The Singapore Law Review

Constitutional  law is more important than ever for the continuing development of Singapore’s legal system - that is, if Assistant Professor(As/P.) Arun Thiruvengadam and other crucial legal actors are right.

In a recent interview on 16 July, 2008  at the National University of Singapore (NUS) Faculty of Law Bukit Timah Campus with the Singapore Law Review, As/P Thiruvengadam cited the current president of the Law Society, Michael Hwang’s actions in March this year as an example.

Mr. Hwang had reiterated the lament of his predecessor, Philip Jeyaretnam, that traditions of constitutional law and advocacy have remained underdeveloped in Singapore.  He then persuaded council members of the Law Society to set up a committee to study human rights in order to “promote greater awareness of public and international law.”

The Committee which was formed as a result now consists of leading members of the bar in Singapore, like Dr Thio Su Mien, former dean of NUS Faculty of Law and Senior Counsels Sundresh Menon and Cavinder Bull.

This increasing emphasis on Constitutional Law  appears to be finding support among judges in Singapore as well.

In XP v. PP, [2008] SGHC 107, Judge of Appeal Justice V K Rajah drew a connection between the disciplines of criminal and constitutional law by emphasising that “it is the constitutional role of the judges to carefully and dispassionately evaluate the deficiencies of the Prosecution’s and/or the Defence’s case theory on the sole basis of legal proof and not mere suspicion or intuition.”

This, according to As/P Thiruvengadam, is significant because it marks a departure from earlier times when constitutional law in Singapore was treated as an autonomous area dealing only with issues such as politics, and was to be kept isolated from other branches of law.

In his view, the recent trend in Singapore is to be welcomed, because it will enable the maturation of the legal system of Singapore as a whole.

“Other areas of law, say Contract Law, are relatively more straight forward as people would respect the basic tenets of the law for reasons of finality and efficiency,” he said.

In constitutional law, however, these imperatives do not necessarily lead to easy acceptance of efficient but unjust results. In order to find broader support and legitimacy, solutions to constitutional disputes cannot simply be forced upon people in the name of efficiency or commercial soundness.

Such solutions must be in tune with deeper societal values, and must also respect the legitimate interests of the affected individuals in a reasonable, just and sensitive manner. Here, more so than in other areas of law, knowledge of the ‘black-letter’ law is insufficient, and a far greater appreciation and understanding of local socio-political and cultural factors is required.

The challenges of constitutional law are great, and  discrimination in the law, As/P Thiruvengadam believes,  serves as a good example to highlight these very challenges.

To illustrate the complexities involved, As/P Thiruvengadam raised the simple example of the thin line between meritocracy and class-based discrimination in Singapore.

“How do we know that a student who secures good grades does so because of her intrinsic ‘merit’ or because she is fortunate to come from a privileged background that allows her to take advantage of attributes - such as private tuition classes or greater ease with the English language -  that come with an upper class background?” he asked.

“When and to what extent should we take such backgrounds into account to prevent us from crossing that line?”

What would you say to our finalists coming down to present their papers at the Symposium?

“First, I would congratulate them for having been shortlisted.  Given the competition involved, this by itself is quite an achievement.  Having closely studied the intricacies of discrimination law in their own jurisdiction, I would encourage them to use this opportunity to look at the laws in other jurisdictions, and to examine how and why they differ from the laws in their home countries. This will demonstrate, in a very practical way, the usefulness of looking at others.  At the same time, having to defend your own legal system’s position to others will allow them to see how one is viewed by others.  The metaphor of a legal ‘mirror’ comes to mind.”

As/P Thiruvengadam has taught Public Law the NUS Faculty of Law for three years.  In August 2008, he shifts his focus, and will be teaching an elective course on comparative constitutional law.

Lynette is a second year law student and the Deputy Chief Editor of the Singapore Law Review.

Lo Pui Sang and Others v. Mamata Kapildev Dave and Others (Horizon Partners Pte Ltd, intervener) and Other Appeals [2008] SGHC 116

What happens when you are in a minority group of 20% and the law dictates that your rights may be subjugated to the decision of the majority 80% group? The instinctive reaction from a third party is probably predictable - “Of course, majority wins!”

The legal system, being conscious of notions of equality and fairness, does not always concur with the simple “majority-wins mantra” to the extent that it violates the right of the individual person to be protected by the law. The inherent vulnerability of the minority weighs heavily on the conscience of the law to warrant the institution of statutory protection in various forms: for example Sections 216 and 216(A) of the Companies Act (Cap. 50, 2006 Rev. Ed.) aimed at protecting minority shareholders; and Article 12 of the Constitution of the Republic of Singapore (1999 Rev. Ed.) which enshrines the right of all persons to equal protection by the law.

However, discrimination is definitely not taboo in the eyes of the law because it is not necessarily synonymous with inequality.

Lord Diplock in the seminal case of Ong Ah Chuan v. Public Prosecutor [1989] 1 AC 648 (”Ong Ah Chuan“) stated logically that what Article 12 of the Constitution assures the individual is the right to equal treatment with other individuals in similar circumstances [only]. Inequality can occur where the unlike are treated with like. It is also precisely through discrimination of the desirable and undesirable that our legal system is able to administer justice to meet the expectations of the people.

Therefore, where statutory provisions provide for the majority to trump the minority, the question is not whether the minority have been discriminated against, but rather, was the discrimination arbitrary and without any reasonable basis.

In this case, Mr KS Rajah, S.C. submitted on behalf of the appellants (minority shareholders) that the 80% rule in Sections 84A and 84B(1)(B) of the Land Titles (Strata) Act (Cap. 158, 1999 Rev. Ed.) are unconstitutional as they discriminated against the minority such that the majority has a choice as to where they wished to live while the minority would be deprived of that same choice.

It is submitted that Justice Choo was correct to point out that the law requires a deeper analysis than this, and the counter-arguments proffered by His Honour at paragraph 7 of his judgment to support his view that the provisions do not infringe Article 12 were persuasive. The right to equal protection under Art 12(1) must be determined from the outset and indeed, all the home owners had equal opportunity to sell their houses under the law. This means that the appellants’ argument failed at the first stage of the three-stage test for the constitutionality of discrimination under Article 12 formulated in Taw Cheng Kong v. Public Prosecutor [1998] 1 SLR 943 at [33], since the law was not discriminatory against the minority at the outset.

(Although the Singapore Court of Appeal subsequently overruled the High Court decision to strike out a statutory provision as unconstitutional, the formulation of the three-stage test remains a good expression of the test used by the courts following Ong Ah Chuan).

A differentiating factor in the legislation may not be discriminating to the people affected, depending on whether there has been a real classification from the outset. Broadly-speaking, differentiation is the modus operandi of the law and discrimination between people in different circumstances is impeccable insofar as the differentiating factor, in the words of Lord Diplock, bears a “reasonable relation to the social object of the law”.

It remains to be seen whether the minority home owners of Horizon Towers would appeal against the judgment which denied their claim of discrimination.
An Qi is a third year law student and a Senior Editor of SLR.

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.

1. 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.

2. 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.

3. 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.

4. 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.

5. 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.

6. 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.

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.

Professor Jeffrey Pinsler, S.C., is one of six new Senior Counsels to be appointed in Legal Year 2008. A leading expert in the field of civil and criminal evidence, procedure and dispute resolution, he most recently published Ethics and Professional Responsibility: A Code for the Advocate and Solicitor (”Ethics: A Code“), widely viewed as a groundbreaking work. Prof Pinsler is a member of the regional panel of the Singapore International Arbitration Centre, a principal mediator of the Singapore Mediation Centre, and sits on various professional committees. He is also an ad hoc District Judge of the Subordinate Courts.

You recently published Ethics: A Code. In writing this acclaimed book, what did you hope to achieve?

The Chief Justice asked me to write this book for younger lawyers who need to get to grips with the whole infrastructure of legal ethics. Presently, the regulatory regime in Singapore is interspersed among a variety of sources, including statutes, case law, and practice directions. What I tried to do was to show how these ethical rules relate to more fundamental principles, by presenting these rules in a systematic and cohesive framework.

I developed an overarching principle, from which one can extract six core principles, including the lawyer’s duty to the Court, the lawyer’s duty to the client, lawyers’ duties to each other and the lawyer’s duty to the public. These core principles each occupy one Part in the book, and can themselves be subdivided into more specific principles - the chapter principles. At the lowest level, I organized under each chapter principle the most specific rules (the ‘sub-principles’).

Hence, the Code has four levels of inter-linking principles. My purpose was to demonstrate how even the most specific rule can be linked to more fundamental principles. To my knowledge the approach is novel. The idea is to make legal ethics more understandable, so that the lawyer in practice is not just saying: “This is what I must do here”, but rather, understands the rationale of the rule. Every sub-principle has its root in the overarching principle.

Unscrupulous lawyers have hogged news headlines of late. Are the professional ethics of Singapore lawyers in a state of decline?

No, I don’t believe that lawyers are generally less moral than they used to be. Certainly, in the last year or so, there have been more disciplinary cases. I’ve looked at the history of such cases since 2001, which I referred to in my book.¹

But I think this trend is not because more lawyers are behaving badly, but because we’re taking ethics more seriously now than ever before. There have been some glaring, terrible cases, especially the David Rasif case, which have helped raise public consciousness. We also have a new Chief Justice, one of whose major concerns is to implement a more effective ethical system and to enhance the profession’s consciousness of ethics.

So it is a positive sign, to the extent that there is now greater awareness about legal ethics, and tighter enforcement. Of course, this means that there may be more disciplinary cases than in the past.

Are there any reforms you especially hope to see in the rules governing the legal profession?

It is particularly important that the statutory rules governing clients’ accounts are effective enough to prevent breaches of trust. This is a current priority of the authorities.

I also think that the Legal Profession (Professional Conduct) Rules can be improved. Some rules are quite vague. The whole approach in Singapore can be more systematic and detailed, if you compare it with codes in countries like Australia, England and New Zealand. That is one reason why I formulated the Code. Of course, the Code is not perfect, but perhaps the authorities could look at it and extrapolate, if they do amend the existing legislation.

Can, and should, legal ethics be taught - say, as a compulsory module in the law school curriculum?

I think whether legal ethics can be taught depends very much on the person’s moral perspective. If a person doesn’t care about integrity and lacks a social consciousness - there’s not much you can do. But I think that such people form a very small category. The vast majority of people have a moral sense, which can be developed, and for that, ethics education certainly has a role.

You can’t just teach rules dogmatically, however - which might pose problems for having a compulsory module in NUS. The obvious advantage of a compulsory course is that all students would be exposed to ethics.

However, student participation (through presentations and projects) is an important feature in ethics education. We have about 250 students each year, so we would need to have a lot of staff teaching to give personal attention to the students. You could do it with lectures and tutorials, of course, but that will not be as effective.

Tell us a little about your diverse professional experiences, and which ones you enjoyed most. Why not litigation?

I teach and/or carry out research every day in NUS law school. I also enjoy my role as a District Judge as my subjects are essentially practice-related. Judicial work is also appealing because you don’t take sides - you just apply the law objectively.

I have also been involved in arbitration, and appeared in court as amicus curiae (”friend of the court”). An amicus curiae has the freedom of expressing his views on the law unaffected by parties’ interests. It is a weighty responsibility, though, because the court expects a lot from you.

Ultimately, I think, “to each his own”. Some lawyers love conveyancing. Others thrive on corporate work or as legal counsel. Excitement to some is aggravation to others. As far as litigation is concerned, many lawyers don’t like it - too much pressure.

Obviously, some lawyers thrive on the pressure, and have established a reputation for themselves in court. Anything else would bore them. But I would say the majority don’t enjoy that aspect of litigation.

Recently, controversy arose over how Senior Counsels (”SC”) are selected. Should SCs be required to put in a minimum amount of court work?

My concern is an ethical one, from the public perspective. The assumption is that once you’re an SC, you’ll be getting work from a lot of people since you’re considered a top litigator. When a member of the public approaches an SC to handle a case, he or she must have the confidence that the SC has the experience to perform the work to the standard required of an SC. SCs generally command higher fees for which they must give due consideration.

If an SC is out of court for a long time and decides he wants to go back to litigation, he should inform the client that he has not been in court for some time, and perhaps charge less than other SCs might charge. It would not be fair to the client if the SC still holds himself out as a “litigation SC”, because the SC may have lost some of his quality in the meantime.

As for myself, I was not appointed on the basis of court work but on my publications (which are primarily concerned with court work) and other contributions to the Legal Profession.

In general, SCs, if appointed on the basis of their court work, must perpetuate that standing by continuing to put in court work. It may not be possible to compel SCs to meet a specific minimum requirement, because cases may not always come along. But there should perhaps be an understanding that, for a period of time after an SC is appointed, he or she should do his or her utmost to conduct court work on a regular basis.

Any gems of advice for aspiring SCs?

Integrity, hard work and a passion to contribute to the process of law in Singapore.
Justin and Zewei are associate editors of the SLR