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.