and has come to be synonymous with several of the landmark capital punishment cases, for example the Kallang Body Parts and Took Leng How’s cases. He has also defended clients who were arrested under the Internal Security Act (ISA). As a leading criminal lawyer who is totally committed to the development of criminal law, he was awarded the Legal Eagle Award of 2001 conferred by the Law Society of Singapore. He is also the President of the Association of Criminal Lawyers (ACLS) which aims to promote the interests of criminal law practititioners and to contribute to the development of the criminal law in Singapore.

What drew you to the practice of Criminal Law?

Actually, when I first began to practice I dabbled in many fields and crime was not a major part of my work. I only began to turn my focus to criminal law when I noticed more clients approaching me with cases about petty theft and robbery. The more involved I got in the field, the more exposure I had in the media and from then on I began to attract a growing pool and variety of clients requesting my services as a criminal lawyer. Gradually I found myself being branded a criminal lawyer amongst my colleagues as well.

Criminal law was not something I consciously set out to practice. But the more I delved into the field, the more passionate I found myself feeling. I became convinced this was one field where I could most clearly perceive the change I was affecting in people’s lives.

Are there skills you feel are necessary to succeed in Criminal Law as distinct from other fields of practice in Singapore?

A criminal lawyer has to think very quickly on his feet. When cross-examining witness, he has little awareness of what evidence is going to be forthcoming. This is unlike civil cases where lawyers on each side are armed with affidavits. Your clients may not have the best memory, which means that there is always the potential that something could blind-side you during the proceedings. A criminal lawyer, therefore, has to be adaptable and resilient in the face of such uncertainties.

Passion is crucial. Lawyers in their respective fields have different motivations for entering it, but when it comes to criminal law a passion for the job is necessary to succeed. Without it, some of the hurdles can seem insurmountable. For example, I have some young practitioners with me at the moment and in their work I can glean some of this passion. Nevertheless, I worry whether this will endure in face of comparisons against their compatriots in the corporate field.

This means you need to be prepared to make some sacrifices, both personally and professionally. You might not start off making as much money as your compatriots and not everyone may admire you for the field you have chosen. Personally, you will find yourself making sacrifices when it comes to time for yourself and for your family. I have had to get used to phone calls in the middle of the night from clients. When I have been involved in capital cases, the burden of responsibility it entails can take a great deal out of a person, not just physically but emotionally. I feel you need to have a level of endurance and perseverance unseen in other fields.

Your opinion about the practice of Criminal Law in Singapore as compared to other jurisdictions?

We have a small pool of criminal lawyers in Singapore. Whether this is due to reasons necessarily unique to Singapore is open to debate but I think there are a combination of factors present in our system that can turn off lawyers from practising in this field.

I have always started off with the premise that we as a society must give an accused a fair defence, the best defense possible under our law. The role of criminal lawyers as defence counsel is just as integral as is the role of public prosecutors. There are rights on each end that need to be fought for. However, sometimes the judiciary tends to belittle our role in the system. More disturbing is the perception I have gotten that some judges here approach criminal cases with the attitude that an accused is guilty until proven innocent. The attitude must change.

How has both the field and practice of Criminal Law evolved in Singapore?

When I first started practicing, I could still discern the liberal influence of British law and of Indian decisions in the development of criminal procedure and laws. This ensured a fair amount of room for the rights of the accused to be navigated against the brunt authority of the state.

Then came the abolishment of jury trials. At the same time, the law was beginning to change. Calls were made to reform the law to ensure its applicability and the result of this was the abolishment of appeals to the Privy Council and the reform of the Criminal Procedure Code. I felt the law was being weighted against the rights of the accused. Defence counsel is not to have access to his client’s statements even though the prosecutor is entitled. I have repeatedly argued for the right to counsel while the accused is in detention. I have suggested the accused have the benefit of a magistrate as he pens his statement, especially when it involves a capital charge. These have been denied.

What I have seen of the evolution of the law is the rights of the accused being chipped away without any compelling justifications being proferred in return.

What is the future of Criminal Law in Singapore?

Change is inevitable. If lawyers, especially those from the Association of Criminal Lawyers, raise enough objections about the state of the system, there will have to be movement forward. It helps that there is more publicity on criminal cases now more than ever. Singaporeans are not aware of the vagaries of the system until a loved one is caught. They have a responsibility as well to raise their concerns to their parliamentarians.

I do not think lawyers should give up on change. They just have to bang their heads against the concrete and sooner or later a crack will form.

I do envisage that the system will change for the better. In the young practitioners I am training I observe both a fire and an aptitude to navigate the system that tells me they are going to gradually transform their role into a more effective one. Nevertheless, for any progress to be made, attitudes will have to change.

Your advice to a law student who is interested in the field but is concerned about career advancement and success?

I would say that it is a very challenging profession. You will find yourself knee-deep in the raw and unpleasant aspects of life. It is a heavy responsibility when you undertake the fight for someone’s life.

Start by making a good internship choice. Choose a firm with mentors that will take you to court with them and let you sit in on client meetings. Be open with your views about the case and observe how you take to the environment.

Success in the field entails not just passion. It necessitates intelligence and an aptitude for navigation of the system. Some of this will come from experience but some comes from natural talent.

I have been dedicated to this job because I see my actions affecting change. I have had to make sacrifices along the way, both personally and professionally.

Do I regret entering criminal law?

Not for a minute.

Harpreet is a second year law student and an associate editor of SLR.