Evidence (Amendment) Bill

Order for Second Reading read.

5.03 pm

Mr K Shanmugam: Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time." Today's amendments will enhance the court's discretion to consider relevant evidence by widening the admissibility of: (i) computer output evidence; (ii) hearsay evidence; and (iii) opinion evidence.

At the same time, other amendments deal with procedural justice including: (i) the confidentiality of legal advice to be enhanced by widening legal professional privilege; and (ii) a rule on the evidence of character in rape cases will be repealed.

The Bill has benefited from: (i) the views of professors at the Law Faculty of NUS; (ii) the 2003 consultation paper and the 2004 report on computer output as evidence by the Technology Law Development Group of the Singapore Academy of Law; (iii) the 2011 report on opinion evidence by the Law Reform Committee of the Singapore Academy of Law; and (iv) other legal stakeholders. We thank all who have contributed.

Let me now explain the key amendments. On computer output evidence, clauses 3, 7, 9, 10, 12 and 13 reform the law on computer output evidence. The current framework for the admission of computer output evidence is found in sections 35 and 36. They were introduced in 1996. Computer technology was then in its infancy. A cautious approach was therefore taken. Currently, short of agreement between parties, computer output can be admitted only if: (i) it is produced in an approved process; or (ii) it is shown to be produced by a properly operating computer which was properly used.

This is a somewhat cumbersome process not consonant with modern realities. With the benefit of experience, we can say now that computer output evidence should not be treated differently from other evidence. Sections 35 and 36 are therefore repealed. In addition, there will be presumptions facilitating the admission of electronic records. For example, where a device is one that, if properly used, accurately communicates an electronic record, it will be presumed that an electronic record communicated by that device was accurately communicated. Sounds a little circular, but it does make sense. Further, documents in the form of electronic records will be treated as primary evidence.

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Let me now move to hearsay. Clauses 5, 6, 11 and 19 deal with the admissibility of hearsay evidence. The hearsay rule provides that an out-of-court statement shall not be admitted as proof of its contents, unless the maker of the statement is produced in court. The rule has been much criticised and exceptions have been carved out. Strong views have been expressed to us that the hearsay rule should be abolished. The present amendments, however, do not go that far. There is still a core of sense – commonsense − in the hearsay rule that, prima facie , a statement should not be admitted to prove the truth of its contents if its maker cannot be cross-examined as to its veracity. What we have done is to introduce more flexible exceptions to the hearsay rule.

Section 32 is amended, so that the exceptions in that section will no longer be predicated on the unavailability of the maker. The business records exception in section 32(b) is extended. Existing exceptions under the Criminal Procedure Code 2010 will now be moved to the Evidence Act; they will now apply to both civil and criminal proceedings. The court is given a residual discretion to exclude hearsay evidence in the interests of justice. This ensures that the expanded exceptions are not abused. This is in addition to the court's inherent jurisdiction to exclude prejudicial evidence. A party who intends to rely on hearsay evidence would also have to give advance notice of his intent, in accordance with the relevant rules of procedure.

Clause 8 deals with expert opinion. Currently, expert opinion is only admissible in respect of points: (i) of foreign law; (ii) of science or art; (iii) or as to the identity and genuineness of handwriting or finger impressions. This description does not exhaust the range of expert opinion which may be helpful to the court. All points of scientific, technical or other specialised knowledge will now be made admissible. It is also provided that expert opinion is not inadmissible merely because it relates to a matter of common knowledge. This widens the cases where the court can have the benefit of an expert's views, if it so desires. As in the case of hearsay, the court will have the discretion to exclude expert opinion in the interests of justice. This is in addition to the court's inherent jurisdiction to exclude prejudicial evidence.

Next, I turn to legal professional privilege. Clauses 4, 14, 15, 16 and 17 deal with legal professional privilege. The privilege will be extended to communications with in-house legal counsel which is made for the purpose of seeking legal advice. This includes legal counsel employed by public agencies, including the Government, the Attorney-General's Chambers and statutory boards. The privilege will apply to interpreters and other persons, who work under the supervision of in-house legal counsel. These changes allow advice to be sought from in-house legal counsel in full confidence. The privilege will not protect communications made in furtherance of any illegal purpose, or prevent from disclosure any fact observed by legal counsel which shows that a crime or fraud has been committed.

Next, clause 18, on the character of sexual assault victims. Clause 18 repeals section 157(d). The sub-section provides that the credit of the victim in a rape or attempted rape case may be impeached by showing that she is of generally immoral character. This provision has existed since 1872. It is premised on antediluvian assumptions that a sexually active woman is less worthy of credit. It gives an opening for sexual assault victims to be subjected to gratuitous, traumatising and insulting cross-examination. The Office for Women's Development under the Ministry of Community Development, Youth and Sports had given us feedback that this amendment ought to be made. Likewise, AWARE also gave us feedback that this provision ought to be deleted, by making this amendment. When the amendment is made, any cross-examination of a sexual assault victim must proceed on the basis of relevance. I thank both MCYS and AWARE for raising this issue with us and helping us on this particular issue.

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In conclusion, the remaining clauses relate to definitional, consequential and other minor amendments.

These are part of the Ministry of Law's continuing law reform efforts in what is primarily a procedural Act. Sir, I beg to move.

Question proposed.

5.12 pm

Mr Hri Kumar Nair: Mr Speaker, Sir, I declare my interest as a lawyer. As a litigator, I deal with the Evidence Act a good deal. Although an important piece of legislation, a large portion of the Evidence Act remains in its original form, derived from the Indian Evidence Act enacted some 200 years ago in 1872. It is time for an update. I wish to address the proposed amendments on legal professional privilege, opinion evidence and hearsay.

On the issue of privilege: a lawyer must know all relevant facts before he can give useful legal advice. This can only come about when the client is confident that whatever he shares with his lawyer will not be disclosed to others or used against him subsequently. Confidentiality is therefore key to relationship between the client and the lawyer and the protection afforded by legal professional privilege allows for this.

Before the proposed amendment, the Evidence Act only recognised the position of practising lawyers. But for many companies, the first and critical line of advice comes from their in-house legal counsel. The Evidence Act, however, did not cover communications between such counsel and company employees. The common law filled that gap, but its application is uncertain subject to change and challenge. The proposed amendment to extend statutory privilege to in-house counsel will bring Singapore in line with a number of countries such as the United Kingdom, Australia and the United States of America. I support it.

This is important because if Singapore does not recognise legal professional privilege in respect of in-house counsel, or leaves the position unclear, there will in some minds be a risk that such communications are not protected, whether in civil or criminal matters. This may even include the status of communications between in-house counsel from a jurisdiction that does recognise the privilege and his counterpart in Singapore. This may be a concern to MNCs which are considering locating their in-house legal department or, for that matter, any business unit, in Singapore. In any event, it does not make any sense to deny the privilege to communications to and from in-house as the rationale for according the privilege applies equally to their work.

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In this regard, I would be grateful for the Minister's clarification on how such communications will be handled in police investigations, particularly when the police raids a business premise or demands the production of material containing such communications. Will the company be entitled to refuse access to a file, whether electronic or physical, on the basis that it contains privileged material? Will the police still insist on production of the same on the grounds that the privilege is disputed or unclear?

[Mr Deputy Speaker (Mr Charles Chong) in the Chair]

I am conscious of the prospect of abuse. I remember when researching for my speech on the Tobacco (Control of Advertisement and Sale) Act, reading about the troubling practice of the tobacco industry of hiding damaging documents under the cloak of legal professional privilege. This practice eventually proved unsuccessful. But it raises questions on whether the privilege will be abused and how we can address this. How does the Ministry propose to regulate this area? And will there be provisions to punish abuse?

I have just two issues on the amendments on privilege. The amendments also recognise modern corporate structures where employees in a legal department may be employed by a single legal entity but, in fact, support several companies within a group of associated or related companies. The amendments, therefore, quite sensibly allow the privilege to exist for intra-group communications with that legal department.

However, the definition of "related companies" under the Companies Act which the proposed amendments adopt does not include the limited liability partnerships (LLPs). Could the Minister clarify whether communications between related LLPs or a company and a related LLP will enjoy the privilege in the same way and, if not, the rationale for the exclusion and whether it is intended to bring LLPs into the fold in the future?

Second, and this is a technical question. Section 128 and the proposed section 128A employ similar language but are conceptually different. As the Minister pointed out, privilege does not cover crimes or fraud conducted after the legal advisor is employed, and that makes sense because you cannot employ a lawyer and seek to cover a crime under the cloak of privilege. So, for external legal advisors, that is quite clear. After the lawyer is engaged, privilege does not cover crime he comes to know about after his engagement.

Similar language is employed for in-house legal counsel but the distinction is not so clear. We can have a situation where an in-house legal counsel is employed by a company. A fraud then occurs within that company and management wants to go to the in-house counsel and seek advice on that fraud. Surely, privilege should attach to that situation but under the wording of the Act, privilege will not cover any fraud or crime which occurs after that in-house counsel has been employed.

I think there is a conceptual difference between employing an external counsel and employing an in-house counsel. But because the same language is used for both section 128 and proposed section 128A, I think some uncertainties will arise. I will be grateful for the Minister's clarification on that.

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Next, it is on the issue of hearsay. Many of our laws and rules on hearsay are based on out-dated concerns or irrelevant principles. In the foreword to Prof Jeffrey Pinsler's book, Evidence and the Litigation Process, the Honourable the Chief Justice Chan Sek Keong recognised that many of the rules of evidence, including those related to expert opinion evidence and hearsay, are based on jury trials where evidence may have a tendency to prejudice the minds of jurors is excluded from their consideration. Different considerations should apply in Singapore where all trials are Bench trials and the finder of fact is the judge.

In proposing amendments to the law on opinion evidence and hearsay, the Ministry of Law in its press release noted that these amendments would save significant legal time and costs for litigants by preventing unnecessary technical challenges on the admissibility of certain kinds of evidence. It would also help ensure that all the relevant evidence is before the court hearing the matter, whether criminal or civil, thus enhancing access to justice. With regard to expert opinion evidence, the Ministry expressed that the current limited approach was unnecessary because our judges are capable of appreciating the subtleties of expert opinion evidence and according the appropriate weight to it. And I agree with this approach. The considerations that were applied to lay people in the 19th century who sat in the jury box were completely out of place in our legal system.

It is for this reason that I think there is some merit to re-examine whether the hearsay rule should be abolished completely. What we have introduced by these amendments are rules that allow for broader admission of hearsay evidence but keep in place some of the technical rules which may keep out some evidence. Instead of making incremental changes that leave these technical rules and then add layers of discretion, we should just do away with the rules regarding hearsay evidence altogether, as we have effectively done for the rules regarding opinion of experts. Any evidence should be made admissible as long as it is relevant. It is for the judges to decide what weight to allocate to that piece of evidence, and they are equipped to make that assessment and, in fact, do this all the time.

As noted by Prof Chin Tet Yung in an article written over 20 years ago in the Malayan Law Review, confidence is already placed in judges on a matter of admissibility, and to trust judges on admissibility and not on weight is spurious. A judge has undergone years of legal training and is entirely capable of exercising his discretion and according weight to each piece of evidence based on the circumstances of the case, factoring in considerations such as reliability, the reasons for the absence of the maker of the statement and the inability to cross-examine the maker. If the judge gets it wrong, the appellate court is there to put it right.

Prof Chin in the same article also noted that it has been argued that a relaxation of the hearsay rule will lead to a flood of unreliable evidence. He countered that this objection does not take into account the fact that at the end of the day, the judge will be looking for credible evidence and it is not in the interests of the litigant to put forward a mass of multiple hearsay statements. Lawyers are likely to rely on the best evidence possible and that may mean that hearsay evidence will usually play a secondary role. Based on my years of practice, I would agree with this.

From a broader point of view, removing technical rules should be seen as a positive development. It is often being said that not only must justice be done, justice must be seen to be done. Laws, to be effective and accepted, should be understood by the people whose lives they affect. Technical, archaic rules do not help that understanding. We should make our laws simpler. There are fewer legal minefields to navigate. Access to justice, and confidence in the legal system, will be improved.

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This proposed approach would also yield tangible benefits. For example, the rules on admissibility of hearsay evidence perpetuate the legal fiction that we find in our courts today. In a jury system, the judge decides on admissibility of evidence and if the evidence is ruled inadmissible, the jury never sees it and, therefore, it does not affect their decision or their reasoning. However, in our system, the judge who decides a case also views the evidence to decide if it is admissible. If he rules it inadmissible, he has to put it out of his mind when coming to his decision. But judges are human and this is an artificial exercise. They will remember what they saw, and it may affect their perception of the evidence. It would be better that they deal with such matters upfront and openly.

Doing away with the hearsay rule could reduce the number of appeals based on whether some evidence was improperly admitted or not admitted. It also addresses the problem that arises when an appellate court rules that a judge wrongly admitted or declined to admit evidence. The error made by the trial judge could impact how the judge considered other pieces of evidence. The appellate court then has the difficult task of deciding whether the trial judge would have ruled or applied his discretion differently if he had not made the error on admission.

So, I would propose that we simplify our laws, get rid of technical rules and make access to justice easier. With that, Sir, I support the Bill.

5.23 pm

Ms Sylvia Lim: Mr Deputy Speaker, Sir, as mentioned by the Minister in his speech, part of the rationale for the Bill is to harmonise the provisions relating to hearsay evidence for civil and criminal cases. I am concerned that the harmonisation between civil and criminal cases should not be taken too far. I agree that the hearsay rules in civil cases can be relaxed, as they are unnecessary restrictive. However, there is a justification for keeping strict rules for criminal cases.

The Ministry of Law has itself acknowledged that the rule against hearsay evidence should be retained in criminal cases where an accused's life and liberty are at stake. The law thus has a default position of requiring the best and most reliable evidence. Witnesses should attend court to give oral evidence and be tested under cross-examination. What was said outside of court should only be considered under circumstances where there is no choice, such as when the witness is no longer available or when there is an assurance that the statement made outside of court is reliable and accurate.

Clause 5 of the Bill seeks to have a common regime for admitting hearsay evidence for both civil and criminal cases. The effect of clause 5 will be to enable out of court statements to be tended in court simply if the witness is unavailable, unable or refuses to testify in court. This concept is borrowed from section 270(1) of the Criminal Procedure Code (CPC). This Bill re-enacts part of the CPC provisions pertaining to hearsay evidence, to make them applicable to both civil and criminal cases under the Evidence Act.

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Because the Evidence Act now embodies combined hearsay provisions, the Ministry is proposing under clause 21 to delete the hearsay provisions of the Criminal Procedure Code (CPC), namely, sections 269 to 277. This massive deletion is, I believe, consequential. It appears to dilute the strictness of rules against hearsay evidence in criminal cases. For instance, under the current section 270(1) of the CPC which is to be deleted, it is provided that the court can admit hearsay evidence if the witness is no longer available, "subject €¦ to the rules of law governing the admissibility of accused's statements". The significance of this qualifying phrase was an important issue in the Court of Appeal case of Lee Chez Kee and Public Prosecutor [2008] 3 SLR (R) 447. In Lee's case, the accused was charged with committing a murder with two other persons. His two co-participants had been sentenced earlier. By the time of the accused's trial, one of them had already been executed, while the other had been deported to Malaysia and was untraceable. One of them had made statements to the police incriminating the accused. The issue arose at Lee's trial as to whether the unavailability of the co-participant made his earlier statements to police admissible against Lee.

The Court of Appeal considered this point extensively. One long-standing concern was that, in general, accomplice evidence is to be treated with suspicion. After all, it is human tendency to drag others down with you or to push blame to others to exonerate yourself. Thus, our laws provide that confessions by accomplices can only be considered if there is a joint trial of all accused; if there is no joint trial, the confessions should not be considered at all. This is found in section 258(5) of the CPC, which was formerly section 30 of the Evidence Act.

The Court of Appeal needed to consider whether the hearsay provisions in the CPC allowed hearsay evidence from accomplices who were unavailable. The court noted that the equivalent of section 270(1) clearly stated that hearsay could be admitted "subject to the rules of law governing the admissibility of accused's statements". Two out of the three Court of Appeal judges found that this qualification meant that accomplice statements should not be admitted under the hearsay exceptions, even if the accomplices were not available.

Sir, section 270 is now being deleted and the words "subject to the rules of law governing the admissibility of accused's statements" are not being ported over to the Evidence Act. The net result is that there is no longer any express mention that the rules against accomplice evidence will apply when admitting hearsay statements. Is this omission intentional? Is it the Government's intention to allow hearsay evidence from dead or unavailable accomplices in a criminal trial? This is clearly a very dangerous path to go down on.

Another result of the massive deletion of sections 269 to 277 of the CPC is that section 271(1) is also deleted. This section excluded statements made in the course of police investigations from being admitted in evidence even if the witness is unavailable or refuses to testify. This section was aimed at ensuring the witnesses attend court personally, and preserved the right of the accused to confront his accusers. Is this omission also intentional? Will the amendments undermine the protection against unreliable hearsay evidence in criminal trials?

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5.29 pm

Mrs Lina Chiam: Mr Deputy Speaker, Sir, I have only a few brief comments on this Amendment Bill.

I support this Bill which modernises the law in treating documents created electronically as primary documents. I can only wish that this Amendment Bill was put before us earlier, since the relevant reports from the Singapore Academy of Law were published back in the year 2004.

As for extending legal professional privileges to other legal counsels not acting as advocates and solicitors, this also modernises the law. Legal counsels can now provide advice knowing that the advice is privileged.

Lastly, I commend the repeal of section 157(d), in which the sexual history of victims of sexual assault and rape may be used against them in court. This move is long overdue. Blaming a victim is not merely an outdated concept that only "chaste" women should be afforded legal protection, but it was simply bad law. A crime should be redressed simply because it is a crime.

5.30 pm

Mr Desmond Lee (Jurong): Mr Deputy Speaker, Sir, I would like to declare my interest as an in-house counsel. I support this Bill. The Evidence Act was enacted in 1893, and the last time it was amended was in 2003. This Bill represents the first major reform of substantive areas of evidence law in many years. I have some comments and queries on four areas of the Bill, namely: (i) expert evidence; (ii) legal professional privilege; (iii) hearsay; and (iv) the abolishment of the provision allowing rape victim's credit to be impeached by proof of "immoral" character.

Mr Deputy Speaker, Sir, in 2005 the Mississippi Bar Association in the US published an interesting but somewhat humorous article entitled "Use Caution While Handling a (Hired) Gun – Techniques for Direct and Cross Examination of Experts". The author used the Gun Safety Rules of the National Rifle Association to educate lawyers how to handle expert witnesses hired by the other side. For instance, Rule 1 states, and I quote: "Always keep the gun pointed in a safe direction, so that even if it were to go off, it would not cause injury or damage." In short, know how to point the muzzle of your opponent's expert witness so as to minimise damage to your own client's case. And Rule 4 states, and I quote, "Know how to use the gun safely. Before handling a gun, learn how it operates. Know its basic parts, how to safely open and close the action and remove any ammunition from the gun or magazine." In court, what this means is to know how to make good use of your expert witness against the other side.

In many countries, Sir, the terms "expert witness" and "hired gun" have, unfortunately, become synonymous. Some have turned "professional", using their expertise to command high fees in rendering technical or scientific opinions in court. Some are clearly biased, otherwise are far more subtle. In Singapore, as in many other jurisdictions, expert witnesses must always remain objective. Their duty is overall to assist the court. This is set out in case law as well as in Order 40A of the Rules of Court. We should not allow the phenomenon of the "hired gun" to take root in Singapore, as this will protract litigation, increase legal costs, and diminish the overall quality and standing of our legal system. The importance of ensuring accountability of expert witnesses was also highlighted by some speakers during the Forensic Science Conference in 2009.

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I would therefore like to ask the Minister if there are any plans to strengthen the deterrence against expert witnesses who are clearly biased, who obfuscate issues and who needlessly complicate legal proceedings. For instance, can the court be given the power in the Rules of Court and in the Criminal Procedure Code (CPC) to order such witnesses to pay costs? Those who are professionally regulated in Singapore or abroad may be referred to their professional bodies for investigation and disciplinary action. These witnesses may even also be placed on a watch list, so that if any litigant wishes to ask them to give expert evidence in future, they must first obtain leave of court. Wherever possible the Court and the parties should endeavour to agree on and instruct one set of court-appointed experts. To ensure that our judges are in the best position to assess expert evidence, our Judiciary should also continue its efforts to acquaint and train judges on areas where expert evidence is given, such as DNA evidence.

I now turn to the amendments on legal professional privilege. I welcome these amendments, which extend the privilege to communications with in-house legal counsel, but have the following queries. First, the existing and amended provisions on legal professional privilege do not appear to protect people who seek legal advice from legal clinics manned by volunteer lawyers or law students. I wonder if this could be reviewed for possible future amendment as we are currently emphasising and encouraging lawyers and law students to serve the community at pro bono legal clinics.

Second, and this is related to the first point, is it clear whether the law adequately covers the following situations such as where lawyers act pro bono for clients, whether on their own accord or under the Criminal Legal Aid Scheme and, secondly, when legal officers from the Legal Aid Bureau or its panel solicitors give legal advice to, and act for, people under the Legal Aid and Advice Act?

Third, the existing section 128, the new section 128A and the amended section 131 do not appear to cover the situation where clients seek legal advice from foreign lawyers or from law firms overseas, for instance, during cross-border transactions. Litigation may subsequently ensue, here or abroad. Should the Act be amended in the future to cover this situation in view of how globally "plugged in" our economy is?

Fourth, do the existing and amended provisions cover the situation where entities do not employ in-house counsel or engage external lawyers, but who have legal advisors or honorary legal advisors onboard whom they consult? These include charitable, civic and religious organisations as well as many societies, clubs and associations that may not have the resources to engage external lawyers or maintain in-house counsel for day-to-day legal matters.

Fifth, while there is case law that suggests that material that is subject to legal professional privilege is not susceptible to seizure by law enforcement agencies, would the Minister consider at some point in time whether such extra-curial privilege should be codified in the law or at least reinforced in guidelines and codes of practice for law enforcement agencies? This will give people the assurance that their communications with their lawyers will not be seized from the law firm premises or their in-house legal departments without due cause.

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I would also like to ask the Minister two queries that arise from the Report of the Law Reform Committee on Reforming Legal Professional Privilege, published in October last year. First, following the clarity provided by the Court of Appeal in the 2007 judgement of Skandinaviska Enskilda Banken vs Asia Pacific Breweries , some legal commentators observe that the privilege, which comprises legal advice privilege and litigation privilege, is in part set out in case law and in part set out in the provisions of the Evidence Act. This makes the area of law complex and the Law Reform Committee has fittingly recommended that both components be neatly codified in the Act, which will then allow the courts to develop the privilege within the parameters of statute. As it stands, the courts have to test the case law on litigation privilege for consistency with the codified provisions before they can apply them.

Second, the majority of the Law Reform Committee recommended extending legal advice privilege to material that is prepared by a third party, for example, an accounting firm for a client for the dominant purpose of seeking legal advice, but which is ultimately not laid before the lawyer. In my view, doing so will bring the law up to speed with the complexity of modern commercial transactions. I quote the Report:

"The significance of these questions is greater the more complex the documentation which must be prepared before legal advice is possible. Where the legal advice to be sought requires sifting through voluminous documents and other information not readily available, it will be common for the client to prepare working documents or summaries or other information for submission to the legal adviser €¦ More exceptionally, such documents will not be exchanged but are also created so as to facilitate the client in familiarising the legal adviser with the nature, context and implications of the facts."

I would therefore like to ask the Minister if there are any future plans by the Ministry to relook at these useful proposals.

I move now to the hearsay amendments, and I have four brief technical points. First, clause 5(d), which introduces new subsection 32(1)(j)(i). This introduces the CPC hearsay exception where a statement is made out of court by a person who is now dead. This limb effectively subsumes existing section 32(1)(a), which is a narrow exception for statements made by a person when it relates to the cause of his death. Would there still therefore be a need for subsection (1)(a)?

Second, existing subsection (1)(c) may be too narrow an exception to the Hearsay Rule. Why should it relate only to the statements made against the maker's pecuniary or proprietary interest or when it exposes him to potential criminal prosecution or a suit for damages? How about reputational risks, or exposure to the risk of administrative or disciplinary action, for example? The principle underlying this exception to the hearsay rule is that when an out of court statement is made by a person against his own interests, then the reliability quotient of that statement rises, hence its admissibility. My recommendation is to amend this limb so that it refers principally to statements made against the interests of the maker generally and leave the rest as illustration or examples to demonstrate what it means.

Third, to ensure that the law on hearsay remains up-to-date and nimble, would the Minister consider at some point incorporating a residual power for the court to recognise other categories of hearsay exceptions? This can be a mirror opposite of the new subsection (3). This will ensure that the laundry list in subsection (1) does not become closed. For example, section 3(1)(c) of the South African Law of Evidence Amendment Act 1988 allows the court to admit hearsay evidence in the interest of justice, after considering various relevant factors.

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Fourth, new section 32(3), which gives the court a residual power to exclude hearsay evidence in the interest of justice. I would recommend that, instead of creating narrow safety valves in the provisions on hearsay and also in the provisions on expert evidence in the new section 47(4), why not create a broad statutory power in a standalone provision of the Act allowing the court to exclude, in the interest of justice, any evidence that would otherwise be relevant and admissible under the provisions of the Act. This would put existing case law on a firm statutory footing.

Finally, I turn to the abolishment of section 157(d), which currently allows accused persons to try to impeach the credit of rape victims by showing that they are of immoral character. I welcome this development. However, I note that the transitional provision in clause 23 retains this rule for cases that are started or pending before the date of commencement of the provision that abolishes the rule. As this is a rule of procedure, and an archaic one at that, would the Minister consider implementing this retrospectively to the date this Bill is enacted in Parliament as opposed to the date that the provision is brought into force in the future?

In conclusion, Sir, I am heartened by the hard work of the Ministry of Law and its legal policy division in reviewing the recommendations by the Singapore Academy of Law's Law Reform Committee, assiduously consulting stakeholders and the public and proposing appropriate amendments for the consideration of this House. This cooperation and symbiotic relationship is essential to build an effective, responsive and progressive law reform system in Singapore. Sir, I support the Bill.

5.43 pm

Mr Vikram Nair (Sembawang): Good evening, Mr Deputy Speaker, Sir. Thank you for allowing me to speak on this. The Evidence Act, I think, as acknowledged by all speakers before me is an ancient Act. I think it started with the Evidence Ordinance of 1893 and was, I think, updated largely based on the Evidence Act of 1872. Now, many of the rules here were naturally developed in the era jury trials. I think the main purpose of an Evidence Act is two-fold. On the one hand, you want to get all the relevant evidence before a judge so that the judge can make the best possible decision. And that argument will allow a permissive view of evidence, meaning you should allow as much evidence in as possible. The countervailing interest it has to strike is to protect the interest of parties involved to make sure that it is only relevant evidence that is permitted against them. In an era of jury trials, that is especially important because prejudicial information may be based on hearsay, and that can still be very damaging.

It is in this respect that I have three comments to make. The first is on the liberalisation of many aspects of the rules for evidence. I think there are at least three examples of this. One is narrowing the scope of the Hearsay Rule; second is permitting computer output more generally; and third is allowing a broader range of expert evidence to be admitted.

Broadly speaking, what this means is that there will be more information before the judge which the judge would have to consider in making a decision. I also hear Ms Sylvia Lim's concern earlier on that in relation to criminal law, for example, maybe we should keep stronger admissibility rules in order to protect the accused. This is the tension I struggled with for a while. But the reason that I came down in favour of a more discretionary approach in the end was because, ultimately, if we trust the judge to make a decision on the admissibility, then that same judge can decide, "Look, I have admitted hearsay evidence but, at the same time, I would give it less weight." In a criminal case, in particular, the standard of proof is beyond reasonable doubt. So if a judge has to go on the basis of hearsay evidence alone, then the judge would be very slow to find beyond the reasonable doubt that the crime was committed.

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I would also say that, having practised in arbitration for the last couple of years, the rules of evidence, and certainly as it is stated in the Evidence Act, are not that strictly enforced by most arbitration tribunals. And quite often, hearsay evidence is admitted. But the reason it does not result in very great injustice is because the arbitrators are able to give the appropriate weight to evidence. And when they make findings of fact, they would obviously give more weight to direct evidence. Lawyers, likewise, know that direct evidence is more persuasive. So, on balance, I am in favour of taking a more liberal approach to allowing evidence, provided, of course, we trust the judge to either exclude evidence that they may find prejudicial which they have the power to do, or, alternatively, just give it less weight and not make a conviction on that ground.

The second point I would like to address is the abolition of section 157(d) of the Evidence Act. I was quite heartened that support for this has been almost unanimous, especially from the men in the House, and I think that is quite right. This is essentially the section that actually goes against the grain of allowing more evidence because the abolition of this section means that people who are accused of rape would not be allowed to impinge the character of the accuser. The reason why I think it is all right to allow less evidence in this particular section is because it protects the victim. More often than not, victims of rape would be reluctant to come forward anyway and having their entire previous sexual history brought up in court would definitely be an even greater deterrent. Removing this rule is quite timely and it is definitely a move in the right direction.

Let me now make a third point since everyone here is unanimous that rape victims should be protected. This is actually a different section, but I am just flagging it hopefully for consideration by this House at a future date. It is the abolition of section 375(4) of the Penal Code. I understand that that would probably come under the Ministry of Home Affairs rather than the Ministry of Law. I am just flagging that. This section is commonly known as the marital immunity to rape. What that means is that if a man were to commit sexual violence – I would not use the word "rape" because it is not rape – on a woman without her consent, and they happen to be married, then that is an absolute defence. But there are some limitations now. The law has been cut back so that if the couple are separated, that is no longer a defence. But the fundamental rule is still there. I think the main reason for abolishing this rule is that violence against women, non-consensual sex, is really the same, whether or not that happens in marriage or outside marriage. By abolishing the rule though, what we actually do is we basically say that violent sex against women, even in the confines of marriage, is unacceptable. I understand that this is a controversial issue. One of my good friends was actually behind the "No to Rape" campaign, which was a campaign against the section, and I was myself a little bit sceptical at first. So let me maybe deal with some of the arguments that the sceptics of abolishing the rule might bring up. I think the chief concern they could have is that there might be an increase in the number of false cries of rape, that when a marriage goes wrong, the woman might make a false allegation of rape. But I think the answer to this is that false allegations of rape are punishable anyway, and if that is the real mischief we are concerned about, then perhaps we should either enforce those rules tighter or perhaps make stricter rules against that. But that is not a reason to not offer protection to women who are married. I think it is possible to deal with that particular concern.

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I understand that this is a controversial issue and it is not before the House today, and there are probably other arguments as well, including what the duties of parties in a marriage are. But I will just leave that on people's minds for a future date. Although we are ending on this rather unromantic topic of rape, I would like to wish everyone a happy Valentine's Day.

5.50 pm

Mr K Shanmugam: Sir, I thank all the Members who have spoken. Mr Kumar spoke on the admissibility of hearsay evidence. He agrees that the hearsay rules should be reformed. But his suggestion of reform is, in fact, complete abolition, instead of piecemeal reform. His view is that the use of hearsay evidence should be left entirely to the discretion of the courts. The amendments proposed by my Ministry give the courts more discretion. Should we go further and completely abolish the rule? It is actually a fair point. Across the world, there is intense debate in many common law jurisdictions. South Africa, for instance, has abolished the hearsay rule altogether, giving the courts full discretion to admit or exclude hearsay in both civil and criminal proceedings. That approach has, however, not been without difficulties in practice. Some jurisdictions, after having considered the rule very carefully and whether it should be abolished, have decided to retain the rule.

What we seek to achieve is to try and rationalise the rule in the context of the developments, but fully accepting – and I say this to Mr Kumar and Members of the House – that this is not the end point. These amendments are not cast in stone. Mr Kumar has been in practice, others have been in practice and I have been in practice. I hear what Ms Sylvia Lim has said. And we will have to take seriously the suggestions and consider our experience as we go along. This set of amendments represents today what we believe to be the best balance that we can strike between the use of helpful hearsay evidence and the risk of presenting unreliable evidence before the courts. The net result of these amendments will be that the courts will have a broader but still structured discretion to deal with hearsay evidence.

Mr Desmond Lee agrees with our approach but raised a number of suggestions and refinements to the hearsay provisions. He first queried on section 32(1)(a) which provides the well-known dying declaration exception for hearsay evidence should be deleted in light of the new section 32(1)(j) which provides the general hearsay exception when a witness is dead or unavailable. There is an overlap between the two exceptions, a substantial overlap, I accept. If we started de novo today, I think there is a very strong case for saying we ought to have only one of the two provisions. But the reason why we decided to leave these two provisions alone is that there is really a very substantial body of case law not only from Singapore but around the world which has guided our courts. We would lose something by deleting when the courts have been able to get guidance on both provisions. As for Mr Lee's suggestion that the scope of section 32(1)(c) which provides the existing hearsay exception for statements made against the interests of the maker should perhaps be broadened, we will consider that suggestion. As I said, the current amendments are not cast in stone and we will consider whether there should be further amendments to broaden the definition of what amounts to against the interests of the maker of the statement.

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Mr Lee also suggested giving the courts a residual power to recognise new categories of hearsay evidence. He says this will ensure that the categories of admissible hearsay evidence under the exceptions are not closed and can grow over time as the justice of the case requires, and he referred to the South African legislation. But that really would be as good as abolishing the hearsay rule, which is what South Africa has done. I have indicated why we do not want to take that approach.

Mr Lee's fourth point was on the courts' general power to exclude prejudicial evidence, and queried if such a power should be made a statutory power in that it applies across all admissibility provisions. The courts' discretion to exclude hearsay or expert opinion evidence in the interest of justice, as set out in the Bill, is – and I emphasise this – in addition to its general power to exclude prejudicial evidence at common law. Such a general power stems from the courts' inherent jurisdiction, and our preference is to leave that unlegislated. Let us see how the courts exercise this power, whether it creates problems or whether it works well, and we will keep this under review.

Ms Sylvia Lim raised her fundamental point, even though she made it as a number of different points, is her concern that by harmonising civil and criminal cases for the hearsay exception rules to both civil and criminal cases, are we taking it too far, would evidence which is prejudicial to the accused now be admissible, and would that weaken supposedly the administration of justice and lead to – I suppose the point is only valid if, ultimately, it leads to – convictions which should not have been made in the interests of justice.

The short answer – I will give a general answer and then deal with the specific points that Ms Lim made – is I have made the point that there are contrasting arguments around the world as to whether we should have the hearsay rules or, in fact, abolish them altogether. Mr Hri Kumar argued strongly for the rules to be completely abolished. I do not think Mr Hri Kumar thinks that that would affect the administration of justice. The reason is simple. There is a strong argument to say that all relevant evidence should be presented to a court. Bear in mind the hearsay rules and other such exclusionary rules really developed in the context of jury trials and that juries will not be able to look at such evidence and weigh carefully the difference between direct evidence and hearsay evidence and give weight to one and give less weight to another, and it is really an assessment of the probative value of the evidence versus the prejudicial value of the evidence. The feeling was, in the context of hearsay in the context of criminal cases, the prejudicial impact on juries would outweigh the probative value. So, one should not take a sort of black-and-white approach to it. The black-and-white approach that should be taken is to the fundamental principle that the judge must at the end of the day be satisfied beyond reasonable doubt on the guilt of the accused, and we should set out clearly what the law disapproves of, which is evidence obtained by coercion and various categories which the law has set out. But when it comes to issues like hearsay, then there is the question of a judgement call. The structure we have put up is that we have set up some safeguards. We also give the overriding jurisdiction to the courts to exclude evidence, both in civil and criminal cases. So the courts continue to have that discretion. In fact, they are expressly given that discretion through these amendments. And do not forget that, even if the evidence is allowed in, there is the question of weight. The court could say: "This is relevant. I allow it in, but I give it very little weight."

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Let me refer to a specific example to illustrate what I mean. There is a famous Australian case in 1989 called Walton v The Queen . There was a statement by a three-year-old child. It is a famous and controversial case. The child's father was accused of murdering the child's mother. What happened is that the deceased handed over the telephone to the child and the child said "Hello, Daddy", which the witness heard. The witness gave that evidence in court. The child was considered to be too young to give evidence.

Now, look at the balance of interest. There is evidence that the child said on the phone, "Hello, Daddy", which I supposed would potentially allow someone to infer that the person on the other side of the line was his father. You have the woman who had been murdered. You have the interest of society in making sure that the person who committed the crime is found guilty. You have the interest and the rights of the accused that he not be found guilty except and unless the evidence is proven beyond reasonable doubt. In those circumstances, should such evidence be admissible? The court in the Australian case held the evidence to be inadmissible. It has been highly controversial. Could there be an argument that in the context where you have a hard-bitten, experienced judge hearing the case, you should allow that evidence but leave it to the judge to decide what weight is to be ascribed? Perhaps, very little. And perhaps in appropriate cases, as our amendments made clear, the evidence should be excluded altogether.

What we are doing now is not therefore to allow in what was previously not allowed but to give the courts the discretion to sieve through the evidence to see which part should be allowed if the judge believes that to be in the interests of justice in the particular case. We should not approach the cases and the evidence as a series of technical hurdles for the prosecution to jump. We must also remember that there is an interest of society in allowing relevant evidence, and that the judge is best placed to decide on what is relevant. We, in Parliament, should of course set out the framework. I accept that. The fundamental purpose behind this is not to change the ultimate golden thread which is that, in every case, the judge has to be satisfied beyond reasonable doubt. It is to give him greater access to evidence when he or she believes that is going to be useful, and he still has the position on weight.

Specific points that Ms Lim made can be referenced by me going through specific clauses. The amendments do not simply expand the scope of admission of evidence, as Ms Lim notes. In some cases, they reduce the scope as well. Let me illustrate.

There are at present some categories of evidence which are admissible in criminal cases but not in civil cases. For example, written records are presently more readily admissible under the Criminal Procedure Code (CPC) which applies to criminal proceedings only, rather than the Evidence Act which applies to both criminal and civil proceedings. This is largely an anomaly; a matter of legislative history because the hearsay provisions of the Evidence Act are much dated and go way back while the hearsay provisions in the CPC were enacted in more modern times. And so the amendments seek to align the hearsay provisions. We have taken care to port over the hearsay provisions including the safeguards which are set out in the CPC. For example, how or in what context the hearsay evidence is referred to. If we look at the amendments to section 32, we now have a provision which ports over the reference to a person who is compellable but refuses to give evidence, or a person who is dead or cannot be found. There is also bringing over of paragraphs (a) to (j) of subsection (1), where a person makes an oral statement at the hearing of another person who at the request of the maker of the statement, puts it into writing. This is ported over from a contemporaneous records exception in section 270(2) of the CPC. And subsection (3) gives over-riding jurisdiction to the court to exclude evidence even if it falls within the exceptions. That is an important safeguard that we have introduced. Subsection (5) gives the court the discretion to assign the appropriate weight to hearsay evidence. Section 274(2) of the CPC, 274(3) of the CPC − all these now have been transported over.

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There is one other point I would like to make: Ms Lim's reference to the Court of Appeal's decision in the Lee Chez Kee v PP [2008] 3 SLR (R) 447 case on accomplice evidence; and on statements made to police, whether they would be admissible. Again, I come back to my central point. It does not mean that they are automatically admissible. They are only admissible if the court is satisfied as to why the maker cannot be produced and is also satisfied that there is some probative value and is also satisfied that the interests of justice require the statement to be admitted, and then the court decides on the weight to be accorded to such evidence.

Let me now turn to legal professional privilege. Mr Kumar touched on three issues. First, the application of the privilege in the context of search and seizure by the police. In particular, he queried about the situation whether privilege can be claimed or disputed during a police raid. Second, the possible abuse of the privilege provisions; and, third, the scope of section 128A(4).

On the first issue, I should first clarify that the Evidence Act relates largely to the admissibility of evidence for court proceedings. The amendments do not seek to deal directly with the privilege against search and seizure. That has to be dealt with under common law, the CPC and the other relevant statutes. I would say this though. The privilege is generally provided for in legislation as an exception to the relevant statuary power to search and seize. On Mr Kumar's specific queries pertaining to the operation of the privilege on police raids, I appreciate the point that clarity may be needed on how privileged documents can be protected and disputes over privilege resolved in such raids. But today's amendments do not touch on that procedure or operations. It is an issue that we will be looking at when we next review the CPC which will be soon. This should also answer Mr Lee's question on what we intend to do for such extra-curial privilege.

As for the abuse of privilege, the amendments provide very clearly that privilege does not prevent the disclosure of communications made in furtherance of illegal purposes or any fact observed by legal counsel which shows that a crime or fraud has been committed. Unless I have misunderstood Mr Kumar, he can clarify later. Also, anyone who conceals evidence not properly subject to privilege would be perverting the course of justice which under section 204A of the Penal Code is punishable up to seven years' imprisonment.

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On Mr Kumar's third issue concerning the scope of section 128A(4), he queried why the privilege for legal counsel is extended to companies and their related corporations but such benefit is not extended to limited liability partnerships and their related entities. These concerns have been raised by accounting firms who feel that they would be disadvantaged by the provisions. We are aware of the accounting firms' concerns. They have written to us. My Ministry is in touch with them. The current extension of privilege to related corporations in section 128(4) is a concession to corporate reality. Many MNCs operate under a group of related companies and the Companies Act has a definition of "related corporation". No similar definition exists in the Limited Liability Partnerships Act.

The suggestion is that there be a definition of direct or indirect ownership to be used to determine legitimate related entities of limited liability partnerships. That goes well beyond the scope of today's amendments and we felt that that needed more careful study. We need to be able to establish a clear nexus between the entity employing the legal counsel and the related entity claiming privilege, or run the risk that the provision will be abused to hide communications or material that should be rightly disclosed, be it for investigation, inspection or transparency. We would look carefully at the points made by the accounting profession and the points made by Mr Kumar, to see whether there need to be some amendments to the limited liability partnerships issue.

Mr Lee also raised a number of questions generally concerning the scope of the Evidence Act. He wanted to know what the legal professional advisor in section 131 included. Would it include advocates as well as in-house legal counsel? Will that mean communication with foreign lawyers is excluded from privilege? I would clarify that the main intention behind section 131 is to expand the definition of legal professional advisor to include in-house legal counsel and there is no intention to affect privilege or deal with privilege between foreign lawyers and their local clients. That remains to be dealt with by common law.

As regards Mr Lee's suggestion to adopt the Law Reform Committee's recommendation in their Report on Reforming Legal Professional Privilege to extend legal privilege to materials provided by third parties for the dominant purpose of seeking legal advice, we could look into this in the future. But any extension of privilege to third parties who are not lawyers or legal counsel needs to be dealt with carefully because of the prospect of abuse.

Lastly, on Mr Lee's suggestion to codify litigation privilege, there are presently no plans to do so but we can look into this.

Next, if I can move on to address the points raised by Mr Lee on expert opinion. Mr Lee does not take issue with the amendments but raised a number of suggestions relating to judicial training or dealing with biased expert witnesses and how they should be subject to sanctions. I think they relate primarily to how courts should deal with expert witnesses who come to court not so much as to assist the court but to advocate their clients' cases. That is improper. Again, thankfully, we have judges not juries who should be able to look at the witness and make a decision as to whether he is a true expert or an advocate for his client's case. There is some merit in looking at whether we should put in some rules on the issue of making the expert witness bear costs himself, but it is probably better dealt with by the courts. We will look at it with the courts and see what, if anything, ought to be done.

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On credit of rape victims in section 157(d), I think that is generally welcomed by all Members. What would happen as a result of the amendment is not that previous history would automatically be inadmissible but rather it is left to the courts to decide when it should be admissible. That depends on the issue of relevance. It is just that we should not legislatively provide that certain issues will be relevant.

Finally, on Mr Nair's comments regarding the issue of marital rape, I think that issue falls outside the purview of the present Bill as he himself recognised. That has got to be dealt with by the Ministry of Home Affairs. What I can say is when I was wearing that hat, the NGO "No to Rape" saw me as well. I found many of the arguments they put forward worth looking into. They made good points. I will certainly pass over Mr Nair's comments to the Ministry of Home Affairs.

Finally, Mrs Lina Chiam generally welcomed the amendments but her point was why has it taken since 2003, when the technology committee put forward its report on computer output evidence. I think the real point is that we have been slow about it, which is what she is seeking to make. There are a number of reports that are put forward by the Law Reform Committee as well as other committees. Some we took immediate action on. Then there are some like this on computer output. In 2003/2004, when the report was looked at, the prevailing view was the treatment or the requirement for computer evidence to be treated with extra caution and the greater number of requirements to show that it was properly produced was considered to be important. Over time, it has been reviewed a number of times by the Ministry together with the other stakeholders. We have sought to make the amendments and feel that now we are sufficiently confident with the usage and we do not need these extra safeguards. So, committees can come forward and put forward reports but we still have to apply our judgement to say, "Are we ready? Is it better to stick with the time-honoured approach to evidence and not change too quickly? Let us see how it operates in practice before we move." We also look at the practice of other jurisdictions and we have decided this is an appropriate time to move. Sir, I think I have covered all the questions.

6.17 pm

Ms Sylvia Lim: Thank you, Sir. I have got three clarifications for the Minister. First, will the Minister confirm – which is, I think, the thrust of his response to my concerns – that the effect of this amendment is to actually undo the ruling of the Court of Appeal in Lee Chez Kee's case as far as the courts ruled that evidence from accomplices were not being jointly tried, could not come in under the hearsay provisions, but now this Bill changes that to allow that to happen?

Second clarification, does the Minister not agree that accomplice evidence has inherent dangers of being unreliable and that it has a higher risk of fabrication compared to evidence from other witnesses?

Third clarification, does the Minister not agree that this Bill would have the effect of lowering the bar of protection for the accused in a criminal case because, pursuant to the judgement in these cases, a trial judge would not have been able to look at the statement from an accomplice if he is not being jointly tried? But now the Bill provides the position that the judge can look at the statement and decide whether or not to exclude it. So from that point of view, there is a lowering of the protection for the accused against unreliable hearsay evidence.

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Last of all, Mr Deputy Speaker, I would like to record my grave reservations about this aspect of the Bill.

Mr K Shanmugam: Taking Ms Lim's three questions, will I confirm that the effect of the amendments undo the decision in Lee's case? No, because the provision as amended would continue to give the court discretion at two levels. One, the threshold, whether it is to be admitted at all; and, two, whether once it is admitted, what weight is to be given.

Second question, would I agree that evidence of accomplices carries a higher risk? I would agree that, as a general principle, it carries a higher risk. And I emphasise general principle, which is why the court dealing with the issue on any specific case is better placed than Members of this House or myself to make general pronouncements.

And, third, does this Bill lower the bar of protection for the accused in criminal cases? What it does is it allows the court to consider relevant evidence. Ms Lim added on the phrase "it lowers the bar of protection" by allowing the irrelevant and unreliable evidence in. Absolutely not, unless we do not trust the judges. Because if it is irrelevant, as a matter of law, it is inadmissible. If it is unreliable, then it should not be admitted. By definition, the judge applies the law, irrelevant and unreliable evidence should not be in in the first place. What it does is this − bearing in mind the case law, that in some cases, most lawyers who are in practice will agree that hearsay evidence could be relevant. Should we have artificial rules which exclude it de facto upfront, without letting the courts have some discretion? That is the question. Ms Lim argues for that. I suggest that we should trust our judges and should let them decide on whether evidence is indeed reliable or unreliable. You can have compelling hearsay evidence, which the judge might want to look at and consider, and counsel will have the opportunity of addressing it. Let us not take an approach which is an all-or-nothing approach. It is the interests of justice that we are all looking at. There is much to comment on an approach where we clearly lay out that there is a framework within which the judge will consider, and he must ask himself whether the interests of justice require the admissibility of the evidence in the first place. And if it does, what weight will he ascribe to it. Those are my answers to the three questions.

Mr Hri Kumar Nair: Mr Deputy Speaker, the Minister has asked me to clarify the point I raised, if I may. It really goes towards the wording of the proposed section 128(a), and really the concept of employment. Perhaps I can illustrate in this way: the current section 128 relates to privilege of communications with the advocates and solicitors, and section 128(2)(b) says "nothing in this section shall protect from disclosure any fact observed by any advocate or solicitor in the course of his employment as such showing that any crime or fraud has been committed since the commencement of his employment". Quite clearly, the purpose of this section is to deal with what the advocate and solicitor sees or hears after he has been engaged by his client. And if he should see or hear or know about the commission of any crime which was committed after his engagement, then clearly privilege does not apply.

The potential problem is that same language is now being employed for section 128(a) in relation to in-house counsel, and the term "employed" is also used. So I read now section 128(a)(ii) which says, "nothing in this section shall protect from disclosure any fact observed by any legal counsel in an entity in the course of his employment as such counsel showing that any crime or fraud has been committed since the commencement of his employment as such legal counsel". Section 128 for advocates and solicitors deals really with specific engagement for a particular issue. Section 128(a)(v) deals with the in-house legal counsels' general employment.

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Let me give a scenario where some uncertainties will arise. Assuming a in-house legal counsel has been employed by a company, and he is there to give general advice. Subsequent to that employment, the management of the company discovers a fraud within the company – in other words, a fraud which is committed after the commencement of employment of in-house legal counsel – if that management with the knowledge of that fraud should go to an advocate and solicitor for advice, clearly that communication will be privilege. Should they go to the in-house counsel, under section 128(a), that communication may not be privilege. I think that is the difference, which I suspect, the Act is intended to cover. And that may well be the consequence of a plain reading of the proposed section. I hope I have clarified the positions.

Mr K Shanmugam: I think Mr Kumar's question is whether in the first place that communication is not protected from disclosure. If you look at subsection (2), it makes it clear that if it is fraud that such in-house legal counsel observes in the course of his employment from the time he has been employed, and he observes that any crime or fraud has been committed since then, then that is not protected from disclosure. So quite clearly, anything that he observes which amounts to a crime or fraud after his employment is not protected.

Mr Hri Kumar Nair: I understand that. The problem is there is one section 128(a)(iii), where it says for the purposes of subsection 2(b), it is immaterial whether the attention of the legal counsel was or was not directed to that fact by or on behalf of the entity. So, again, technically if the management comes across a fraud and then directs the attention of the legal counsel to that fact in order to get legal advice, then it would appear that privilege may not attach, or rather privilege may not be attached. And I do not think that is the intention behind this text.

Mr K Shanmugam: Where the purpose of bringing it to the attention of the in-house legal counsel is really to get advice in respect of the very subject matter. But this Act does not in any way supersede the common law. And if advice was sought in those circumstances, that would in any event, in our view, would be covered by privilege, and, if clarification is needed, we will make sure it is clarified.

Question put, and agreed to.

Bill accordingly read a Second time and committed to a Committee of the whole House.

The House immediately resolved itself into a Committee on the Bill. – [ Mr K Shanmugam ].

Bill considered in Committee; reported without amendment; read a Third time and passed.