CRIMINAL PROCEDURE CODE BILL

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CRIMINAL PROCEDURE CODE BILL: Resumption of Debate on Question (18th May 2010), "That the Bill be now read a Second time.". – [Minister for Law].

Question again proposed.

Mdm Ho Geok Choo: Mr Speaker Sir, the Criminal Procedure Code Bill makes several amendments to the existing Code. I would like to talk about the proposed "community-based" penalties, listed under Part XVII.

The new community-based sentencing options are as follow: Low-risk offenders might face a Short Detention Order of up to two weeks, which is less stigmatising than a jail term. There is also a Day Reporting Order where the offender reports for supervision, counselling and rehabilitation on a regular basis. It can range from three to 12 months. The third option is the Mandatory Treatment Order where the offender undergoes psychiatric treatment instead of imprisonment. This order is capped at two years. These sentencing options depict a shift towards the focus on rehabilitation.

The current Code does not give sufficient powers to the Community Court Judge. As Singapore develops, her criminal justice system can no longer only rely on traditional forms of punishment like fines, jail or caning.

This change is to be welcomed, as the Community Court is capable of doing something more meaningful for the accused person. Further, once the sentence is served, it is "cleaned off" or removed from the offender's record. This helps the offender in the job-finding process as well as the integration back to society.

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I would also like to call upon the Government to look at cases where the convicted person’s crimes are not so severe as to warrant the person’s incarceration together with hardcore criminals. Putting a minor offender with a seasoned offender would only serve to harden and embitter a person who could have benefited from a community-based sentence and transform him into a valuable asset to society. This is especially so if the offender is a young person. Segregating these young and vulnerable offenders from seasoned offenders would prevent the creation of another wave of hardened criminals. Singapore society could do with less of such people. Here, I would like to draw attention to Peter Drucker’s nugget of wisdom on managing people, which seems apt here: "Any organisation develops people; it either forms them or deforms them."

However, there is the concern that while this is in line with a shift in focus towards rehabilitation and doing something meaningful for the accused, there is a danger of compromising on deterrence which has been the main sentencing principle in the Singapore criminal justice system that is keeping the crime rate low. As we know, traditional deterrent measures will significantly de-incentivise potential offenders. Playing the devil’s advocate, I would like to ask if this change will be perceived by the public as a "softening" stance on crime.

Mr Speaker, Sir, I agree that it is a good step for the Community Court to provide relevant supervision, counselling, psychiatric treatment, rehabilitation to the offender. However, I would like to query how these will be funded on top of the existing resources provided to the Community Court?

On a different note, the Singapore legal system practises the doctrine of stare decisis , the legal principle by which

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judges are obliged to obey the set-up precedents as well as sentencing options established by prior decisions. This is a distinctive feature under the common law system. I would like to query how the Ministry intends to address this taking into account the shift towards rehabilitation?

I would like to commend the Ministry for reviewing the current sentencing options and for taking steps to assist criminal offenders. This will go a long way in integrating them back into the society and to lead a meaningful life ahead.

With that, I support the Bill, Sir.

3.04 pm

Ms Ellen Lee (Sembawang): Mr Speaker, Sir, I wish to address this House on some of the proposed amendments to the Criminal Procedure Code. I can see that the Ministry of Law has taken some bold steps in this set of amendments and has attempted to move our criminal legal system progressively forward in several important areas. I speak in support of the amendments. However, I wish to draw the Minister’s attention to certain areas or aspects which I feel more clarity and certainty can be imbued into our progressive criminal legal landscape.

The new community-based sentencing options, in particular the new "Short Detention Order", "Day Reporting Order" and "Mandatory Treatment Order" are laudable and I particularly liked the fact that once the sentence is served, it is "spent record" or erased from the offender's record. It is noted that some of these options are meant to prevent moral stigmatisation. As such, it is therefore important how such options will be implemented, that is whether the hearings will be held "in camera" and whether the serving of the offence will be out of public and media view as well as the

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confidentiality of the identities of these accused persons will be protected when they are serving out their sentences in various "community" bodies.

I note that some elements of the civil discovery process are now being introduced in the criminal law arena. With the new Bill, both the prosecution and defence must now exchange documents called the Case for the Prosecution and for the Defence. This comes with certain conditions imposed on both parties and especially the defence before they are entitled to be served the relevant documents by the prosecution. This new discovery process is a major paradigm shift and will strain both the defence who will have to meet deadlines for requests and also the prosecution which, in some cases are not only the Police, but enforcement agencies and Government Ministries who carry out prosecutions. For this to be meaningful in achieving justice, especially for the defence, there should be sufficient time for both sides in the implementation of this new move. Most importantly, the roll-out should be seamless and all parties must be equipped with the procedural requirements. In fact, if the procedure can be simplified, such as in terms of using standard forms and precedents for the discovery, it will be even more expedient and cost-effective.

I take cognisance that the new Criminal Case disclosure procedure will initially apply automatically to High Court cases and the majority of offences tried in the District Court and, that for offences in the Magistrates Court, the procedure will be available through an opt-in mechanism if all parties agree to it. In my opinion, this new process of discovery should apply to all criminal hearings instead of making it an opt-in process at the Magistrates Court. This will ensure uniformity and consistency in approach. It is also worthy of note that the defence will not get the

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witnesses' statements as part of this document exchange. Perhaps the rationale for this should be better explained as it goes against the grain of full discovery.

The proposed changes will effectively remove the role of the Court as the final arbiter or decision maker as to whether an offence is compoundable. The proposed changes will grant such discretion to the public prosecutor who will also be empowered to set such terms and conditions as he thinks fit. This invites worry as most people question whether there is "excessive" prosecutorial discretion. Should it not be better to let the power and discretion remain with the Court so that the Court can make its decision based on all facts and submissions made by the defence and the prosecution?

In this Bill, private persons may now commence prosecutions before the Magistrate’s Court without the involvement of the public prosecutor for offences which are punishable by fine only or offences which carry a maximum term of imprisonment of not more than three years. Currently, many Singaporeans still do not know that they have this recourse of private prosecution available to them. Apart from having to create awareness of this right through public education, I wonder if this change will necessarily be a good thing as it will in effect be encouraging people to resort to prosecution as a means of settling a score rather than considering meditation or other non-litigation processes now in place to discourage litigation.

This constitutional right to counsel, enshrined in Article 9(3) of the Constitution, has been well entrenched. However, I believe many have argued for greater clarity in light of decisions made in our highest Courts that there is no right to be informed that one has such a constitutional right. I therefore urge that the Ministry seriously consider the right to counsel to be incorporated as an integral

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part of the CPC with detailed provisions marking the extent of the right to be informed of the right to counsel. It would be counter-intuitive to have a right to counsel without also clearly stipulating when the accused is to be informed of his right to consult a lawyer and how he can go about contacting a lawyer. This will be in line with the practice of many jurisdictions who have entrenched this right to be informed of one’s right to counsel.

In conclusion, I am glad to note that this Bill seeks to introduce many forward-looking changes to enhance and uphold fairness and justice in the criminal legal and judicial process.

Sir, I support this Bill.

3.10 pm

Mr Lim Biow Chuan (Marine Parade): Mr Speaker, Sir, allow me to declare my interest in this Bill as a practising lawyer. I welcome the move to amend the Criminal Procedure Code (CPC).

I recall many years ago when I was a law student, the law class took one year to study the Evidence Act and the CPC. These also took me many years of practice as a lawyer before I became more familiar with the CPC.

Hence, I applaud those Members who were not legally trained, had only three weeks to plough through this Bill and try to make some sense out of the massive changes to the CPC comprising 451 pages, 430 sections and six schedules.

Perhaps, the Government should consider allowing more time for Members of Parliament to read through and try to absorb the salient changes whenever the Government moves to introduce or amend entire Bills with huge content or changes.

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Sir, there are few key changes to the CPC which deserves praise.

Sir, I support the move to introduce criminal case disclosure procedure. This would require the prosecution to produce documents or what is called the Case for the Prosecution to the Defence before the trial. Frequently, criminal lawyers go for trial without adequate knowledge as to what the prosecution's case would be and whether there are any statements made by the accused which have not been disclosed to the defence counsel.

I recall one case, where my client instructed me that he did not commit the offence. After spending lots of time and effort to prepare the case, on the day of the trial, the prosecution revealed to me that my client had actually, during the course of investigation, admitted to committing the offence in his long statement, or what lawyers call the Section 122(5) statement.

When I confronted my client, he was unable to recall whether he indeed signed the confession as he could not read English. He claimed that he was not told what he had signed. As Mr Hri Kumar said yesterday, many people are unable to recall what they have said to the Police, whilst they are under stress of investigation. Had I been aware that my client had signed a confession, I would have advised him differently on whether he should proceed with his defence. And this would have saved prosecution and the Court precious time and also save the accused person additional legal cost.

This new procedure of criminal case disclosure would thus ensure greater transparency in criminal cases and would allow every accused person to have a fair chance to the best defence accorded to him or her, according to the law. There is no reason why the prosecution would be afraid of disclosing their evidence to the defence. The role of the prosecution

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should not be to secure conviction at all cost, but to ensure that any party who has committed offences is punished, according to prescribed law. In fact, Sir, I would urge the Police to give a copy of every statement signed by an accused person immediately after he has signed the statement.

There are few matters in this Part IX and X of the Bill which I would wish to seek clarification from the Minister. Section 162 (e) of the Bill requires the prosecution to produce any statement made by the accused which the prosecution intends to adduce in evidence. May I ask why is the prosecution not required to produce all the statements made by the accused? Are there any other statements which the accused had made but which the public prosecutor does not wish to show because it may weaken his or her case? Surely, it ought to be fairer for all relevant statements to be produced. The role of the prosecution should not be just to secure convictions, but to ensure that justice is done for all persons, including the accused person.

Next, may I ask why is it that conditioned statements from witnesses under Section 176(4)(d) are only required for trials in the High Court and not for trials in the Subordinate Courts?

Finally, on this part, where the public prosecutor fail to serve the case for the prosecution, Section 169(2) provides that the Court may order a discharge not amounting to acquittal. However, if the prosecution is taking its time to prosecute its case, why should the accused be penalised? If the prosecution delays proceeding with the case, for say two or three years, surely it would be difficult for any accused person to find witnesses who can recall what had happened on

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that day of the offence.

Would it not be fairer to set a time limit for the Prosecution to complete its case, failing which a discharge amounting to an acquittal should be granted?

Sir, I also fully support the introduction of community-based sentencing as provided for in Part XVII of the Bill. Sir, community-based sentencing allows the Courts greater flexibility to impose suitable punishment for minor offences. And there are many occasions where a more suitable punishment for some kind of minor offences is proper psychiatric treatment.

Likewise, I would submit that it will be beneficial for the Courts to have the power to order Community Service Order or Community Work Order if the circumstances are suitable. For example, in a neighbourly dispute, where one neighbour commits a minor offence against the other, it may be more suitable for a Community Service Order to be made instead of imposing a fine. The key question, Sir, is really whether rehabilitation can be provided for offenders who have committed minor offences.

I do have some other queries on the CPC Bill, which I would like to seek clarifications from the Minister. Section 23 is a caution statement and it provides that if a statement is made by the accused, it should be signed by him and if he does not understand English, then the statement should be interpreted to him in a language which he understands. Sir, I would urge the Ministry to consider having an independent interpreter to translate the caution statement into a language that the accused can understand. Justice must be seen to be done. Having the same Investigating Officer (IO) take the statement and then interpret the statement to the accused seems unfair. This is especially so, if the IO is already convinced that the accused had committed the offence.

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As a practitioner, I have come across cases where the accused person had signed a statement in English. However, he denied that the statement which contained a confession was ever translated to him. In such cases, the Investigating Officer said the statement had been interpreted to the accused who voluntarily signed the statement, but the accused denied that he was told about the confession before he signed. Who should the Courts believe? Unfortunately, the Courts would invariably believe the Investigating Officer. The odds are usually stacked against the accused person.

In the New Paper on Sunday, it was reported that there have been several cases in the past where police officers have strayed onto the wrong side of the law. Sir, I am not in any way suggesting that our Police Force is not to be trusted. However, the reality is that we do have rogue police officers once in a while. And if such a rogue police officer were to record a statement in a prejudiced manner, then there is a possibility that innocent citizens may be wrongfully charged, convicted and deprived of their freedom. Surely, Sir, it would be better to err on the side of caution, to require independent interpreters to witness and to explain the statement to any accused person.

Next, Sir, let me talk about admissibility under section 258 of the CPC. I thank the Minister for clarifying the intent of Explanation 2 of section 258. And whilst I accept that the contents of section 29 of the Evidence Act is somewhat duplicated in the CPC, however, whatever the reasons for section 29 of the Evidence Act, the question I have for the Minister is whether we should allow any statement made by the accused person whilst he is drunk, to be made admissible. If an accused person makes a statement whilst he is clearly drunk, surely it is a risk to admit his statement which was made when he may

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be incoherent or not in control of his senses. How is any judge able to determine how drunk the accused was, when he made the statement to the Police? How is any judge supposed to determine how much weight to be given to such statements? And many of us in this House have heard drunkards bragging about their prowess. Could anyone here say with certainty whether the drunkard was simply bragging or was he telling the truth?

Sir, section 85 of the Penal Code provide that intoxication in certain circumstances shall be a defence in any criminal charge. If the person charged did not know that such Act or omission was wrong, or did not know what he was doing, Sir, does the law recognise that there are occasions when an accused person may be insane or not in control of his senses due to intoxication? With respect, this Explanatory Note, Sir, seems to go against the principle that any statement made by an accused person should be admissible only if it was made of his own free will or voluntarily.

In similar vein, Sir, may I ask the Minister, why do we allow statements to be admissible, even though it was made in consequence of a deception practised on an accused person? Does a law like this not encourage deceptive behaviour amongst police officers? Is it acceptable for the Police to deceive an accused person as long as the end result is a conviction of the accused person? Sir, perhaps, it is also timely for the Ministry of Law to review section 29 of the Evidence Act to see whether this law is still relevant today.

Sir, let me speak about section 104, which are the duties of the surety. A couple of years ago, a few residents saw me to appeal against a show cause notice against forfeiture of bail. The accused person had jumped bail many years ago. Thereafter, this same accused person was

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arrested, jailed and later released after serving his sentence. The bailor was asked to show cause why he should not have the bail sum of $5,000 forfeited. Sir, I urge for some form of protection for such bailors, such that they do not have to show cause once the accused person has been arrested, convicted and sentenced. I would also urge the Minister to consider setting a time limit, maybe one year, for the Courts to issue a show cause notice, failing which the surety or the bailor should not be asked to carry a burden indefinitely.

May I also ask whether the burden imposed on the surety under section 104(1)(b) too onerous? How is a bailor or surety expected to keep in contact with an accused person everyday, if a six-week adjournment is granted for representations to be made? If we make the duties of a surety too onerous, then the surety is likely to say no to being a bailor. In such a case, would the accused person have to stay in remand longer until the case is dealt with?

Next, Sir, section 123 of the CPC. Frequently, when an accused person consults a lawyer, he usually does not have a copy of the charge sheet stating the essence of the charge against him. As a lawyer defending an accused person, I usually have to ask the Court interpreter for a copy of the charge sheet and, in some cases, the District Judge asks me to apply to the DPP for a copy of the charge. The criminal charge against an accused person is very serious – surely, the Police or Prosecution ought to ensure that each accused has a copy of the charge to be issued against him or her. It should be given as a matter of course instead of having the Defence Counsel ask around or being directed to apply for the charge sheet.

If an accused person appears in Court 26 and he is not represented when he

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attends Court, then he would not be given a copy of the charge sheet at all. This is an absolute waste of time, Sir, as his lawyer would have to waste time applying for a copy of the charge sheet to find out what are the charges against him.

Finally, Sir, on arrest. Section 76 of the Bill provides that there should be "no unnecessary restraint" when a person is arrested. However, everyday in Court 26, accused persons are handcuffed regardless of what offence they have committed. Is it necessary for handcuffs to be used even if the person is charged for some minor offence like, say, affray? The process of handcuffing a person reduces his dignity especially when he may be eventually acquitted. However, in the meantime, he is treated like a common criminal. Is there any intention to change this policy of handcuffing accused persons when they are in Court?

Sir, I would be grateful to receive clarifications from the Minister.

On that note, I support the Bill.

The Minister for Law (Mr K Shanmugam): Sir, I wish to thank the Members who spoke. Members have unanimously welcomed the Bill while making specific comments and suggestions. Before I deal with the specific comments, let me make a general point.

Members have generally noted how the changes in the Bill are progressive. Nominated MP Ms Sylvia Lim has noted that the Bill makes progressive changes in three important areas – pre-trial disclosure, crime-victim redress and community-based sentencing. She has also noted that a large part of her suggestions, made after we invited public consultation, has been incorporated into the current Bill. Mr Palmer said that we are moving out of the Dark Ages. Not sure if he is saying we are into the late

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Medieval period or into the Renaissance. But it is clear that he welcomes the changes.

Ms Lim's suggestions, made in response to our invitation for public responses, were similar to feedback received from various others. Members will recall that I had said yesterday that the Ministry formed a focus group which conducted extensive discussions. There was a genuine and sustained effort to obtain feedback and seriously consider it in order to put forward a Bill that will be fair. And I would say this: my Ministry as well as other Ministries, in particular Home Affairs, who are involved in the process all have a similar goal, which is to ensure a fair criminal justice system, which is what Members want. That will be a continuing exercise. We will continue to look at best practices, make changes where necessary, and seek to ensure that the system is fair and robust. Members have that assurance from us.

With regard to Mr Lim Biow Chuan's point that, perhaps, there may not have been enough time for MPs to consider this Bill, I think the Bill, in its original form, came out in December 2008 and, while it is a substantive Bill, there have been amendments since then. I think there has been enough lead time in terms of public consultations for people to consider it for more than a year. And the Bill in its current form came out more than a month ago. So, I think MPs and lawyers have had adequate time to consider the Bill. I will come back to the specific points made by Mr Lim later.

First, let me start again with the admissibility of evidence. I touched on Explanation 2 to clause 258 yesterday, before we adjourned. Let me set out the position as I understand it. I do so because this point has been raised both yesterday and again today. In law, a confession is admissible if it was made voluntarily. If it was obtained under a

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threat, inducement or promise, then it is not admissible. If the statement was made voluntarily but, say, that there was some deception in getting the statement – assume that the person was intoxicated – then the Court has to look at the facts. It has to consider whether, one, the maker of the statement knew what he was saying. This will require the Court to consider the effects of intoxication. If the person knew what he was saying, then it is admissible regardless of intoxication, ie, to throw out a statement, the person cannot just rely on intoxication. If the person did not know what he was saying, then, obviously, the statement would not be admitted.

The second point the Court has to consider is whether the statement was made voluntarily. If it was involuntary, the statement will be thrown out.

Should this be the law? If the person has spoken the truth, whilst being tipsy or intoxicated, should the statement not be admissible? I think the Courts should have the power to admit such statements as long as they are satisfied that there was no threat, inducement or promise, the statement was voluntary, that the statement truly represented what the maker intended to say and the maker knew what he was saying.

Mr Alvin Yeo asked if the deception could itself constitute a threat, inducement or promise to an accused, which could then lead to circular arguments as to whether the statement should be excluded. If the deception amounts to a threat, inducement or promise, then the statement would not be admissible. It is as simple as that. The Court has to be satisfied that there is no threat, inducement or promise. But if the deception on the facts does not amount to a threat, inducement or promise, then deception, in and of itself, will not, as the law now stands, render the statement inadmissible. That has been the law for

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the last 100 years and the Criminal Bar has not raised any objections or arguments against that law. Such a statement would be admissible as long as it is voluntary. An example is the case of Chua Poh Kiat v Public Prosecutor [1998] 2 SLR 342 . In that case, the accused had been charged with one count of trafficking of a controlled drug under the Misuse of Drugs Act. His accomplice gave two statements to the CNB, implicating the accused. At the trial, the accomplice repudiated the statements, claiming that he was high on drugs at the time the statements were recorded. A trial-within-a-trial was conducted. The trial judge was satisifed that the statements were given voluntarily and he so ruled.

So, here you have a situation where the Court then applies its mind to the facts and says, "No, it was voluntary and you knew what you were saying. You may have been slightly high but you knew what you were saying." On what basis should that statement be thrown out? I agree that you can argue it both ways, but that is the current law and I think it is justifiable. I agree that an opposite point of view could also be advanced. But the fundamental point is, we are keeping to the law as it is and not making the change which seems to be the perception that some people have gotten. On appeal in that case, the High Court found that there was no evidence of any inducement, threat or promise when he made the statements.

Although the urine samples showed traces of amphetamine, there was no evidence to suggest that he was so drugged or intoxicated as to be incoherent, ie, he knew what he was saying.

Mr Hri Kumar asked about the sub-clause in Explanation 2. This covers the situation where the recording officer fails to observe technical requirements during the questioning. Mere technical flaws will

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not render the statements obtained inadmissible if, on the other hand, as a result of improper questioning or recording, the accused contends the statement is not his, or that the statement is not voluntarily. Those are contentions that the Courts will test in deciding issues of admissibility and weight.

Mr Kumar asked if it was fair to use statements made by a person who is so intoxicated that he has not realised the implications of the statements. And the short answer is this: if the person did not know what he was saying, either because he was intoxicated or because of language difficulties, then that is not his true statement and it cannot be used against him. The Court has the task of deciding whether the maker knew what he was saying, and that the statement was made voluntarily.

That is why Explanation 2 is, in the negative, taken from section 29 of the Evidence Act. You cannot get out of a statement by simply saying that you are intoxicated. If, however, you can go further and show that you were so intoxicated that you did not know what you were saying, then, it is not a statement that can be relied upon against you.

I think some misunderstandings have risen because some Members may have conflated two different points. They have assumed that if one is intoxicated, then one is automatically incapable of speaking one's mind. The law draws and has always drawn a distinction between those two concepts. Factually speaking, it would probably depend on the degree of intoxication.

Mr Kumar also asked if I can categorically say that there have been no instances where accused have signed statements that they did not understand. How can I say that? Of course, there have been cases where accused have signed

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statements that they did not understand, and for a whole variety of reasons. And the courts have thrown out such statements. I myself have successfully argued for such statements to be thrown out. Any system operated by human beings is prone to human error. Our task is to set in rules and systems which seek to minimise those errors and, equally importantly, ensure that innocent parties do not suffer as a result of such errors.

In this context, having a high degree of professionalism among investigation officers is critical. Investigations are a critical component of law enforcement and the criminal justice system. The Ministry of Home Affairs has traditionally placed a strong emphasis on investigations in the Home Team, both in terms of selection of the officers, the resources accorded and the training provided. We also recognise that the nature of investigations will become more complex with time and greater demands will be placed on our investigators. The investigators' standards, procedures and training are constantly reviewed. The Home Team is now conducting a review of investigative competencies, training and criteria with the view to raising the bar even further for investigations, and increase the professionalism of the investigating officers. And, of course, when the matter goes to Court, the Courts have the jurisdiction to scrutinise the statements carefully.

Mr Lim Biow Chuan and Mr Hri Kumar asked if it will be more appropriate for an independent interpreter, instead of the IO, to read the accused person's statements back to him after the statements have been recorded. The Police have found it difficult in the past to require the presence of an independent interpreter in every case. The Police are now reviewing these aspects as part of a review which I have just referred to earlier on how investigations are conducted.

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Mr Lim's suggestion that the caution in clause 23 should be administered before taking any statement from the accused person is difficult to implement. The purpose of the caution is to require the accused to state the facts upon which he intends to rely in his defence, and to notify him of the consequences of failing to do so. This should only apply to persons who are charged or who have been informed that they may be prosecuted for an offence.

On a related note, Mr Kumar has asked whether police interrogation sessions should be video-taped. Alternatively he has suggested that a third party such as Counsel or Commissioner for Oaths be present during questioning. The point on video-taping has been raised before and the position taken has been stated and the reasons explained. I do not need to reprise the same points.

The idea of having an independent third party was discussed during the focused group sessions in the run-up to this Bill, which comprise the Law Society, ACLS and criminal law practitioners as well as law professors. This was discussed at length. The conclusion was that this idea was not feasible at this point in time.

Mr Palmer raised the query on the accused's "right of silence". The Court of Appeal in PP v Mazlan' s case held that the suspect need not be expressly informed of the right to remain silent when the statement is recorded from him. If, on the other hand, the accused is additionally told that he is bound to state truly everything he knew concerning the case, then that might amount to an inducement rendering the statement recorded inadmissible. We do not intend to change this position.

Ms Lee and Mr Palmer asked why an accused should not be informed of his "right to counsel". And Mr Yeo, Ms Lim

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and Mr Palmer also asked if the accused can be given access to counsel after the prescribed time limit, and Mr Lim made similar points as well.

In Singapore, the law is that the right to counsel may not be exercised immediately upon arrest but only within a reasonable period. This strikes a balance between the rights of the accused and the public interest in ensuring thorough and objective investigations. Again, this point has been raised and answered quite extensively. A recent police study showed that more than 90% of the arrested persons were released within 48 hours. The monitoring system ensures that for the rest, investigations are completed expeditiously so that there is no unnecessary remand.

Since March 2006, the police have had an "access to counsel" scheme, to grant an accused person access to counsel before his remand period ends, as long as investigations have been completed or are near completion. The scheme was formed in August 2007 and has been in place since then.

I think the real point underlying some of these suggestions is this. From the perspective of the law enforcement agency, we need to ensure that crimes are solved, that correct evidence is obtained, and people tell the truth. On the other hand, there is public interest in making sure that the statements taken are taken in a process with integrity and the statements represent the truth. So, the suggestion that lawyers should be interposed quickly and there should be other various safeguards – we have been reviewing a number of them. Some suggestions have been incorporated. For example, let us take the suggestion that you give access to lawyers immediately. What will happen? At least, in some cases, the advice given would be "don't

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cooperate with the Police". Not all lawyers are the same. Mr Kumar mentioned something to that effect yesterday.

So, is that in public interest? But, nevertheless, we accept the point that the investigative process must be one filled with integrity and access should be given as quickly as possible, taking into account the need for the investigations to be completed fairly quickly.

Mr Lim asked if there is any intention to change the policy of handcuffing accused persons in Court. An accused person is handcuffed for security reasons and to avoid risk of escape. Such an accused person may apply to the judge to have his handcuffs removed. It is for the Court to decide on such an application based on all the facts including security issues.

Mr Lim also asked why the Courts make some sureties attend hearings to forfeit their bonds many years after the accused have jumped bail. He suggests imposing a one-year limit on the Courts to issue show cause notices. He said that sureties should also not have to show cause once the accused has been re-arrested. Mr Lim, perhaps, can give us the information of these specific cases and my Ministry will then provide that feedback to the Subordinate Courts.

Insofar as the duties of the sureties in the Bill are concerned, we do not think they are too onerous. A surety has to maintain daily contact with the offender. It is also not unreasonable to require the surety to take steps to ensure that the offender does not leave the country, for instance, by taking custody of the offender's travel documents. Ultimately, the Courts still retain the discretion to take into account the totality of the facts in determining whether to forfeit the whole or any part of the bond. But, people must also understand that taking

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on the duties of a surety can have consequences and they must be aware of those consequences before they voluntarily become sureties.

Mr Lim has suggested that a copy of the charge sheet be given to the accused as a matter of course rather than requiring defence counsel to apply for it. We agree that this should be done as a matter of course. This is why the Bill now requires that the copy of the cautioned statement which includes the charge will be given to the accused person.

Mr Calvin Cheng said that cases involving voluntarily causing hurt, for instance, when persons are assaulted in public should be investigated by the police. Such victims should not have to pursue the matter on their own through Magistrates' Court complaints. Mr Cheng specifically cited a case reported in TODAY newspaper by Mr Conrad Raj where a young doctor was allegedly beaten up by six assailants at Geylang. The offence was initially classified as "voluntarily causing hurt" but subsequently classified as "grievous hurt" 10 days after an appeal. The Police have clarified some of the inaccuracies in Mr Raj's article. The re-classification of the offence as "grievous hurt" and the investigation by the Police was done a day after the medical report was produced, not 10 days. And there were two assailants. But I accept that if you are beaten up, then you are not likely to be relieved that it was by two people rather than six or eight. But the reason why "voluntarily causing hurt" is not seizable is that it comprises a wide range of acts, from minor couple disputes, family disputes, to serious incidents such as road rage.

Many cases being minor can be resolved amicably. And if it is a minor quarrel, the Police will generally not intervene. If there was a threat to public order, the Police will intervene. If there are aggravating factors or there are

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serious injuries, the Police will act. In this context, the medical report is important in their deliberations. Nevertheless, we will take note of Mr Cheng's comments on the type of cases in which there can be intervention or should be intervention.

Ms Lee suggested that the changes to private prosecutions may encourage people to resort to prosecution as a means of settling a score. The "right to private prosecution" has always existed. Previously, it was available for all magistrates' cases and non-seizable district court cases.

In this Bill, we have streamlined it to a smaller and less serious category of offences with a maximum of no more than three years. This change should, therefore, not result in an increase in private prosecution.

Mr Lim asked why the prosecution is not required to produce all the statements made by an accused person, instead of just the ones which he intends to introduce at the trial. This is incorrect.

The Bill provides that after the defence case is filed, the prosecution must serve all statements made by the accused in relation to the charge. I think Mr Lim looked at section 162. I think he did not look at section 166. That may explain his comment that the Bill is so long and, perhaps, even a year is not enough to go through it.

Mr Lim also asked why conditioned statements of witnesses are furnished to the defence as part of the prosecution case for High Court cases but not for Subordinate Court cases. For High Court cases, conditioned statements are part of the Prosecution's Case because they are used for committal hearing which precedes the High Court trial. Conditioned statements can be used in the Subordinate Courts if they are served before the hearing and parties consent to

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the use. But such statements are not prepared as a matter of course.

Mr Lim suggested that if the prosecution fails to file its case, and is taking its time to prosecute the matter, the Court should order a discharge amounting to an acquittal after a time limit.

Criminal trials are not the same as civil trials. They serve a wider public interest. Delays in filing the Case for Prosecution could be due to a variety of reasons: complex cases may require more thorough investigations; witnesses may be difficult to locate. An outright acquittal would mean that the prosecution will then be barred from prosecuting any further. The prosecution's non-compliance could have been due to reasons outside its control. I think it strikes a fair balance to give the Court the power to decide what should be done, including ordering a discharge not amounting to an acquittal.

Ms Lee and Mr Kumar asked why the discovery provisions in the Bill do not apply to all criminal trials. Currently, discovery applies to all cases in the High Court and the majority of the cases in the District Court.

The Subordinate Courts deal with about 250,000 charges a year, of which some 200,000 are departmental cases. Magistrates' Courts, in particular, deal with minor offences, the majority of which are regulatory. Discovery would not be essential in these cases and if we were to make it compulsory, it would just become a huge burden. For a Magistrate's case which is complex, parties may opt in to the discovery process.

Ms Lee asked why witness statements are not provided to the defence. Witness statements are not provided to the defence for public policy reasons. The police rely quite substantially on the assistance of the public to solve crimes.

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If witnesses know that statements that they have given in the course of investigations may be supplied to the accused for his counsel, they may not be inclined to come forward. We also cannot rule out the possibility that threats may be made to witnesses or that they may be otherwise suborned.

Mr Kumar queried whether there will be consequences for deliberate concealment of material evidence and that the State can be compelled to provide disclosure on pain of contempt. Where there is inadequate discovery given by a party, the Court can ask for an explanation and draw such inferences as it thinks fit.

The Bill does not seek to prescribe all the consequences for inadequate disclosure as it can occur in a wide range of circumstances. If documents are being deliberately withheld, the appropriate remedy should be left as a matter of judicial discretion to the Court. It should be noted that lawyers appearing in Court, whether prosecution or defence lawyers, are officers of the Court. If they deliberately suppress material evidence, they will be acting in gross breach of their duties. One cannot put forward evidence in Court while holding back other evidence which could put a different complexion on the evidence that has in fact been tendered in Court. I have no doubt that the Court will take a serious view of such conduct.

Ms Lim referred to clause 231 of the Bill, which enables a party to call a new witness or adduce new evidence after giving prior written notice. She suggests that this could provide a loophole in the pre-trial disclosure framework since there is no prescribed timeframe for doing so. This clause is necessary, as new evidence may only become available closer to the trial. For example, it may not have been available earlier on and you cannot and you should not shut that out.

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The power of the Court to allow new evidence has always existed. It is not practicable to assign a prescribed period of notice in the Bill. Parties who seek to adduce new evidence, whether prosecution or defence, must satisfy the Court that there are good reasons why they could not have produced it in the first place and why they are making the application at the time that they are doing so. The Court then has the discretion to make such directions as may be necessary on an application for new evidence to be admitted. It could grant an adjournment for the parties to consider the evidence; it may make suitable findings, depending on the reasons for the late application to adduce evidence, and for a party who had withheld evidence and did not follow the pre-trial procedure, the Court is likely to ask for a satisfactory explanation and decide what to do based on their explanation. So we should give the discretion to the Court and leave it to the Courts and trust them, rather than seeking to prescribe it upfront.

Ms Lee and Ms Lim suggested that the power to compound offences should remain with the Court, instead of the prosecution. This power of composition is consistent with the Public Prosecutor's constitutional role, which is to exercise overall control and direction of prosecutions. He exercises this power in the public interest, in line with his constitutional role. He also has access and regard to the totality of investigative evidence. It should be noted that the Public Prosecutor already has a discretion to withdraw a case or a charge at any time.

So, we should view this in two aspects: one, the prosecutor's authority to charge and bring criminal proceedings; and, two, the Court's jurisdiction to decide on the trial and impose a penalty. Conceptually, the decision whether to compound falls within the first rubric. If the Court feels that the charge should not

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be proceeded, it can make known its views to the prosecution, as Courts sometimes do. If the prosecution decides to proceed anyway, then the Court has to decide whether the charge is made out and, if so, what the penalty should be. If the Court feels that the matter is minor, that will be reflected either in the verdict (if the ingredients of the charge are not made out) or in the penalty imposed.

Assoc. Prof. Straughan, Ms Lee, Mdm Ho, Ms Lim and Mr de Souza support the initiative on community-based sentencing (CBS). I thank them. They have also raised a number of issues. Ms Lim has raised a concern that community sentences may have an unintended net-widening effect, ie, offenders who could otherwise have been let off with a warning, may now be prosecuted because of the availability of CBS orders. There should be no such effect. In deciding whether to prosecute an offender, AGC will be consulted. The decision to prosecute will be based on all the relevant facts. Some of those who would have been dealt with more severely in the past would now face CBS, and that is the purpose of this provision which Members have unanimously welcomed. Those who have faced warnings in the past will continue to receive the same treatment, but we will take note of Ms Lim's concerns.

Assoc. Prof. Straughan has sought clarifications on two issues: first, whether the Court will consider the offender's social environment when determining whether a community sentencing is suitable; and second, with reference to the case of the "Monster Dad" reported in the Straits Times, whether there are sufficient risk-assessment processes to address recidivism and how we can equip the community to handle such cases.

On the first issue, the Court, before passing a community sentence on an offender, will call for a suitability report. If

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the offender is assessed as suitable, a management and treatment plan tailored to meet his needs will be proposed to the Court. This will take into consideration the offence and the offenders' social environment such as the presence of family support. For example, in the case of a Day Reporting Order, the reporting frequency will vary according to the risk of the offender and his or her progress in rehabilitation. Where necessary, the offender and family may also undergo counselling and family-based programmes. But I do agree with Assoc. Prof. Straughan that to do all of these effectively, there must be adequate resources.

On her second point, I will make the following comments. CBS is not intended to apply to the kind of serious crimes that she refers to. On the facts of the reported "Monster Dad" case, that person or any such person will not qualify for CBS. I think Assoc. Prof. Straughan's real point probably is, how should such convicts be treated when they are released from prison and how should the risk of recidivism be assessed. In this context, the current position is that convicts are released upon serving their fixed-sentencing terms.

We have one of the lowest recidivism rates in the world but that statistic is little comfort for a victim of a person who is released. One possible approach is to have indeterminate sentences: the Court can impose a sentence of indeterminate length, in respect of a dangerous sex or violent offender and the prisoner will be released only when professionals assess that he is safe to be released. This is an approach that I have said we are studying. But I have to add that while risks can be minimised, there can be no foolproof method. And MCYS has specifically commented on the case that

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Assoc. Prof. Straughan spoke about. I do not need to go into that again.

Mdm Ho was concerned as to whether CBS will be perceived as a softening of our stance on crimes. Yesterday, I spoke about the eligibility criteria for community sentences. The net effect of the various qualifying criteria, I highlighted yesterday, is that the sentences would be limited to offenders who have not been previously sentenced to imprisonment, other than imprisonment in default of fine payment. It is also limited to minor offences for which there is no mandatory imprisonment term provided and the maximum term for the offence does not exceed three years. What these amendments do is to make available to the Courts, a wider and more sophisticated range of sentencing options.

Ms Lee noted that some community sentences are meant to prevent moral stigmatism and asked whether the implementation will serve the purpose. For example, whether the sentencing will be done on camera and whether the identities of the offenders will be protected when they serve their community sentences. I should clarify that preventing moral stigmatisation is not the primary objective. In fact, for example, for Community Work Orders, shaming may or may not be an integral part of the sentence. For Corrective Work Orders in littering cases, for example, offenders must perform their sentences in public.

A community sentence is intended to prevent the offender from being dislodged from his family, employment and society and to assist his rehabilitation. It remains a punishment. In and of itself, it cannot form a good reason for a trial to be in camera for an offender's identity to be protected. Trials must be conducted in the open. The Court exercises its discretion as to when a trial could be heard in camera and will do so in accordance with the categories listed in the legislation.

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Mdm Ho asked how the Community Courts will be funded to carry out community sentences. Each community sentencing option will be implemented by a relevant agency which will be given the necessary resources for implementation.

Mr de Souza asked if there is adequate staffing to support Community Service Orders (CSOs). MCYS, which will oversee the carrying out of CSOs, already has a pool of experienced officers to oversee Community Service Orders under the Children and Young Persons Act.

Mr de Souza also asked if there are measures to ensure that the level of management and supervision is matched to each offender. This is addressed when the offender is assessed to determine its suitability to serve a Community Service Order. If the Community Service Officer finds that there are risk areas associated with the offender that need to be addressed through counselling or rehabilitation, he can inform the Court. The Court may then decide whether to impose conditions to mitigate the risks or choose not to make a CSO in the first place. On whether there is a framework to provide adequate through care and aftercare for an offender – if a Community Service Officer finds that the offender is in need of other forms of assistance, the offender will be referred to a Family Service Centre, voluntary welfare organisations and other community resources, where appropriate.

Mr Palmer has asked why we have not adopted the conditional stern warning and the suspended sentences as part of community sentencing. The Police, in consultation with the Attorney-General's Chambers already issue conditional warnings where offenders must abide by conditions, which will include staying away from crime. If the offender breaches the conditions, he can be charged for the original offence. This is part and parcel of prosecutorial discretion and does not need to be hard coded in the Bill.

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As for suspended sentences, they run against the expectation of society that when a sentence is passed, it should be served. In such cases, where other jurisdictions have used suspended sentences, a CBS-type order will generally be more appropriate and is the approach we are taking. Rather than giving a sentence which hangs in abeyance, the Court has a jurisdiction to give a CBS Order targeted at treatment and rehabilitation, retaining the power to sentence for the breach of the order and for the offence itself. When it does so, it can probably take into account all the facts of the case and decide on an appropriate sentence.

Next, on caning. When imprisonment sentences are given in lieu of caning strokes, the aggregate of the in lieu term and the original imprisonment term imposed for the offence is allowed to exceed the maximum term of imprisonment allowed for that particular offence as well as the sentencing jurisdiction of the Court. Ms Lim asked why this was so when the previous section of the CPC restricted the Court to the maximum allowed for the offence. This amendment is targeted at the worst cases. It ensures parity in treatment between, for example, co-accused. Let me explain. Two co-offenders commit the same offence and are equally culpable. Both are given the maximum jail term for the offence. In addition, one is given caning but the other cannot be sentenced to caning. To achieve parity in sentencing, the Court is given the discretion to sentence the offender who did not receive caning, to receive an extra jail term in lieu.

Mr de Souza asked whether clause 359 is flexible enough to accommodate the possibility of a victim filing a separate civil claim if he or she should choose to do so and, if so, how the compensation granted by the Criminal Court will affect his subsequent civil claim. The clause

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does not preclude a victim from subsequently filing a civil claim against the offender. This is expressly provided for in sub-section 4, which provides that "any damages subsequently awarded by a Civil Court will be deemed to have been satisfied to the extent of the amount paid to the victim under the criminal court's compensation order".

Ms Lim's query on victim impact statements. The Bill now obliges the Courts to consider in every case, whether it is appropriate to order victim compensation. The appropriate level of compensation will be based on the victim impact statements. To facilitate this, procedures will be worked out on providing such information to the Court, in deciding the appropriate victim compensation.

Ms Lim has suggested that when an accused appeals against his sentence, without any cross-appeal by the prosecution, his sentence should not be enhanced by the Courts. On any appeal against sentence, the Appellate Court is required to consider the totality of the circumstances and must have the discretion to enhance the sentence, if it considers that the sentence is inadequate.

The criminal justice system must take cognisance not only of the accused person, but also the interests of the victim and the protection of the public. We should therefore not fetter the Court's duty to decide the punishment that fits the crime.

Sir, in conclusion, I have covered the points that have been made. I once again thank the Members for their support of the Bill. I would like to thank those Members who have given their extensive comments to us during the public consultation. We will continue to try and ensure that our criminal justice system is robust and delivers justice.

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Ms Sylvia Lim (Non-Constituency Member): Thank you, Sir. I have a few clarifications for the Minister.

First, he started off his reply by referring to me as a nominated Member. I thought we have clarified the difference between NCMPs and NMPs at last month's sitting. [ Laughter ]. I have two questions on his reply on the Bill. The first is regarding composition of offences. He mentioned that the Bill is re-allocating the consent from the Court to the public prosecutor (PP) because it is in line with the public prosecutor constitutional role to control prosecutions. But, Sir, as far as I know, that will remain unimpeded even if the power resided continuously in the Court. Meaning that at any time, the PP can still discontinue proceedings and the Court cannot stop that. My question is why is there a need to remove this power from the Court? Has there been any malfunction? Is the public prosecutor not happy about certain cases, where the Court gave leave despite the objections?

Secondly, does the Minister not agree that by removing the power from the Court to the prosecutor, there will be a loss of transparency? Right now, decisions to compound written judgments can be appealed again. Therefore, the public is in the know about the considerations. But once you move it into the hands of the PP, that transparency will disappear.

Last clarification, Sir, concerns caning. Minister replied that the allowance under the new Bill for the Court to exceed the statutory maximum punishment is in a situation where, for example, there are co-accused and both of them have been sentenced to the statutory maximum. I would like Minister to clarify whether this is the only situation where the Court would consider exceeding the statutory maximum. I think that is a cause of concern.

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Mr Shanmugam: Sir, I thank Ms Lim for pointing out that I referred to her as an NMP. It is a sensitive point from our last discussion.

Sir, on the issue of composition. The point about removing the discretion from the Courts to the Public Prosecutor, Ms Lim asked: why is there a need to remove? And whether the Public Prosecutor has been unhappy and that will there be a loss of transparency". Certainly, it does not arise because of any particular case nor has a Public Prosecutor been unhappy about any single case or at all generally. It is one of conceptual clarity. That is why the change has been made and the conceptual clarity is this: you ask yourself, what is the role of the Public Prosecutor? Public Prosecutor decides when a case should be brought to Court and prosecuted. What is a role of a Court? The Court decides the case, gives a verdict based on the facts presented to it. It also decides on the penalty to be imposed. If you see those two functions as distinct, and they should be distinct for there to be an independent trial, then the decision whether or not, if prosecution should be stopped by way of a composition, should be one that the Attorney-General's Chambers, the Public Prosecutor should exercise, rather than for the Court to intervene. The Court has got to deal with the evidence presented to it by the parties and try the case.

Ms Lim may disagree, but that is the way I see it and that is the rationale. There are no other extraneous reasons. That is how we put it forward and this was discussed in focus groups. Some people who understood the distinctions, in fact, thought that this was a much neater way of proceeding. As to whether there will be a loss of transparency, Sir, I see this word "transparency" thrown about in a variety of situations. It is a new mantra but one has got to talk about transparency in context. If there is a

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whole series of decisions taken by the Public Prosecutor, do you say every decision of the Public Prosecutor should be open to question? Should the Public Prosecutor's decision to charge also be made "transparent", to be subject to public scrutiny? That is not the way an efficient system can work. The decision as to whether or not to prosecute, whether or not to compound should be his, and should he proceed in Court, then the trial should be transparent. The evidence has to be produced in open Court. For the Court to be satisfied to convict, the case should be proven beyond reasonable doubt. The trial process is for public scrutiny. The decision to charge and to compound, these are matters for the Public Prosecutor and should be within the Public Prosecutor's discretion to be exercised as a public officer.

Now, with regard to the sentencing that could be given in lieu of caning, those are the only situations where there can be an excess of jurisdiction. The Court's jurisdiction ultimately is a matter of statute. The Court does not exercise any independent inherent jurisdiction on sentencing beyond certain quasi criminal laws like when they exercise jurisdiction in contempt and so on. Beyond that, their power to send someone to prison is derived from statute. It has to be set out in statute. They have no other jurisdiction. That is why, to give them the power to impose a sentence in lieu of caning, that has to be expressly set out.

Ms Sylvia Lim: Thank you, Sir. The Minister mentioned earlier this issue of transparency and that it is a convenient word. I have a very specific concern about this. Currently, decisions to compound, which are approved and not approved by the Court, they are reported in judgments. They can be appealed against. Everybody can read the reasons why the Court exercised its discretion this

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way or the other. By moving this decision to the DPP, that will no longer be available. I would like the Minister to confirm that this is going to be a case. I was not saying that every decision of the DPP had to be subject to public scrutiny. But the fact is by moving this decision out of the Court's hands, there will be a loss of this articulation of the reasons for exercise of discretion.

Secondly, regarding caning: could the Minister clarify whether there is any intention to articulate in some kind of tariff, for example, say how many strokes were not given translates to how many months imprisonment? For defence counsel to advise their clients, this is going to be a big grey area.

Mr Shanmugam: On the first point, I freely accept that, yes, now that the issue of composition is going to be decided by the Public Prosecutor, it is no longer a matter for the Court. To that extent, it is not going to be part of the judgment and it will not form part of the record of the Court proceedings. That is so, and that is intended to be so for the reasons I have explained.

For the second point, the current provisions in the Bill provide what is the maximum that Court can impose in lieu of a caning sentence. I should not go beyond what is set out in the statutory provision. It is for each Court to look at the facts, for example, for parity of the co-accused, and whether it is a matter of few months or few weeks, this has got to be something that is decided on a case-by-case basis by the Courts.

Sir, I beg to move.

Question put, and agreed to.

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

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

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

Mr Speaker: Order. I propose to take the break now. I suspend the sitting and will take the Chair again at 4.35 pm.

Sitting accordingly suspended

at 4.12 pm until 4.35 pm.

Sitting resumed at 4.35 pm

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[Mr Speaker in the Chair]: