Delivered in Parliament on 4 November 2020
Mr Speaker, I rise in support of the Motion.
Sir, Singaporeans pledge to build a democratic society based on justice and equality. I believe Ms Parti Liyani’s case has evoked such strong and widespread reactions because justice and equality are instinctive values that all Singaporeans believe in and cherish deeply.
Ms Sylvia Lim’s Motion identifies fairness and independence as cornerstones of our criminal justice system. Where prosecutorial decisions and processes are concerned, justice demands fairness and independence both in reality as well as in perception. It is a trite saying in law that justice must not only be done, it must be seen to be done.
I will speak on two topics today. One focuses on fairness, the other focuses on independence.
I will speak first on the Prosecution’s duty of disclosure and propose that its common law disclosure obligations be codified in the Criminal Procedure Code.
Thereafter, I will speak on the bifurcation of the AG’s roles, so that they are held by two persons and not one.
Part I: Criminal Discovery and Non-Disclosure – The soft underbelly of Injustice
First, the Prosecution’s duty of disclosure.
Sir, the matter of non-disclosure by the Prosecution of evidence that is favorable to the Defence has been the subject of much judicial attention this year. Before getting to this year’s cases, let me give some background.
This House passed amendments to the Criminal Procedure Code (CPC) in 2010 which included formalization of the Criminal Case Disclosure Conference procedure. Before that, there was no statutory framework for discovery in criminal matters in the State Courts. Prosecutors had overwhelming evidence in their hands compared to the Defence. For example, on many occasions, a previously withheld statement of the
accused would be sprung on the Defence during trial to impeach the accused’s credibility, forcing the Defence to throw its litigation strategy out the window.
After the framework for criminal discovery was enshrined into law, one MP in this House said this was akin to the criminal justice system “moving out of the dark ages”.
But I would say that we were still in some shadows, as the CPC amendments did not require the Prosecution to disclose material such as witnesses’ statements that might help the Defence.
This changed in 2011 with the Court of Appeal’s judgment in Muhammad bin Kadar and Anor v Public Prosecutor  3 SLR 1205 (“Kadar”). The Court ruled that the Prosecution must disclose to the Defence any credible and relevant unused material that would be favorable to the Defence’s case. This was an excellent development making serious inroads into rebalancing the asymmetries of evidence between the Defence and the Prosecution.
However, what I wish to highlight from Kadar is this: In Court, the Prosecution ran the argument that it should have an exclusive and unquestionable right to assess evidence and unilaterally decide whether the material was credible and relevant based on its own bona fide exercise of subjective discretion. The Court rejected this argument, saying that such a procedure would provide an unacceptably low level of accountability.
In addition, the Prosecution conceded that while it had an ethical duty to produce any evidence before the Court, including evidence inconsistent to its case, it argued that it had no legal duty to do so, citing a judicial precedent in Selvarajan James v Public Prosecutor  SGHC 171 (“James”). In James, the then Chief Justice Yong Pung How ruled that it was not for the Court but for Parliament to impose disclosure requirements on the Prosecution.
Mr Speaker, I have mentioned these arguments of the Prosecution so that this House and members of the public can appreciate one aspect of the evolution of Singapore’s adversarial criminal justice system in the recent past. Even so, the starting point is one of tremendous asymmetries of information between the Prosecution and the Defence, with the system structurally weighted in favour of the former.
Almost 10 years after Kadar, it is apposite to ask how deeply the Prosecution’s common law disclosure requirements have been internalized into our criminal justice system. In Ms Parti Liyani’s case, the lack of forthrightness of the Deputy Public Prosecutors in informing the trial court about the serviceability of the DVD player makes a similar point about fairness in an adversarial system. Crucially however, it raised the public’s eyebrows about our prosecutorial culture. That is all I will say about Ms Parti Liyani’s case as her application against the DPPs and specifically their conduct in this matter is pending.
This year’s cases
With that background, let me move on to this year’s cases on the Prosecution’s disclosure obligations. Tellingly, the year thus far has seen a number of judgments that at first blush, reveal troubling aspects to the Prosecution’s approach to disclosing statements to the Defence in spite of the almost decade-old Kadar judgment.
One significant case was Public Prosecutor v Wee Teong Boo  SGCA 56 (“Wee Teong Boo”). In Wee Teong Boo, the accused, a doctor, was convicted of outrage of modesty and sexual assault. He faced a total of 10 years imprisonment. On appeal, he was acquitted.
In its judgment released in June, the Court of Appeal ruled that the Prosecution did not make available to the Defence, documents that would have established clear and material inconsistencies in the Prosecution’s evidence. The Court of Appeal decided that the delay in disclosing one document in particular prejudiced Dr Wee, even as the Prosecution ran the argument that the document in question was irrelevant to the case.
In Wee Teong Boo, the Court of Appeal restated the Prosecution’s obligation to disclose material as this can assist the Court in determining the truth. The court reminded the Prosecution of its overarching duty of fairness, in addition to a duty to the Court and the public to ensure that only the guilty are convicted. The Court referred to a 1916 English judgment which referred to public prosecutors as “Ministers of Justice”, even as the Court of Appeal confirmed that it is neither the prosecutor’s duty to secure a conviction at all costs nor, quoting Kadar’s case, to “timorously discontinue proceedings the instant some weakness is found in the case.”
Sir, I wish to stress that non-disclosure by the Prosecution is not synonymous with suppression of evidence. But non-disclosure revelations in cases like Wee Teong Boo risk crystallizing such a public perception. Furthermore, judicial decisions on failures of the Prosecution to meet disclosure requirements can easily cause the public to lose trust in the Attorney-General’s Chambers and by extension, the criminal justice system.
To that end, the Court of Appeal’s decision in Mohammed Nabill bin Mohd Fuad v Public Prosecutor  SGHC 187 (“Nabill”) has expanded the Kadar disclosure obligations even further. For example, Kadar did not require the release of statements that were neutral or adverse to the Defence. But the Court in Nabill’s case ruled that as the statements of material witnesses would in most cases be limited, all statements, including those neutral or adverse to the Defence, should be released to the Defence as a matter of routine. Nabill’s case points to a clear recognition by the Court of Appeal of the central role of disclosure by the Prosecution in a fair and just criminal justice system.
Yet another case was reported in the mainstream media only last week. In this ongoing case, a defence lawyer is arguing that the conviction of an accused person ought to be ruled unsafe because the Prosecution did not disclose material evidence. The Defence in this particular case had earlier filed a Criminal Motion in the High Court. At this hearing, the Prosecution accepted the there had been a breach of its disclosure obligations under Kadar and Nabill, and that the trial judge had erred in concluding that a statement in question was not liable to be disclosed.
Suggestion to codify disclosure obligations
This brings me to my suggestion to this House – that the Prosecution’s disclosure obligations should be codified in the Criminal Procedure Code. Mr Speaker, a question that stands out is that since there is Court of Appeal case law, why would Parliament need to legislate the Prosecution’s disclosure obligations?
The Prosecution in its submissions in Nabill paradoxically make the argument for legislation. Tellingly in that case, the Prosecution submitted that it may not, despite acting in good faith, fully appreciate the defence the accused intends to run. And as such, the Prosecution admitted that it might and I quote, “inadvertently fail to disclose
statements which might tend to support the Defence.” The Court of Appeal considered this position as an “intolerable outcome”.
I believe the Prosecution made its point in earnest and the status quo is something for this House to contemplate upon deeply. In my view Mr Speaker, it is precisely because of the very prospect of inadvertent non-disclosure that Parliament has to legislate forthwith to prevent possible future miscarriages of justice because of non-disclosure.
The inadvertent failure – and I stress, not failure, but inadvertent failure – to disclose by the Prosecution may be better appreciated if we remember the adversarial nature of our criminal justice system. Some Defence counsel and Deputy Public Prosecutors can be far more adversarial than others, and this structural reality and such human factors are potentially a barrier against more consistent standards of the Prosecution’s disclosure obligations.
Separately, the judgments in Kadar and Nabill require that the Prosecution actively considers, on an ongoing basis its disclosure requirements. In view of the human factors alluded to earlier, can consistent standards of disclosure represent a reasonable expectation of the Prosecution’s obligations, as it would naturally be more substantively focused on its own case, especially during a trial? This is not to run down the Prosecution or imply that they are likely to fall short in their disclosure obligations more often than not.
But even so Mr Speaker, a perhaps overly sanguine expectation of consistent disclosure standards combined with the reality of inadvertent non-disclosure as admitted by prosecutors today, make it entirely plausible that we could see more future cases of non-disclosure that prejudice the Defence if a decisive legislative move is not made.
At minimum, an amendment to the CPC to codify the Prosecution’s disclosure requirements as established in Kadar and Nabill would send a powerful signal that prioritizes pro-active and early disclosure by the Prosecution at the pre-trial stage when the Case for the Prosecution is filed. This would imbibe greater confidence into the criminal justice system by virtue of far fewer miscarriages of justice arising from non-disclosure.
Mr Speaker, I would like to advance this matter further with two suggestions.
First, if the Ministry is minded to consider a legislative amendment to the CPC, it would be worthwhile to seek the inputs of the Criminal Bar and the Attorney-General’s Chambers on the ambit of documents and other material that should be made available to the Defence in the interests of justice. In 2010, the Minister for Law argued against criminal disclosure by stating that disclosure of witness statements went against public policy considerations. Kadar and Nabill have changed this position. It would be worthwhile to review the extent of disclosure that would serve the ends of justice.
In my opinion Sir, more disclosure in criminal matters cannot be a bad thing. It would allow the Court to have a fuller picture of the circumstances of an alleged crime with all the relevant evidence marshalled and admitted before the Court from both sides before deciding whether to convict or acquit an accused.
Such a regime could also contribute to a more efficient justice system with defence lawyers in a better position to advise on the prospects of success at trial. A decision by the Defence to plead guilty early would save the Prosecution time. More disclosure could also lower the prospect of “cracked trials” where the accused pleads guilty shortly after the trial begins, but after significant time and resources have already been spent by the Prosecution in trial preparation.
My second suggestion goes to leveling the playing field for the Defence, not for its own sake, but to further the ends of justice. The fact today is that even if the Prosecution discloses to the Defence witnesses’ statements that could help the accused persons’s case, the Defence still has a problem.
Under section 259 of the CPC, statements of witnesses are not admissible in Court unless certain specific conditions are met. I have been reliably informed that in cases where the Prosecution adheres to its disclosure obligations, it objects to the admission of a disclosed witness statement favorable to the Defence during trial, as it is entitled to under section 259.
Simply put, the Prosecution’s position is that if the Defence wants to use the contents of a favorable statement, it should get the witness to give evidence in Court so that the evidence can be tested. From a legal point of view this a sound argument. In practice though, it is not as simple as it sounds for the Defence. Before calling a witness, defence counsel would understandably want to interview that witness. But
what if the witness refuses to cooperate with the Defence? The option is open to subpoena the witness, but the Defence may not want to subpoena a witness if it has not had the chance to interview that witness to assess the probative value of putatively favorable evidence against its prejudicial effect. As it stands today, even with a favorable witness’s statement in hand, the Defence is effectively playing Russian Roulette should it choose to subpoena a witness without being fully apprised of the facts and circumstances that led to the making of what the Prosecution regards as a favorable statement. In extremis, an unwilling witness may turn hostile on the stand.
To achieve greater fairness before trial, my suggestion is that arrangements should be made for defence counsel to be given the option to interview witnesses whose statements are helpful to the Defence in a police station. This ought to be considered so as to reassure witnesses and for the Defence to clarify their statements before trial. Thereafter, the Defence can then decide whether to call the witness to Court.
The counter-argument against allowing the Defence to interview witnesses is that the authorities and the Prosecution should not be burdened with such a request. After all, in civil cases, the same considerations come into play for counsel. The difference however is precisely that, Mr Speaker. We are not speaking of civil cases. In criminal matters, the requirement for the Prosecution to prove its case beyond reasonable doubt, the demands of natural justice and the importance of getting at the truth of a matter in Court notwithstanding the adversarial system, require higher thresholds of fairness than in civil cases. A system that contributes to a thorough evaluation of the evidence for not just the Prosecution, but the Defence as well, would strengthen the rule of law.
As reforms to the Criminal Justice system are an ongoing process, I hope the Government can look into the matter of codifying the Prosecution’s disclosure requirements and the extent to which what further disclosure requirements ought to be made in the name of fairness and to achieve the ends of justice.
Part II: Reviewing the office of the Public Prosecutor
Sir, I now move on to my second topic which is on the role of the Attorney-General.
In order that there be greater independence in the criminal justice system that can be readily seen by the public, the Worker’s Party calls upon the government to split the office of the Attorney-General or AG into the two roles of the Public Prosecutor and the Government’s Legal Adviser.
What we are proposing is not new. The Workers’ Party called for splitting the roles of the AG in our 2020 Election Manifesto. This was also raised by Ms Sylvia Lim at the Committee of Supply Debate this year on the Attorney-General’s Chambers. Additionally, this was proposed by no less than a former Nominated Member of this House, Professor Walter Woon, who served as the fifth Attorney-General of Singapore. He persuasively argued for such a separation in an opinion piece published in the Straits Times in September 2017.
But we raise this matter again for the government to reconsider its position and consider how the current system can be improved. And it is timely to raise this again in light of this Motion.
In support of my call, I will make three points:
First, there are gaps and blind spots in the current prosecutorial structure;
Second, improvements should be made to strengthen the system both in reality as well as in public perception; and
Three, there are no robust reasons for all the roles of the Attorney-General (AG) to be held by one person.
Weaknesses in the current structure
My first point is that there is a weakness in our prosecutorial structure.
Our current structure has two key characteristics that taken together represent an area where the system can be strengthened.
One – the AG is entrusted with two roles. The first is that of being the Government’s Legal Adviser and the second is that of Public Prosecutor. As the government’s lawyer, the AG takes charge of three areas: legislation, international affairs and civil matters
involving the government, including law suits. As the Public Prosecutor, the AG is to prosecute without fear or favour.
Two – the AG has absolute discretion as to whether and who to prosecute.
Each these characteristics may or may not be a weakness in itself. But it is the combination of both these two characteristics that can compromise the system’s foundation. As the Government’s Legal Adviser, the AG’s duty is to protect the interests of the government. As the Public Prosecutor, the AG represents the public and must prosecute without fear or favour, even if it means damaging the reputation of the government of the day or prosecuting ministers or even the Prime Minister.
This duality of roles in one person brings with it a potential conflict of interest for the AG, which can create the potential for abuse.
Conflict of Interest
It is not difficult to imagine cases where the role of the Government’s Legal Adviser conflicts with the role of Public Prosecutor.
Say the employees of a government-linked company pay bribes in order to secure contracts overseas. Under the Prevention of Corruption Act, extra-territorial corruption is punishable in Singapore. However, prosecuting these employees, which has to be in open court, is likely to bring with it negative publicity against the government of the day in the local and international news media, simply by virtue of the company being government-linked. An AG might believe, in all sincerity, that the interests of the government are better served by not prosecuting the employees and as Public Prosecutor then decides not to prosecute. Clearly, the roles of the Government’s Legal Adviser and the Public Prosecutor are in conflict.
Or another example.
Say a suspect has been arrested for an offence. While in custody, he suffers a serious injury either through assault or negligence, that puts him in hospital. If this suspect is eventually charged in open court, this is likely to bring with it negative publicity against the government of the day in the local and international news media. An AG might believe, in all sincerity, that the interests of the government are better served by
making a deal not to prosecute the suspect in return for the suspect not suing the government in civil court.
Even if an AG can mentally separate the roles and prosecute regardless of the negative consequences to his client the government, the fact is that the conflict exists. We should have a system where the basis of such conflict should as far as possible, not even arise.
Conflict of interest facilitating abuse by a future government
Mr Speaker Sir, the elephant in the room is that this conflict of interest could go even further and facilitate abuse by a future government.
Again, such scenarios are not hard to imagine.
Say far in the future, a Prime Minister installs an AG who is friendly to him. At the time of appointment by the President, there is no reason to suspect anything untoward about the AG. Then, the PM commits serious offences, perhaps acts of corruption. Despite clear evidence, the AG decides not to prosecute the PM. This could be due to pressure, a desire to keep his job, for favours in return or simply because the PM and AG are cronies.
Potential abuse and pressure on prosecutors is not the stuff of fiction but a real prospect. Professor Woon in his opinion piece says that a look at the state of the world shows that pressure on prosecutors is common. There are two easily available examples, or perhaps I should call them cautionary tales. I will not say more except to say that one is a close neighbour, and the other is a major country that regularly makes the news because of its president. Both these countries have had prominent cases of their Attorney-Generals being subject to political pressure. They are both instances of how the system can become compromised rapidly, even in countries that pride themselves on the rule of law. Let Singapore not be one such country in future.
The changes that should be made to strengthen the system in reality and perception
I now move to my second point: What improvements should be implemented to strengthen the independence of the Public Prosecutor both in reality and in the perception of the public?
I mentioned the two characteristics in our system that contribute to a problem: the dual role of the AG as government lawyer and public prosecutor, and his absolute discretion in prosecutions. As it is the combination of these two characteristics that contribute to potential conflict, a number of changes can ameliorate the prospects of abuse.
Split Public Prosecutor from Government’s Legal Adviser
The first and most obvious change is to split the role of Government Legal Adviser from the role of Public Prosecutor. Neither role should be subordinate to the other and different offices should be formed. Even if no other change is made, this single change removes the possibility of a conflict of interest when one person performs both roles.
Professor Woon says that the prosecutorial function must be held by the Attorney- General, as the AG has the necessary stature, being second only to the Chief Justice in the legal hierarchy. He says the role of being the Government’s Legal Adviser, which involves handling civil matters, international matters and legislation could be given to the Solicitor-General, for example. The Workers’ Party is open to these views.
However, while this splitting of roles takes away conflict of interest, it may not be enough to entrench the independence of the Public Prosecutor.
Appointment for a fixed 5-year term
The second suggestion is for the Public Prosecutor to be appointed for a fixed term of significant length. Professor Woon suggests a term of 5 years. His reason is that this promotes stability in the office. The Workers’ Party is open to his idea of a 5-year term as we believe it not only promotes stability but also independence.
Better for Public Prosecutor not to have links with the Executive, e.g. as former political office holder
The third suggestion is for the system to eschew the appointment of an ex-member of Parliament as Public Prosecutor. Such an individual can of course be considered for the role of Government Legal Adviser.
There are two reasons for this.
First, it would be natural for a former elected MP to have imbibed the political views of the party he or she used to represent. Even if a Public Prosecutor who was previously an MP does his or her sincere best to be objective, they cannot help but be a product
of their previous beliefs which perhaps they still hold. A Public Prosecutor who was an MP of a political party and steeped in that party’s ideology for years is likely to hold certain beliefs and approach things in certain ways.
Second, if there is no connection between the Public Prosecutor and the government in power, this engenders greater faith among the public that the prosecutorial system is fair and conducted without fear or favour. Another aspect to this is that even if a Public Prosecutor is completely objective and truly able to divorce himself from his previous political beliefs and loyalties, it is possible that the public may not believe it. This is especially so in light of the Internet and the easy accessibility of the MP’s political views when in party politics.
Sir, public confidence in the independence of the system is critical. Even if there is objective independence, is there perceived independence? And insofar as public confidence and trust is concerned, perception is highly significant.
It is also noteworthy that the AG’s Chambers made it a point to release a statement that the Attorney-General, Mr Lucien Wong was not involved in any prosecutorial decisions regarding Ms Parti Liyani and that he would recuse himself from the review of the case. This is a clear indicator that the Attorney-General’s Chambers, and the current Attorney-General himself recognise that the public cares about independence and that public perception matters in reinforcing the rule of law.
Sir, the Government made its position know on this matter at the Committee of Supply debate in 2017 where the then Senior Minister of State for Law Ms Indranee Rajah responded to a cut on the Attorney-General’s Chambers filed by Ms Sylvia Lim. On the matter of the political affiliation of AG, the Government’s position was that in many first world countries, the AG was a political appointee, and these countries had deemed such a system to be perfectly proper. However, there are many things Singapore does differently to deliver effective and robust outcomes in light of unique local circumstances. The political dynamics, competitive political systems and limits to the political terms in many first world countries also operate to represent a check on political appointees. Ours has been a one-party dominant state for more than half a century. So the point of an independent Public Prosecutor free from political links would in fact buttress the rule of law and remain in step with the continued development of autochthonous legal system.
Of course Mr Speaker, no matter what is done to entrench independence, there will always be someone who is dissatisfied and who will imagine conspiracies. But in law, we invoke the reasonable person, who was in more misogynistic times, the reasonable man. What level of independence would satisfy a reasonable person?
To this, what I would forward Mr Speaker that the current system can be reviewed and improved against the prospects of perceptions of non-independence.
Ensure that the PP has criminal justice experience
The final suggestion is a short one. To strengthen the system, the Public Prosecutor should have criminal justice experience, whether as a prosecutor, defence counsel or judicial officer. Again, public perception that the Public Prosecutor is qualified for the job is critical. While this may not always be possible in all cases, a commitment to criminal law and deep desire to understand and master it is critical.
No good reason for not splitting the roles.
Let me now move on to my third point, which is that there are simply no robust reasons for not splitting the roles of the AG into two.
Ms Sylvia Lim raised the splitting of the roles of the AG at the Committee of Supply Debate for the Attorney-General’s Chambers in February this year.
Senior Minister of State for Law as he was at that time, Minister Edwin Tong responded. Essentially, his reply was that a large proportion of the public has confidence in our justice system, our system already has sufficient safeguards, and the system is working well. The implied conclusion was that it is not necessary to split the roles.
At no point in his reply did Minister Tong say either why it is a bad idea to split the AG’s roles or why it is preferable for the roles of the Attorney-General to be held by the same person.
The Workers’ Party understands that policy-making and in this case amending the Constitution often involves trade-offs and crucially an eye into the future and how a law or policy will serve situations that had not been originally envisaged and can last the test of time. However, I would argue there are no negative trade-offs in splitting
the roles of the AG into the Public Prosecutor and the Government’s Legal Adviser. From the perspective of justice and independence, there is only upside.
The only reason I can think of for the roles of the AG to be held by one person is that somehow, we lack sufficient legal talent in Singapore to find two people to fill the two roles of the Government’s Legal Adviser and Public Prosecutor. However, that is unlikely to be the case. Right now, in the Attorney-General’s Chambers there is an Attorney-General, two Deputy Attorneys-General, a Solicitor-General and a Deputy Solicitor-General. While the Deputy Solicitor-General heads the Legislation Division, there is also a Chief Counsel who leads the Civil Division and a Director-General who heads the International Affairs Division.
Re-iteration of the three points
Mr Speaker Sir, those are my three points for this topic of splitting the roles of the AG: there is weakness in the current structure and improvements should be made to strengthen the system. There are also no robust reasons for all the AG’s roles to held by one person. I support Ms Sylvia Lim’s call for this issue of the splitting of the AG’s roles to be reviewed by a constitutional commission.
Mr Speaker, let me conclude this way. Let us think of our justice system as a house which is used as a family home. The house may have stood firm for decades and the occupants may have lived in safety, but there is a flaw in the foundations. If a future occupant of that house uses it in a way that it was not meant to be used, say for commercial storage or as a restaurant, the foundations may give way, harming all occupants of the house. There is no reason we cannot fix the foundations or at the very least strengthen some pillars now.
We can move the needle on justice and independence in our legal system and in so doing, leave a more secure justice system that reinforces the rule of law in Singapore for our next generation.
I support the Motion in the name of Ms Sylvia Lim.