CRIMINAL PROCEDURE CODE BILL

CRIMINAL PROCEDURE CODE BILL: Order for Second Reading read.

4.35 pm

Mr K Shanmugam: Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

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This Bill, Sir, repeals and re-enacts the Criminal Procedure Code, which I will hereafter refer to as the CPC.

The CPC sets out the procedures to be observed in the conduct of criminal cases in Singapore. It is a fundamental part of our Criminal Justice System.

Sir, the key principles underlying the approach we take in shaping the Criminal Justice System include the following: (1) Every person is presumed innocent. One is guilty only upon conviction by a Court. While we have specific exceptions in the law to this approach, the presumption of innocence is fundamental. (2) The procedure that is set out must be fair, and (3) the procedure must provide a system for arriving at the truth. That means that it should not be a system that leans towards conviction regardless of innocence or guilt. But it should also not be a system which gives the offender every possible technicality to escape conviction.

Each society seeks to strike a balance between the rights of society, to secure conviction of a person who commits an offence, and the rights of an individual, not to be wrongly convicted.

These amendments seek to strike the balance in a fair way. I will admit freely that there can be reasonable debate as to whether that balance has been rightly struck. There will be people who will disagree with the proposals. The procedure to be adopted for administration of criminal justice is an area where there are diverse and often contentious viewpoints. This is an evolutionary process and we will have to continue to be open to amending our criminal procedures to meet changing norms.

Consultation

In our efforts to achieve the correct balance that I referred to, we engaged in

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extensive consultations. The draft Bill was first issued in December 2008. The public were invited to give their comments. There were several responses.

We then formed the working group, comprising representatives from relevant Government agencies, the Singapore Law Society, the Association of Criminal Lawyers in Singapore, faculty members from the National University of Singapore and the Singapore Management University, as well as other legal practitioners. The Working Group was tasked to examine the proposals which were received by my Ministry in the course of public consultations. Table top exercises were conducted by the Working Group to iron out the various procedures which were to be introduced by this Bill. After the Working Group had completed their discussions, my Ministry, together with its partner agencies, continued to review and deliberate on various aspects of the Bill in light of the points raised by the Working Group.

Each and every proposal has been given due consideration. Several proposals were adopted, for instance, the accused's whole statements (instead of only portions of those statements) would be provided by the Prosecution in discovery; the Preliminary Inquiry process was retained; the concept of using "oppression" as the touchstone for determining the voluntariness and, hence, admissibility of an accused person's confession was codified and even extended to all forms of statements.

Of course, not all suggestions could be taken on board. On a number of points the various members of the Working Group had to agree to disagree, but this was after a healthy and robust discussion of various points of view and concerns. This is best summed up by what the Association of Criminal Lawyers of Singapore (ACLS), through its President,

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Mr Subhas Anandan, has told us, and I quote,

"ACLS had made written submissions to the Ministry of Law during public consultations on the proposed amendments to the CPC. Although the CPC Bill which had its first reading in Parliament on 26 April this year did not accept many of its recommendations, ACLS is pleased to note the introduction of the Criminal Case Discovery Procedure in the CPC Bill. The Disclosure Procedure requires the Prosecution to give to the Defence, apart from the charge, a summary of facts, a list of witnesses and exhibits and the statements to be adduced at the trial. This is a welcome change. ACLS also fully supports the introduction of the new community sentences in the Bill."

The Working Group deserves our gratitude for helping us with this Bill. Its members are listed in Annex I* to my speech.

Let me now take Members through the key provisions.

Increased jurisdiction of the Magistrates' Courts

Clause 7 of the Bill increases the jurisdiction of the Magistrates' Courts to hear offences which carried a maximum term of imprisonment of three years to five years instead. The jurisdiction of the District Court and the High Court remains the same.

Private prosecution

At present, the right of private prosecution is allowed in summary cases before a Magistrate's Court, or for non-seizable cases before a District Court.

Sir, as I mentioned earlier, the jurisdiction of the Magistrates' Courts is being expanded. It is therefore no longer appropriate to allow private prosecutions

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in respect of all cases triable before the Magistrates' Courts. Neither is it appropriate to tie this to non-seizable offences: some of these offences are punishable with terms of imprisonment of up to seven years.

Hereafter, pursuant to clause 11(10), private persons will be able to prosecute offences where the maximum punishment is less than three years' imprisonment, or which are punishable by fine only. Private prosecutions will be tied to less serious offences where the punishments are less severe.

Police enforcement powers

The Bill makes a number of amendments to rationalise Police enforcement powers. I will touch on two key changes: the seizure of property and Police powers of intervention.

Seizure of property

Clause 35 of the Bill builds upon the existing powers of the Police to seize property under certain circumstances, by expanding the powers to three specific classes of property: (1) Property in respect of which an offence is suspected to have been committed; (2) Property suspected to have been used or intended to be used to commit an offence – for example, dangerous weapons used to commit gang robbery, and (3) property suspected to constitute evidence of an offence, for example, bits of clothing found at a crime scene.

Property falling within the first and second classes will include not only the original property, but also any property that it has been converted into. So, for example, if a suspected watch thief has sold the stolen watch and used the proceeds to buy a computer, the Police may seize the computer instead.

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If property liable to be seized is held with a financial institution, a Police officer of Inspector rank or above may issue a written order to direct the financial institution to either deliver the property to any Police officer, or refrain from dealing in respect of such property within a specified period.

At the same time, an absolute power to freeze property in a bank account may be unduly harsh on the affected person. Hence, a person whose bank account has been the subject of a written order may apply to court for the release of such property to meet legitimate expenses. For example, the payment of basic expenses, reasonable professional fees or, in the context of a company, day-to-day running expenses.

Police powers to intervene

The previous section 111 of the CPC gave the Police powers to interpose to prevent crime.

In the new security climate, it is appropriate for changes to be made to deal specifically with issues of terrorism. While the Police currently have the necessary powers to deal with acts of terrorism, clarity is useful for officers on the ground. This is in line with the amendments to the Penal Code in 2008, when illustrations were added to sections 79 and 81 of the Penal Code to give further clarity to officers dealing with terrorism.

The new clause 63 of the Bill puts in place the following safeguards in the use of lethal force by the Police: the Police officer must have reasonable grounds to believe that a person is doing or about to do something which may amount to a terrorist act, and the use of lethal force is necessary to apprehend the person.

A definition of what constitutes a "terrorist act" is provided in the Bill.

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Criminal discovery

The Law Society, criminal law practitioners and various Members in this House, such as Dr Teo Ho Pin, Mr Alvin Yeo and Ms Sylvia Lim, have urged a reform in this area.

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Disclosure is familiar to lawyers operating within the common law system. In civil proceedings, the timely disclosure of information has helped parties to prepare for trial and assess their cases more fully.

Criminal cases can benefit from the same approach. However, discovery in the criminal context would need to be tailored to deal with complexities of criminal practice, such as the danger of witnesses being suborned.

To this end, Part IX of the Bill introduces a formalised framework obliging the prosecution and the defence to exchange relevant information about their respective cases before trial. This will introduce greater transparency and consistency to the pre-trial process.

After the charge is tendered against an accused, the prosecution is required to provide the defence with a "Case for the Prosecution". This document must include information about the facts, witnesses and evidence supporting the charge, together with the statements of the accused which the prosecution intends to rely on at the trial.

The defence is then required to serve on the prosecution its "Case for the Defence". This document will, in turn, contain information about the facts, evidence and witnesses that the defence will adduce at the trial.

After the "Case for the Defence" is served, the prosecution will then be required to furnish to the defence all other

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statements made by the accused person, documentary exhibits in the case for the prosecution, as well as the accused person’s criminal records, if any.

The framework has a number of safeguards to try and prevent abuse. The sequential nature of the process protects the interests of prosecution and defence. The onus is on the prosecution to set out its case first, with the accused’s statements that it is relying upon. The provision of all statements after the defence case is filed cuts down on opportunities to tailor evidence. At the same time, if either party refuses to file its case, or files an incomplete case, or advances an argument at trial inconsistent with its previously filed case, the Court may draw any inference it deems fit. In addition, where the prosecution fails to comply with its obligations, the Court may order a discharge not amounting to an acquittal. This approach tries to ensure that parties take discovery seriously.

The new procedure will initially apply automatically to High Court cases and the majority of offences tried in the District Court. The accused may opt out of the system if he prefers. For Magistrate’s Court cases, the procedure will be available if all parties consent.

Trial proceedings

The new clause 281 follows upon the recent amendments to Article 9(4) of the Constitution, announced and taken through by Deputy Prime Minister Wong Kan Seng in this House last month, which allows an arrested person to be produced for First Mentions in Court by video conferencing.

In line with those amendments, clause 281 of the Bill sets out safeguards in relation to the use of video conferencing. The Court will have the discretion to summon the arrested person, or consider

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the application of the arrested person to be physically produced in Court at any time before or during the First Mentions. Video conferencing will also not be used for accepting guilty pleas or passing of sentences.

To streamline the prosecution process, the Public Prosecutor (PP) will be empowered to consent to composition between parties and compound certain prescribed offences by requiring a person to pay a composition sum. At present, once an accused has been charged in Court, composition requires the consent of the Court. The new clause 241 requires the consent of the PP instead, since he has control and direction of all criminal proceedings. This follows logically from the PP’s prosecutorial discretion. Even when the proceedings are ongoing in Court, and the Court does not consent to composition, the PP is empowered to withdraw the charge in an appropriate case.

Clause 242 is a new provision which allows the PP to compound certain prescribed offences. These will be offences which do not involve specific victims, such as offences relating to damage to public property. Composition will be allowed to take place any time, even before the offender is charged in Court. This composition regime is similar to composition of minor regulatory offences by enforcement agencies.

Admissibility of statements

I now turn to the admissibility of accused persons' statements, at clause 258 of the Bill. Under this provision, the statement of an accused person is inadmissible if it is made as the result of a threat, inducement or promise which operates on his mind, such that it robs him of his free will and thereby rendering the statement involuntary. This admissibility

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test, developed by our Courts in Seow Choon Meng v PP and Gulam bin Notan Mohd Shariff Jamalddin v PP , is now codified in Explanation 1 to clause 258.

Clause 258 extends the protection of the admissibility test to all statements made by an accused person, whether made to a Police officer, above the rank of sergeant or otherwise. This plugs a gap in the existing section 121 of the Code, which confines the admissibility test only to statements made to a Police officer, but not any other enforcement personnel.

I should also comment briefly on Explanation 2 to clause 258 of the Bill, which has been the source of some degree of debate (and I think, confusion) during the public consultation and working group phases.

Explanation 2 is a reproduction of section 29 of the Evidence Act (which is now ported to the Code). Its purpose is simply to clarify that the sole test of admissibility is the absence of threat, inducement or promise as set out in clause 258. This reflects the position taken by our Courts. Thus, and I emphasise this – there is no change in the law as a result of the amendments. The only addition is sub-clause (e) to clause 258, and the main change is that the test of voluntariness is now applied to all statements and that is an extension of the rights.

However, I note from an article in the TODAY newspaper of 17th May, entitled "Criminal lawyers concerned over clause in proposed Criminal Procedure Code", that both Mr Subhas Anandan and Mr Edmond Pereira are quoted on this clause. Mr Anandan is concerned that a part of the law on what is admissible evidence is being "further entrenched". Mr Pereira has said that clause 258 was a "talking point", among the changes to the CPC. But as I have stated earlier, clause 258 does not change the law. It does not

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detract from the rights of the accused. clause 258 simply brings over a similar provision in the Evidence Act – which is already the law, and that extends it to all statements. The change is the addition of sub-clause (e). Thus, there is no real "further entrenching" of this aspect of the law on what is admissible evidence. The law is set out in black and white in the Evidence Act and that is the law that the Courts have been applying all these years. And to the extent that this clause 258 is a talking point, it may be that its current avatar in the Evidence Act has perhaps been overlooked. We had explained these points to relevant stakeholders, as well as the Law Society.

I understand now that the ACLS accepts that the real test of section 258 is whether there was a threat, inducement or promise operated and whether such threat, inducement or promise operated on the accused person at the material time, and that deception is therefore technically irrelevant. I can understand arguments that such a provision should be qualified. But it is difficult to understand arguments that object to the CPC essentially replicating a provision from the Evidence Act.

Ancillary hearings

Let me move on to ancillary hearings. Related to this year's admissibility of statement is clause 279 of the Bill, which makes provision for the conduct of ancillary hearings to determine the admissibility of statements, when any party objects to the admissibility of any evidence, which the opposing party intends to tender in any stage of the trial that Court must determine its separate ancillary hearings before continuing with the trial proper. Such illustrations are provided in this clause relating to whether or not an ancillary hearing has to be held by a Court. Ancillary hearings include trial within a trial. The clause further provides for procedures which have to be complied

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with at an ancillary hearing. In particular, evidence given an in ancillary hearing, which is relevant for the purposes of the main trial will be admissible in the main trial itself, without having to recall any of the witnesses who testified at the ancillary hearing. If the court, after hearing any submissions from parties, decides to reverse its earlier decision in admitting such evidence, it must disregard such evidence when determining whether or not to call for the defence or when determining the guilt of the accused person. The converse will apply if the Court, after hearing any submissions, decides to reverse its earlier decision in refusing to admit the evidence. Where this is the case, such evidence may be admitted in Court for the purpose of determining whether or not to call for the defence or when determining the guilt of the accused.

Appeals

Under clause 390 of the Bill, the appellate Court will be allowed to frame an altered charge and convict on it if there is sufficient evidence for it to do so based on records before the Court. The amendment is a codification of case law as decided by the Court of Appeal in Lee Ngin Kiat [1993] 2 SLR 511.

The amendments go one step further to provide safeguards should the appellate Court decide to frame an altered charge. The appellate Court is required to ask the accused if he intends to offer a defence to the newly framed charge. The appellate Court will then have to decide, with reference to the nature of the defence and the records before the Court, whether to convict him of the freshly-framed charge or to send the matter for trial in the lower Courts.

Clause 396 contains a new provision which allows both the Public Prosecutor and the defence to state a case directly on a question of law of public importance,

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from the District Court directly to the Court of Appeal. The situations where a "leapfrog", as such provisions are known, will apply are: (a) where the High Court is already bound by a prior decision of the Court of Appeal on the point of law being stated, or (b) where there is a conflict of binding authority on the High Court on the question at hand. In these situations, the legal issues, for example, binding precedent on the High Court, are more appropriately dealt with by the Court of Appeal than the High Court. A leapfrog appeal direct to the Court of Appeal would thus save parties time and cost.

To ensure that the provision is not abused, the leave of the Court of Appeal is required before a "leapfrog" is allowed. The Court of Appeal will determine whether the question of law is indeed of public importance, and whether a leapfrog is appropriate in the circumstances of the case.

Rectification of clerical errors

Clause 301 of the Bill relates to the powers of the Courts to rectify errors in their judgments. Currently, only the High Court can alter or review its judgments. To the extent that the error was a clerical one, it can be rectified at any time. Any other mistake may only be rectified before the Court has risen for the day.

The Bill extends the power to rectify errors to all Courts, including the District and Magistrates' Courts. The existing practice has been retained. For all other errors, including errors in the exercise of the Court's sentencing powers, the time in which the Court may rectify such errors has been extended to the next working day after the delivery of the judgment.

Illustrations are also included in clause 301 to clarify how the provision will

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work. For instance, where a District Court imposes a sentence of caning on a man who was 54 years old when he committed the offence in question, the Court would have made an error. Exercising its powers of rectification under clause 301 of the Bill, the Court may now revoke the sentence of caning and impose the appropriate sentence provided this is done by the next day after it had imposed the original sentence of caning.

Notwithstanding this, there is a further limit on the Courts' rectification powers. Clause 301(2) expressly states that a Court may not exercise its powers under this clause to rectify any error resulting from a sentence which the Court subsequently views as being too harsh or lenient.

Sentencing jurisdiction of the Courts

Clause 303 of the Bill increases the sentencing powers of both the Magistrates' Courts and the District Courts to align them with the recent amendments to the penalties in the Penal Code. Essentially, the Magistrates' Courts sentencing powers have been increased from two years to three years of imprisonment, and the District Court's sentencing powers will be increased from seven years to 10 years of imprisonment.

Clause 303 also increases the quantum of fines which can be imposed by the Subordinate Courts. For the Magistrates' Courts, the limit will be increased from $2,000 to $10,000; whereas the limit for the District Court will be increased from $10,000 to $30,000. The revision is necessary to take into account the increase in the purchasing power of money, since the jurisdiction for imposing fines for the District Court was last revised in 1996 and the jurisdiction for the Magistrates' Courts since 1959.

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Caning

Two main changes will be made to the provisions on caning. The first change is the imposition of a cap of 24 strokes for each occasion of sentencing or caning. The amendments will make clear that on each occasion of sentencing, a cap of 24 strokes will apply, even where the mandatory number of strokes for multiple charges could add up to more than 24. As an example, if the prosecution has, in the same set of proceedings, preferred five counts of robbery under section 392 of the Penal Code, each carrying a sentence of not less than six strokes of the cane, the Court cannot impose a sentence of 30 strokes. In such a case, the Court can only impose a maximum of 24 strokes.

Mr K Shanmugam: 5.00 pm

A similar rule will be imposed for the execution of caning. While sentences for caning can be combined, the maximum strokes for any one sitting will be capped at 24.

The cap does not apply for repeat offenders sentenced and caned over different periods of time. There is no immunity from further caning for serial offenders. This is because we cannot treat serial offenders in the same way as we do to an offender who has only committed, for example, two offences.

The second amendment relates to the imprisonment in lieu of stroke where the statutory cap of 24 strokes applies and in excepted cases.

Where an accused person would have been sentenced to an aggregate sentence of caning which exceeds the specified limit, the Court may impose a term of imprisonment of not more than 12 months in lieu of all such strokes which exceed

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the specified limit. Thus, in the example which I had used since the Court can only impose 24 strokes, instead of 30 strokes, the Court may impose an additional term of, say, eight months' imprisonment in lieu of the six strokes of caning.

Another category of cases where imprisonment would be ordered in lieu of caning would be where caning is not possible from the outset (for example, male offenders who are 50 years old and those who are medically unfit). For these categories of offenders, the Court has the discretion to impose an imprisonment term of up to 12 months in lieu of the strokes which were forgone. This will give the Court discretion in exercising parity between co-accused persons, one of whom may be caned and the other may not.

I now turn to the main change to our sentencing regime: community sentences, which I refer to as CBS, detailed in the new Part XVII of the Bill.

Rationale for having new community sentences

Our sentencing philosophy is aimed at deterrence, prevention, retribution and rehabilitation. A fair sentencing framework is one that enables the Court to deliver the correct mix of these four objectives on the specific facts of each case.

CBS gives more flexibility to the Courts. Not every offender should be put in prison. CBS targets offences and offenders traditionally viewed by the Courts to be on the rehabilitation end of the spectrum: regulatory offences, offences involving younger accused persons and persons with specific and minor mental conditions. For such cases, it is appropriate to harness the resources of the community. The offender remains gainfully employed and his family benefits from the focused treatment.

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Eligibility criteria

In line with these considerations, clause 337 of the Bill sets up the circumstances that prevent the making of a community order.

A community order cannot be made in respect of an offence for which the sentence is fixed by law or which attracts a specified minimum sentence or mandatory minimum sentence of imprisonment or caning.

Community orders, except for the community work order, cannot be made in respect of an offence which attracts a specified minimum sentence or mandatory minimum sentence of a fine.

Community sentences cannot be handed down for the serious offences which are specified in the Third Schedule to the Registration of Criminals Act. Offences which are punishable with a maximum sentence of more than three years' imprisonment are also excluded from the community sentencing framework.

Finally, a Court cannot hand down a community sentence if an offender had previously been detained or subjected to police supervision under the Criminal Law (Temporary Provisions) Act (CLTPA), detained in a Drug Rehabilitation Centre, sentenced to imprisonment, corrective training, reformative training, or preventive detention.

Community services

The Bill introduces five new types of CBS orders: (a) a mandatory treatment order (MTO); (b) a day reporting order (DRO); (c) a community work order (CWO); (d) a community service order (CSO); and (e) a short detention order (SDO).

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A Court may pass a CBS order comprising one or more of these orders at the same proceeding.

Let me highlight the key features of the various community orders.

Mandatory treatment orders

Clauses 339 and 340 provide for mandatory treatment orders (MTOs). The MTO allows the Court to order an offender to undergo psychiatric treatment in lieu of imprisonment. The period of treatment can be up to 24 months.

Before making a MTO, the Court must call for a suitability report by a psychiatrist who is appointed by the Director of Medical Services of the Ministry of Health. The appointed psychiatrist will have to assess, first, if the offender is suffering from a treatable psychiatric condition; second, if he is suitable for treatment; and third, if his psychiatric condition had contributed to the commission of the offence. If the offender does not meet any of these requirements, the Court will not be able to make the MTO.

Day reporting orders

Clauses 341 to 343 provide for the day reporting order (DRO). This order requires the offender to report to a reporting centre on a regular basis for supervision and to undergo counselling and rehabilitation. An offender may also be monitored electronically, if necessary. The duration of a DRO can be from three to 12 months. This imposes discipline and aids in the rehabilitation as the offender's progress is monitored closely.

Before making a DRO, the Court must call for a suitability report by a day reporting officer appointed by the Director of Prisons.

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However, even if the report concludes that the offender is unsuitable, the Court may still sentence him to a DRO, as the Court may take into account broader considerations. Where rehabilitation is a key consideration, the Courts would still impose a DRO, if satisfied that the offender will be sufficiently punished by having restrictions imposed, and is unlikely to re-offend if there is no significant disruption to his employment or family.

Community work orders

Clause 346 provides for community work orders. The CWO is modelled after the "Corrective Work Order" for litterbugs, but will allow for a wider range of offences and types of work to be mandated.

The type of community work will have some nexus to the offence committed. By performing work associated with the offence, the intention is to let the offender take responsibility for, and acknowledge the harm caused by his offence.

Community service orders

The Courts are currently empowered to make a community service order under the Children and Young Persons' Act, or as a condition of probation. Clauses 346 and 347 of the Bill expand the existing order to allow offenders aged 16 and above to receive a CSO as a standalone sentence or with other community orders. This would allow the offender to make reparations to the community while being punished for his actions.

The Courts will have to call for a suitability report before sentencing an offender to perform community service. The Court may make a CSO even if the community service officer finds the offender unsuitable.

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Short detention orders

Clause 348 allows the Courts to detain an offender in prison for up to 14 days. By limiting the detention period, the short detention order (SDO) is less disruptive and stigmatising than a longer prison stay. Prisons will also put in place measures that prevent first-time offenders from being "contaminated" by hardcore criminals.

Taking and forfeiture of security

Clause 349 empowers the Court to take a security from the offender or any other person to ensure that the offender complies with the community order. Clause 350 provides for the forfeiture of the security if the offender breaches the order or any of its conditions.

Breach of community order

A CBS order gives an offender a chance to reflect on his actions. The onus is on him to complete the community sentence.

Under clause 352, if the offender breaches the conditions of a CBS order, he can be summoned back to Court.

After being notified of the breach, the Court can give a warning or impose a fine of up to $1,000, while at the same time allowing the offender to continue serving the community sentence. The Court can also vary the community sentence by extending or reducing it, up to the maximum length permitted for each order. If the community sentence is not a SDO, the Court may detain the offender in prison for not more than 14 days. Lastly, the Court may revoke the community sentence and impose the traditional sentence originally mandated for the offence.

Under clause 353, if the offender is sentenced to imprisonment for a crime

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committed before the CBS order is made, the community sentence will be revoked and he will be re-sentenced. The community sentence will also be revoked if the prior offence cannot be punished with a community sentence. Otherwise, the offender will be allowed to continue to serve his community sentence.

Under clause 354, if the offender commits a fresh offence while serving a community sentence and is convicted for it, the CBS order will be revoked and he will be brought back to the Courts for re-sentencing.

Sir, I have taken the House through the main amendments to the CPC.

This Bill, although wide-ranging, should be seen as part of an ongoing evolution of our criminal justice system since independence in 1965.

In 1966, the Code was amended to mirror the practice in the UK Judge's rules to grant discretion to the Court to admit an accused person's statement which was obtained in non-compliance with certain conditions, provided the statement was made voluntarily. In 1967, offences such as rioting and unlawful assembly were made non-bailable. In the wake of a number of cases in 1969 where accused persons were acquitted by juries despite there having been clear evidence of guilt, the jury system was abolished. The 1970s saw amendments to allow sentences of corrective training for young offenders who showed signs of embarking on a lifetime of crime. Amendments were also made in respect of an accused person's "right of silence" by permitting the Court to draw adverse inferences in appropriate circumstances. In 1984, the period in which a suspect could be detained when arrested without a warrant was extended from 24 hours to 48 hours to give the police adequate time to

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complete investigations. Later, in 1995, vulnerable witnesses were allowed to give evidence via video-link to shield them from direct confrontation with the accused person.

The present Bill represents a significant point in the developmental continuum of our criminal justice framework. As our society continues to evolve and mature, our criminal procedure will have to be reviewed and updated to keep pace. In the process, we will continue to examine developments and innovations occurring elsewhere in the world.

For instance, the Law Society has highlighted that the United Kingdom introduced, in 2003, an indeterminate sentencing regime, known as "Imprisonment for Public Protection", where Courts are empowered to incarcerate an offender for as long as he or she is assessed to be a danger to the community, rather than for a fixed term of years. Similar regimes exist in Australia, New Zealand and Canada. We will study this, and other reforms, in close consultation with our criminal justice stakeholders. We will continue to search for solutions which work for us.

Sir, I beg to move.

Question proposed.

5.12 pm

Mr Alvin Yeo (Hong Kah): Mr Deputy Speaker, the proposed amendments to the Criminal Procedure Code constitute the second instalment of an extensive overhaul of our criminal laws, following on the changes to the Penal Code a few years ago.

This is a major move and a welcome move as these statutes have not been subject to major review for a number of years. The changes that the present Bill

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seeks to make are also welcome as they update our criminal law regime to fit modern conditions and also strike a better balance between the rights to the prosecution and the defence.

Among the many changes, two stand up. The first relates to the introduction of a greater range of community-based sentences. This recognises that the circumstances of offenders can vary greatly and better permits the Court to pass the sentence that befits not just the crime but the offender's condition and culpability. In this way, there is a better likehood of the offender being rehabilitated and being reintegrated into society after his release.

The second major change is the new Criminal Case Disclosure Procedure which requires both the prosecution and the defence to exchange information of the case that they are mounting, in particular, the defence will obtain copies of all the accused person's statements, the lack of which has long been a bugbear of criminal defense lawyers. Amidst all these bouquets is, however, still more that could be done to further refine the criminal justice system.

I would highlight two areas.

Clause 258 seeks to make clear that the sole test for excluding an accused person's statement is whether it has been caused by any inducement, threat or promise. That, in itself, in my view, is not objectionable. However, it is the explanation that follows on upon it that do give rise to certain queries. In particular, Explanation 2A states that the statement would not be excluded merely because it was inconsequence of a deception practised on the accused for the purpose of obtaining it. This might be seen as condoning or even encouraging investigating officers to deceive or trick an accused into making a statement which may inculpate himself.

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I appreciate that the Ministry has assured the public that there is no incentive for police officers to practise any deception, but that begs the question.

If there is no such incentive, why do we need an explanation to say they can do so and still have the accused's statement admitted? Could not such a deception itself constitute an inducement or promise to an accused which may then lead to certain other arguments as to whether it should be excluded? More significantly, is this the sort of message we want to send to the public that a statement enlisted through the police deceiving an accused can and will be used against him?

In that regard, I note from his speech that the Minister has said that section 258 merely codifies the existing law and the issue of any deception is perhaps technically relevant. If that is the case, then I would invite the Minister to consider dropping that part of the explanation and leave the application of the test which is based on any inducement, threat or promise to be applied by the Judges who are well equipped to apply such a test.

My other area of concern relates to the continuing absence of any time limit for police investigations after which the accused gets access to a lawyer. Right now, the investigative agencies have the discretion as to when the accused person can consult a lawyer which is when they decide they have completed their investigations. This could be weeks or even months after the investigation commences. And the threat or the risk that one is concerned with is a situation which has been perhaps anecdotally related where a police officer takes out an accused from the cell, questions him, does not get the answers he wants, puts him back in the cell for a few days, takes him out later, still does not get the answers he wants, back in there he goes again. And this could go on for some

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time. I should make clear that I am not talking about imposing a short period of 24 or 48 hours or getting to the situation that you see in Hollywood legal dramas, with the accused refuses to answer any questions unless he gets to see his lawyer.

I appreciate and support the importance of allowing our investigative agencies to go about their work without the accused playing legal games with them. But there must be some limit to this as the right to obtain legal advice is a fundamental one for our citizens. Should there not be some fixed time period? It could be a matter of days or a week, after which the accused would have the right to see his lawyer even if the investigations are continuing. This period could itself be subject to further extension by a Court if good reason is shown.

The well-deserved reputation for efficiency and competence of our police investigators can surely cope with this constraint which is after all in the interest of fair play. We are all supportive of the vital role that our law enforcement agencies play in the prevention and detection of crime. But it is a mark of a civilised society that it can strike the right balance between the interests of the State and the rights of the individual.

I hope these areas of concern can be reviewed by the Ministry and changes made if not in this Bill, then in the not too distant future.

Mr Deputy Speaker, I support the Bill.

5.18 pm

Ms Sylvia Lim (Non-Constituency Member): Sir, this Bill before Parliament has now undergone some changes from the initial Bill which was floated for public consultation. I am happy to note that

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some points in my written submission to the Ministry have been taken into account in this revised version.

The Bill makes some progressive changes in three important areas: pre-trial disclosure framework, crime victims’ redress and community-based sentences.

First, pre-trial disclosure framework. The Bill provides for more balance between the State and the defence in preparing for criminal trials. The much-awaited statutory framework for pre-trial disclosure is now out. There will now be more disclosure between the prosecution and defence in criminal cases – the prosecution will now be required to furnish to the defence all statements made by the accused at any time, even those only useful to the defence. This is an improvement from the current position when such important evidence may be withheld from the defence and the Court. Likewise, the defence has disclosure obligations to reveal its defence before trial.

While the framework is a significant step forward, I have one concern about this. Under the new section 231, it is still possible for either side to call witnesses or produce exhibits not disclosed at the pre-trial disclosure conference, so long as "prior notice" is given in writing to the Court and the other parties to the case. It is not stated how much notice must be given. Will this be a loophole for either party not to disclose everything at the pre-trial conference and introduce new evidence at the last minute? If so, this will defeat the purpose of the framework.

Second, crime victims' redress. For too long, the criminal justice system has focused on punishing the offender, and neglected the harm and damage caused to the crime victim. Thus, the crime victim has had to pay for medical treatment or replace his property with his own funds, and suffers inconveniences in having to

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attend at police stations and court hearings, with nothing in return.

The Bill has several provisions which recognise the crime victim as a stakeholder in a criminal case. It is now mentioned that a sentencing court can consider a Victim Impact Statement (VIS) under the new section 228. This will enable the Court to specifically consider the harm caused to the victim in determining the appropriate sentence. In addition, it will now be mandatory for a sentencing court to consider whether to also order the offender to compensate the victim for injuries or other losses under the new section 359. If used well, these provisions will make the process more meaningful for the victim and is a step closer to the progressive regimes in other developed countries such as Australia.

One concern I have about this is whether these provisions will end up simply being on paper and not actively used. For instance, I note that under the current practice, the Victim Impact Statement is not recorded by the police in the majority of cases. I would like the Minister to clarify whether there is going to be any change to this practice, ie, will the VIS be recorded by the police in future in a wider variety of cases? If not, the Court may not have the information readily at hand to adjust the sentence or to order compensation, which will undermine the purpose of the changes.

Third, community-based sentences. Increased options of community-based sentences are now available in lieu of incarceration. As a general rule, keeping minor offenders out of jail is a good principle. However, we should be careful that we do not inadvertently end up processing more people through the system and leave more people with criminal records. This "net-widening" could result if we start to prosecute people who would otherwise have been

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let off with a warning, just because we think there are "light" sentences available.

Sir, apart from these three areas, I have other concerns about specific provisions in the Bill. These concern the composition of Penal Code offences, changes to the provisions on caning and powers of the Court on appeal.

First, composition of Penal Code offences. The Bill makes a significant change regarding offences which can be compounded by the victim under the Penal Code.

Under the existing law, certain minor Penal Code offences can be settled between the victim and the offender provided it is allowed by the Court. For example, in outrage of modesty cases, the victim may accept an offer of compensation and an apology, in exchange for an acquittal, provided the Court allows it. Such a route is only available for certain minor offences specified by Parliament – the CPC provides that for those offences, the victim is empowered to compound.

The new section 241 removes the Court as the approving authority and gives this role to the Public Prosecutor. The rationale for this, according to the MinLaw Consultation Paper 2008, is that the Public Prosecutor will have the public interest in mind when he exercises this power. However, it was not explained why it was felt that the power needed to be taken away from the Court.

There have been several local cases where the Court allowed an offence to be compounded, despite objections from the Public Prosecutor. In the reported case of PP v Norzian bin Bintat [1995], the accused had been charged with voluntarily causing hurt. He had made an offer to the victim who was willing to compound the matter. The Public Prosecutor objected to the composition. The Court found that there were no

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aggravating factors, the injuries were minor and the parties had patched up their differences, therefore there was no reason to re-open old wounds by going through with the prosecution. The High Court clarified then that the Court was not a rubber stamp but had to make a judicial decision, apply the rules of reason and justice, and consider the public interest. In that case, it was found that there was no public interest element why the offence should not be compounded.

Sir, past cases show that there are instances where the Court and the Public Prosecutor differ as to what the public interest requires. With due respect, what reason do we have to think that the Public Prosecutor is superior to the Court in this regard?

Sir, in addition, the Public Prosecutor is a party to all criminal cases, on the opposite side of the accused person. Since this is an adversarial system, it is better to have the Court, an independent party, to assess whether the composition should be approved. The prosecution can always make its views known to the Court before the Court makes its decision.

I also do not see any compelling reason to move this decision from Open Court to the Executive Government, resulting in a loss of transparency and clarity to the general public.

Next, changes to the caning provisions. We are one of the few countries which continue to have caning as a judicial punishment.

However, though certain offences attract caning, some people are unable to suffer it. There are three main circumstances. First, ineligibility – women, and men above 50 or sentenced to death, are not eligible for caning. Secondly, serial offenders – a serial offender who is

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sentenced for several offences may be liable for more than 24 strokes, which is above the now specified limit and therefore illegal. Third, a caning which is discontinued – caning of an offender may have begun, but the caning is stopped halfway by a medical officer who finds that the offender is not medically fit to complete it. In these three circumstances, I do agree that a question arises about fairness vis-a-vis other offenders who are able to suffer caning.

Sir, under the current law (section 233), when a caning was stopped halfway, the Court could sentence the offender to additional imprisonment of up to 12 months to make up for the unexecuted caning. However, there was an express proviso in that section. Under section 233(2), the Court could still not impose a term exceeding the accused’s liability under the law. In other words, if his offence attracts a maximum of seven years' jail, his original jail term plus the jail term in lieu of caning should not be more than seven years. Neither was the Court allowed to exceed its sentencing jurisdiction under the current CPC.

Sir, the new Bill changes that. For all the three situations I mentioned, the Court can add imprisonment of up to 12 months in lieu of caning. And it is further stated that the aggregate imprisonment term after this addition may exceed the maximum jail term for the offence he committed and may even exceed the Court’s sentencing jurisdiction.

While I can accept that imprisonment can be added in lieu of caning in all the three circumstances, I have great discomfort in allowing the combined jail term to exceed the statutory maximum imposed by Parliament for the offence.

Sir, the maximum jail term prescribed by Parliament is there for a reason – to reflect how much loss of liberty should be suffered by an individual in the worst

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possible case. Furthermore, since the Courts rarely impose the statutory maximum jail term when sentencing an offender, there will usually be still room for them to add imprisonment in lieu of caning and still remain within the statutory maximum. Would the Minister clarify why this change is needed?

Next, Court powers on appeal. This issue concerns ensuring that accused persons have confidence in filing appeals.

I have raised this in MinLaw Committee of Supply (COS) three years ago. There have been cases where offenders appeal against their sentences for being too heavy, and the prosecution does not appeal that the sentence is too light – yet the offender’s sentence was enhanced by the appeal Court. This possibility of a boomerang on appeal will deter some offenders from appealing against their sentences, for fear of a worse outcome.

We should be concerned that people must feel free to exercise their rights of appeal in criminal cases, without jeopardising themselves. It is still my view that the CPC should be amended to provide that when only the accused person appeals against sentence, the Court can either maintain or reduce the sentence, but not enhance it.

Finally, Sir, there are two other areas left unresolved which the Government should review, if not now, then in the near future. First is the question of access to counsel which Member Alvin Yeo before me has touched on. As the law currently stands, an arrested person will not be allowed to consult his lawyer until the police decide that their investigations will not be jeopardised. This is despite the fact that the Constitution provides the fundamental liberty that an arrested person shall be allowed to consult a legal practitioner of his choice.

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Sir, the Constitution was amended last month to allow the police

to apply for Court Orders to detain a person beyond 48 hours via video link. Therefore, it will no longer be required to bring the arrested person to the Court premises and produce him in person before the Magistrate. I argued then why this compromises the Constitutional liberties, as the custody will be extended while the person remains in the police facility, and the Court does not have direct contact with the person under arrest to ascertain his condition. Since that amendment has now been passed, the right to counsel as a check becomes all the more critical. I urge the Government to study seriously the possibility of setting a statutory time limit after arrest when counsel must be allowed to see the arrested person, say, a few days after arrest or, at most, one week after arrest.

Sir, lastly, pre-trial disclosure. The statutory framework in this Bill is a welcome improvement. Once this has been in operation for some time, the Government should strive to go a step further – towards a best practice of disclosing evidence it has collected which it does not intend to use, which could be helpful to the defence. As the Police are often the first at a crime scene with powers to seize evidence and take witness statements, what they gather at the time of the crime is likely to be reliable. By contrast, the defence is not empowered to compel such evidence.

Such disclosure is required in the United Kingdom where there are rules for Disclosure of Unwanted Material set out in the United Kingdom Criminal Procedure and Investigations Act 1996 and their Joint Operational Instructions issued to the Crown Prosecutors and Police. The logic of this is straightforward. Reliable evidence should not be kept away from the Court. I hope the Government will look into these two areas in the near future.

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Sir, overall, some important improvements have been made to the CPC. However, there continue to be areas for concern and further review.

5.32 pm

Mr Michael Palmer: Mr Deputy Speaker, Sir, I rise in support of the Bill to repeal the existing Criminal Procedure Code and re-enact a revised Criminal Procedure Code, or what we lawyers commonly refer to as the CPC.

Before I begin, let me declare my interest as a practising lawyer, although I do not practise at the Criminal Bar. I would like to acknowledge the input and assistance that I have received from the Association of Criminal Lawyers of Singapore (ACLS). I will also refer to the feedback published by the Law Society of Singapore on the CPC Bill.

Sir, I would like to cover five points: First, the introduction of a greater variety of community-based sentences; second, the introduction of a requirement for the Court to consider awarding compensation to a victim of a crime; third, the new criminal discovery process; fourth, certain safeguards for the accused person; and, finally, the right to be informed of the right to counsel.

Community-based sentencing has attracted a considerable amount of coverage in the media. The existing CPC provides for a very limited range of community-based sentences, with the proposed amendments in Part XVII of the Bill, the options have been extended. These are indeed positive steps that are to be applauded. The wider range of community-based sentences allows not only more options of sentencing for the wide range of crimes that are being committed, but also allows for a sentence better tailored to cure the underlying

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cause for the commission of the offence. This will ultimately assist in the rehabilitation of the offender and hopefully reduce recidivism. In my view, this is especially pertinent for young offenders and first-time offenders.

Another aspect of the new community-based sentencing scheme is the introduction of provisions that allow minor offences to be rendered "spent" once the community-based sentence is completed. Crimes are sometimes committed in a moment of folly and there are many young or first-time offenders who regret their actions and would never repeat the mistake. Allowing for these minor offences to be "spent" spares them from being judged for life and affords them the much-needed second chance.

In their feedback to the proposed amendments to the CPC, the ACLS had proposed the inclusion of two new community-based sentencing schemes – the Conditional Stern Warning and suspended sentences. These are not new or untested concepts. The Conditional Stern Warning is envisaged to be administered in lieu of prosecution, such that certain offences will not be prosecuted in Court if the alleged offender does not commit any offence for a certain period of time. The concept of the suspended sentence is not new either. It is in use in countries like Hong Kong and Australia. The suspended sentence takes effect only if the offender re-offends at a later date or breaches a condition imposed by the Court. I note that these two schemes have not been introduced and I was hoping if the Minister could enlighten us as to why they have not been included.

Under the current CPC, the Court has the power to award compensation to a victim who is injured as a result of a crime, but there is no positive duty on the Court to consider whether or not to exercise this power.

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Section 359 of the revised CPC Bill will require the Court to actively consider ordering compensation after every conviction. This is indeed a very sensible change because the Judge presiding over the criminal trial is fully apprised of the facts and is in the best position to decide on the appropriate compensation for the victim. Making the victim bring separate civil proceedings simply means excessive costs and delay for the victim as well as a waste of the Court's time because all the evidence will have to be revisited.

Let me now turn to an issue that has been a "thorn in the side" of the criminal lawyers for sometime – the discovery process.

Under the existing CPC, the Prosecution, which has the benefit of the fruits of all the work product from police investigations, has no obligation to provide the defence lawyers with statements and materials that they have in their possession, beyond the First Information Report and the cautioned statement. This imbalance in the access to information makes it difficult to conduct the defence, to say the least.

With the proposed amendments to sections 161 to 166 of the Bill, prosecution and defence lawyers are obliged to furnish and exchange their respective cases. Significantly, the Prosecution is also required to provide other statements and materials that will not be relied on after the defence has filed its case.

I applaud this change. For too long, defence lawyers had to operate in the dark, without sight of any statements or evidence until the trial. More importantly, they will now have access to statements which may be exculpatory. We have moved out of the dark ages.

One common complaint that I receive from some lawyers who practise at the

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Criminal Bar is the lack of, or apparent lack of, safeguards for the rights of the accused. If we begin with the point of time when the accused person is first brought in for investigation, section 22 of the Bill empowers the police officer to examine the accused or any person, and it confers on the person being examined the right not to say anything that might expose him to a criminal charge, penalty or forfeiture. This is generally referred to as the right against self-incrimination. However, there is no obligation on the police officer to expressly inform the person being examined of this right.

Some might wonder, what is the good of having a right when you do not know about it? Few people might be aware that they need not reply where that reply might incriminate them. The Law Society has recommended that the revised CPC should oblige the police officer to read out this conferred right to the person being examined, who may well be the potential accused. This recommendation has not been taken up. The lack of an obligation to inform the examined person is a clear erosion of the right conferred by section 22(2) because a right without knowledge of its existence is, in effect, like not having that right at all.

I next turn to section 258 of the Bill, which my learned friend, Mr Alvin Yeo has spoken. Section 258 subjects the accused person's statements to the voluntariness test. What this means is that the Court will refuse to admit the statement if the making of the statement appears to have been caused by any inducement, threat or promise proceeding from a person in authority and sufficient to give the accused person reasonable grounds to suppose that in making the statement, he would gain an advantage or avoid evil of a temporal nature in reference to the proceedings against him.

Essentially, the idea is that the accused's statement will be admissible

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only if it was made voluntarily. The problem lies with Explanatory Note 2 and this is something that was highlighted by both the Law Society and the ACLS.

Specifically, Explanatory Note 2 states that if an accused person's statement is admissible, it does not become inadmissible merely because: (a) the statement is made under a promise of secrecy or in consequence of a deception practised on the accused; or (b) by reason of the accused being intoxicated; or (c) where the accused has not been warned that he was not bound to make the statement and the evidence of it might be given against him in Court.

To begin with, a statement that is made under a promise of secrecy or in consequence of a deception is just another way of extracting a statement from an accused by way of inducement, threat or promise. A promise of secrecy or an act of deception would fall neatly into the category of an "inducement". Such statements would be a contravention of section 258. Why then have an Explanatory Note which leaves the door open and some room for doubt?

The situation becomes even more troubling where the Explanatory Note concerns a statement made when the accused is intoxicated. Intoxication can impair judgment, affect memory and cause confusion. It does not seem fair to allow the prosecution to use a statement the accused made while intoxicated which may lead to his conviction.

The third issue in the Explanatory Note concerns a statement being made when the accused has not been warned that he was not bound to make the statement and that evidence of it might be given against him. This raises the same problem as the one I highlighted earlier concerning section 22 and a person's right against

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self-incrimination. While the accused need not be told of his right against self-incrimination, he may be convicted on a statement he has made in which he incriminates himself. And, best of all, that statement could have been made while he is intoxicated.

May I ask the Minister to consider excluding this Explanatory Note?

The final aspect of the Bill that I would like to touch on is the right to be informed of the right to counsel. Article 9(3) of our Constitution states that "where a person is arrested, he shall be informed as soon as may be of the grounds of his arrest and shall be allowed to consult and be defended by a legal practitioner of his choice".

What is not guaranteed by the Constitution, however, is the right to be informed of the right to counsel and when that access to counsel will be granted. The right to be informed of the right to counsel is legislated in all other major developed common law jurisdictions. In the United Kingdom, the legislation stipulates that an arrested person is entitled to consult a solicitor privately as soon as practicable, with the exception of certain permitted delays, but in any case within 36 hours. In Australia, it is legislated that a custody manager for the arrested person must inform him that he is allowed to communicate with a lawyer and consult with the lawyer in person or ask for the lawyer to be present during investigations. The arrested person is also entitled to communicate privately with his lawyer.

Unfortunately, the CPC Bill contains none of these safeguards. The Law Society has recommended that the accused should be informed of his right to consult with a lawyer when he is arrested and once he has exercised this right, he should be given up to two hours to contact a lawyer by phone during office

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hours, up to four hours if it is after office hours, or until 10 am the next day if it is late at night. The Law Society also recommends that the CPC should stipulate that the accused person be entitled to consult privately with his lawyer.

May I please ask the Minister why these safeguards have not been included? As the ACLS had pointed out in their feedback, the access to counsel is all the more important since the CPC does not oblige the police to inform the accused person of his rights, in particular, the right against self-incrimination, before taking a statement.

I believe that justice must not only be done but must be seen to be done. We should not shy away from ensuring that the accused person's rights are safeguarded and that he is aware of those fundamental rights.

Sir, with that, I support the Bill.

5.43 pm

Mr Christopher de Souza (Holland-Bukit Timah): Mr Deputy Speaker, thank you for allowing me to join in this debate. I rise in support of the Bill.

The new Criminal Procedure Code (CPC) will provide an updated regulatory framework which is more flexible and effective, allowing targeted responses to complex issues starting from investigations all the way to sentencing. This assists in achieving just outcomes. It also strikes a better balance between rehabilitative and punitive justice and allows the Courts to take a more comprehensive approach to a wide range of cases, from petty crimes such as stealing to more serious ones involving violence and drug abuse. There is also greater community involvement in the new framework – an important com

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ponent for re-integrating offenders into the community and preventing them from re-offending.

First, allow me to address the greater powers of investigation under the new CPC. Clause 112, division 7, empowers certain authorised officers to require a person to surrender his or her travel documents if there are reasonable grounds for believing that the person has committed an offence. If the person refuses to surrender his or her travel documents, he or she may be arrested. This is a positive measure as this will help our officers greatly in their investigations. Singapore is becoming an increasingly cosmopolitan society. We need to guard against the rise of triad activities, drug abuse, money laundering, and so on. Our men-in-blue need more tools at their disposal to keep crime rates in Singapore low as before.

Therefore, the surrendering of travel documents will deter international crime syndicates from carrying out quick "stop-over" crimes such as drug trafficking or money laundering.

Next, I support the provision to allow for the Police to refer appropriate cases involving non-arrestable offences to community mediation, under clause 16 of the Bill. This will help to free up precious time Court time, in terms of hearings and pre-trial conferences, and build a sense of reconciliation into the justice system. However, as the general level of education of our population rises and people become more keenly aware of their rights, it is not unforeseeable that in the assertion of these rights, they may neglect the possibility of negotiation and compromise. Therefore, building mediation into the justice system is a good way of reinforcing the fact that some grievances can be solved through talking and compromise.

I fully support the introduction of community-based sentences, one of the

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most significant amendments in the CPC, under Part XVII of the Bill. To augment punitive measures of jail, fine or caning, we now have a wider range of sentencing options.

The Short Detention Order, under clause 348 will be effective. We should prevent petty criminals from graduating onto more serious crimes due to the influence of other criminals they meet in jail and the networks they build up in there. We must put a stop to such vicious cycles. May I ask whether this sentence will indeed carry less stigma than imprisonment and whether it would allow the offender to carry on in his job and continue to earn a living.

The Day Reporting Order, under clause 341, will incorporate counseling which is a crucial component in helping to lower the chances of the offender re-offending, or the recidivism rate. Some offenders have issues which are better addressed through counseling. For those with multiple issues, we need to have a comprehensive approach and help them solve their problems through additional coordination with Family Service Centres, CDCs and other self-help organisations. As a community, it is our responsibility to put in a supportive framework and realistic measures to help these people turn over a new leaf and stay on the right side of the law.

The Mandatory Treatment Order, under clause 339, may have the most direct and targeted impact from among the community-based sentences being introduced under the new CPC Bill. Today, we have at our disposal a much wider range of treatments for mental disorders and illnesses. We should utilise them to help offenders with such problems minimise resultant criminal behavior. Orders compelling certain offenders to receive medical treatment for their

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illnesses would be far more effective and meaningful than incarceration. These are cases where we can literally treat the cause of the crime with the right dose of medicine. Ultimately, we want these offenders to be able to believe that with the proper medical intervention, they can live meaningful lives by contributing to our community.

The Community Service Order, under clause 346 of the new CPC Bill, is commendable in that the offender can make reparation to his community even as he serves his sentence. However, I would like to ask the Minister if we have staff with the requisite experience and skills to support the offenders carrying out community service orders? How do we ensure that we have a consistent match between the level of supervision and management to the risks involved, especially for higher risk offenders? In addition, do we have a framework to ensure that we provide adequate "through care" and "aftercare" for an offender, from the point of transition from custody to the community, or at the end of a community order?

Another key improvement in the CPC is in the area of compensation and costs under Part XVIII of the Bill. The provision under clause 359 requiring the Courts to actively consider compensation for the victims after conviction has widespread support. This will be especially significant for poorer victims who cannot afford to file subsequent civil suits against the attackers for losses or damages incurred through criminal wrongs suffered or he had suffered.

This provision deserves support as it will provide victims with a faster and more convenient way to receive compensation without having to take out a separate civil suit. However, would the Minister please elaborate whether this provision will be flexible enough to accommodate the possibility for the victim

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to indeed, if he so chooses, file a separate civil claim in the event that he decides to do so? If so, how will the compensation granted by the Criminal Court affect his subsequent civil claim for damages suffered as a result of the same criminal act?

I also support the provision for criminal case disclosure procedures under Part IX, entitled "Pre-Trial Procedures in the Subordinate Courts" and Part X "Pre-Trial Procedures in the High Courts" of the Bill for the prosecution and the defence to disclose information about a case to each other. The discovery process coming out of the CPC preserves the independence of the estemmed institutions in the AGC and then the decision-making process as well as allows the Defence Counsel more scope to view the prosecution's documents before the trial. One major benefit of this is that Defence Counsel can better advise their clients as to whether the prosecution will be able to achieve a conviction.

With the amendment, the prosecution will be required to give the defence a document which sets out information about the facts, witnesses and evidence supporting the allegations against the accused person, including statements by the accused that the prosecution intends to rely on during the trial. The defence is then required to provide the prosecution information about the facts, evidence and witnesses that it will produce. The prosecution will also have to provide the defence all other statements made by the accused and documentary exhibits, as well as any criminal records of the accused.

This sharing of information will result in a fairer, more efficient trial where both parties are engaged on the same platform, allowing them the time and opportunity to surface and consider the significance of the crucial facts of the case. This will benefit the prosecution because it will be

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in a better position to decide whether the charge can be made out or whether a reduction or withdrawal of charge is in order. It also benefits the Defence Counsel because it forces his client to be honest and upfront with him or her about his defence. Naturally, the Courts also benefit because the prosecution and defence engage each other on a reasoned and common platform rather than guessing at what each other's case and evidence are. This will translate into more efficient hearings and disposal of cases.

Mr Deputy Speaker, Sir, I support the Bill because it augments the substantive review of the Penal Code with up-to-date Criminal Procedure.

5.52 pm

Assoc. Prof. Paulin Tay Straughan: Thank you, Mr Deputy Speaker.

First, I must confess that I have but a truncated appreciation of the complexity spelt out in this Bill. A little while ago, Mr Calvin Cheng whispered to me that we were the only two non-laywers speaking on this complex Bill. I think for good reason, I sent an urgent e-mail to my research assistant, a law undergraduate, for help in deciphering the legal jargon. He replied in an email, "It is all 450 pages long! I will need time..." And then, he disappeared and went off to Melbourne, so I was left on my own.

From my limited understanding, one key feature of this Bill is the expansion of community-based sentencing schemes (CBS). This Bill acknowledges the limitations of tradition punishments of fines, imprisonments or caning, and proposes there be greater flexibility in the law and a more graduated sentencing option for minor offences.

The Bill proposes five new CBS: Short Detention Order, Day Reporting Order, Mandatory Treatment Order, Community

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Service Order, and Community Work Order. In general, I stand in support of a more holistic rehabilitation option for offenders – especially for those who committed minor misdemeanors.

As a sociologist, I strongly agree that the traditional punishment modes of incarceration may not be the best option for certain groups of offenders, particularly low-risk offenders. I am especially appreciative of the Mandatory Treatment Order which acknowledges the severe disadvantages the mentally challenged faces, and the emphasis on psychiatric treatment as rehabilitation.

While I stand in support of this Bill, I would like to seek some clarification from the Minister on two key issues. The first relates to the social environment in which the rehabilitation takes place. Sociological literature on deviance tells us that much of it is learned behavior. For example, anti-social behaviour can often be traced back to the emersion in a sub-group culture which challenges status quo and normative expectations of the establishment. Here, negative peer influence is often the culprit. A confounding factor is the inability of the family to effectively police the offender. In these cases, releasing the offender back into the very environment that first tripped him may not be effective rehabilitation. In determining suitability of CBS schemes, will the Community Court take into consideration quality of offender’s social environment in additional to the nature of the offence? Will there be community-based interventions that will enhance the likelihood for successful rehabilitation?

The second issue concerns evaluation of relative risk of recidivism, and risk to the community. Before an offender is allowed to return to the community to serve his CBS, the public must first be assured that the offender will pose no harm to those innocent members in his

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social environment. How will relative risk of recidivism be assessed? In the expansion of CBS, the notion of risk to community must be addressed.

Recently, the Straits Times reported the case of the "Monster dad" who molested his 6-year old daughter, was incarcerated for four years and released back into his family, and then went on to rape the same child that he had abused. I had several questions when I first read the case: what rehabilitative efforts were conducted on the perpetrator when he was incarcerated for the first offence? For him to be released back into the community and allowed back into his family, how was he "certified" to be safe around not just his child but other children? As he was released early for good behaviour, there must have been a significant and measurable gain in rehabilitation efforts. Yet, four years later, he attacked his young victim again.

This case highlights two important considerations. First, that it is very difficult to assess risk. Second, when we invoke the community as part of the rehabilitation process, we must also equip the community involved with skills and information to empower the members – to make significant contributions to the rehabilitation of the offender, as well as to protect themselves.

I raised these as concerns so that the community can be assured that their well-being is not compromised as we expand the CBS schemes. All said, I want to place on record my support of these proposed schemes as I strongly believe that we should not stigmatise those who have faltered, and as a community, we must do all we can to help these fellow Singaporeans return to equilibrium.

5.58 pm

Mr Hri Kumar Nair: Mr Deputy Speaker Sir, I support the proposed new CPC.

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First, let me declare my interest as a lawyer with some heart. [ Laughter ]. The overhaul of the CPC is a timely one. The CPC is a critical piece of legislation in our criminal justice framework, yet it has received relatively little public attention. Its length and dryness are no doubt responsible for that. Yet, its provisions have the power to determine the effectiveness of investigations, the powers of arrest, the fate of those suspected of committing crimes and, ultimately, whether justice will be achieved.

I will be addressing two points. First, the new discovery process, and second, the taking an admissibility of statements of the accused.

Sir, justice and fairness in the criminal justice system are difficult concepts. When a crime, particularly a heinous one, is committed, the human response is to seek retribution and redress. That means identifying someone responsible for the crime and ensuring that he, she or they receive the appropriate punishment. Nothing frustrates the public more than when a crime goes unpunished. They expect the Police and prosecutors to ensure that that never happens.

Yet, it is for that precise reason that the rights of the accused must be protected, and that convictions are not secured simply to satisfy the public need. The law prescribes substantive safeguards, such as ensuring that a person can only be convicted absent reasonable doubt, and that the prosecution must, in most cases, prove not only the making of the offending act, but that the accused had the necessary state of mind. Procedural rules are designed to facilitate the process. They include the ability of the police to search premises and seize evidence, or to take statements. But matters of procedure can be the tail which wags the dog,

and the nature and

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implementation of procedural rules may well determine the outcome of a case.

How rules of procedure are drawn up are therefore the subject of intense debate. They differ from country to country. In some, they are weighed so heavily in favour of the accused that securing a conviction becomes difficult. Some may say that is an acceptable situation, and cite well-known edicts that a man is innocent until proven guilty and that it is far better for nine guilty men to escape punishment than an innocent one to be convicted. But we should not govern by slogans but by substance. Writing the rules heavily against the State while attractive to some does not make sense. That makes our laws less effective and only compels the bending of rules to secure convictions, as we have seen in other countries. Ultimately, justice is not done and everyone is the loser.

The touchstone of the criminal justice system should be about doing what is right. It should do so by ensuring that the playing field is a level one and no party is unfairly treated. While the interests of the parties are different, the goal should be a common one: that justice be done. That is the role of the CPC – to ensure that there is procedural fairness and that there are safeguards against abuse.

The new rules on discovery are designed to achieve that end. Previously, discovery was non-existent and both parties held their cards close to their chests. The proposed amendments are therefore welcome steps to enable a more open and fairer process.

The amendments set out what both the prosecution and the defence must do to share information with each other, including what must be shared and what they must be produced. It is essentially a quid pro quo . But it will only work if both sides comply with their obligations in good faith.

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In that regard, I have two concerns.

First, why do the discovery provisions not apply to all criminal trials if openness and fairness is something we want to achieve? Why is it made an option for the accused to opt in some cases, and only applies if both accused and prosecutor consent in other cases?

Second, are there any consequences if there is deliberate concealment of material evidence? Clause 169 of the Bill says that the Court can draw an adverse inference or order a discharge not amounting to an acquittal if the defence or the prosecution fails to disclose some items. That implies that there is a choice and that both parties may choose to exclude evidence for tactical reasons. But if the State has evidence, should the Court not be entitled to order disclosure at the pain of contempt? The State should have a higher duty to ensure fairness and due process. Where discovery is concerned, it should not be permitted to make tactical decisions.

Sir, just a comment about NCMP, Ms Sylvia Lim's comment on clause 231 where she asks how much prior notice should be given where you seek to introduce evidence which had not been given in the case. Speaking as a practitioner, I think it is very difficult to prescribe how much notice can be given. If something has been left out, it should no doubt be given as soon as possible. Nonetheless, what the Bill does not say or does not require is an explanation from the party who seeks to introduce evidence at a late stage as to why that evidence could not have been introduced earlier. And, again, it does not give any consequences as to when there is a lack of reasonable explanation.

I move on to the issue of recording and admissibility of statements. This has

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been debated in this House before. But now that we are revamping the CPC, it is an opportune time to look at it again. An accused person has right to Counsel of his choice but this right is not unqualified. In particular, he will not have immediate access. We have been through the arguments before. The Police are concerned that access to Counsel may prejudice their investigations, and that we have to be realistic and acknowledge that the presence of Counsel may sometimes hinder the administration of justice.

If that is accepted as a valid argument, then it must equally be accepted that leaving the accused alone with the Police without Counsel over a lengthy period of time may likewise hinder justice. Just as Defence Counsel wants to get a discharge or an acquittal, the police want to secure a conviction.

Further, being hauled up by the Police is a harrowing experience. The individual is subject to an alien, hostile environment. It would be naïve to assume that innocent people will not make mistakes after hours or days of questioning. It is often said that the truth has only one version and honest men will not change their story. But that is yet another slogan. People are made up differently. There are those who may say anything to make the unpleasant experience end, and to return to their families, or may simply be confused. Indeed, I have spoken to highly educated people who tell me that that they cannot remember what they told the Police, or what is in the statement they signed, even within hours of being released.

I now touch on the Explanatory Statement to clause 258 – Mr Alvin Yeo and Mr Michael Palmer have touched on this – where the subparagraphs (a) to (d) are concerned. The Minister states that it reflects the existing law and so this is not anything new. But now that we are revamping the CPC, does he consider that law to be fair? If a person is intoxicated

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and does not realise the implications of the statement he is signing or does not understand what he is agreeing to, would it be fair to then use that statement against him?

The Minister then said that sub-section E is new. Sub-section E suggests that the statement may be admissible even if he does not comply with clauses 22 and 23 of the Bill and that includes where an accused does not understand English but is nonetheless made to sign the statement although if is not interpreted to him in a language he understands. Again, is that a fair outcome we want to achieve? How does this promote public confidence in the justice system?

Would the Minister not agree that it is in the interests of justice that the statements the prosecutor intends to rely on to mount its prosecution are accurate and truthful? And can the Minister categorically say that there has been no instance of an accused signing a statement he did not fully understand or where he has not appreciated, or has been misinformed of the consequences of doing so?

The real issue is how we strike a balance in order to get things right, whether or not that results in a conviction or an acquittal. The statements of the accused have an important influence in a trial. So one of the things we can and should do is to ensure the integrity of those statements.

There have been suggestions in the past on how to achieve that balance. One was audio or video-taping the statement-taking process. The Government, I believe, has responded that it would still be open for the accused to claim that he was threatened before the taping began and therefore the statements may not reflect the truth.

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Again, I do not fully agree with this but I accept that such a system is not foolproof and presents certain logistical and other difficulties. Can we at least try something simpler? All we need is to ensure that the accused understands what he is signing, and its consequences. If he cannot have his own Counsel present, then we should at least allow for an independent third-party who is legally trained to be involved in the statement taking process or at least in the signing process. Such a person already exists, for example, a Commissioner for Oaths or Notary Public. These are officers of the Court who are under duty to ensure their independence and the integrity of statements signed before them. They have no reason to favour either the prosecution or the defence, so the Police's concern about interference does not apply. The rights of the accused will be better protected and the State is more assured that the statement they are relying on has been freely made and fully understood. Challenges against the statement will be more difficult, and therefore, less likely attempted. There will be substantial savings in time and costs.

But, more importantly, justice will be the ultimate winner.

6.08pm

Mr Calvin Cheng (Nominated Member): Mr Deputy Speaker, Sir, thank you for allowing me to speak on this Bill. I stand in support of the Bill.

I would like to speak specifically on Part VIII, section 151 on Magistrate's Complaints, and specifically to its relevance to acts of Voluntarily Causing Hurt (VCH) under section 323 of the Penal Code. Section 323 makes acts of Voluntarily Causing Hurt non-sizeable offences, except in cases where the victim is young, elderly or where there is specific public interest involved. In such

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cases, the alleged victim is normally directed by the Police to file a Magistrate's complaint.

There have been several incidents reported in the newspapers in recent years about how members of the public have been directed to file a Magistrate’s complaint by the Police, after they have been assaulted and hurt.

In a recent case, the Straits Times reported that senior executive A Jaafar reported to the Police on 10th January 2010 that he was assaulted by a Saudi Arabian Embassy official, but was told by the police that he should make a Magistrate's complaint instead. I also remember the case reported in the Straits Times on 16th December 2007 when communications manager K M Ho was reported to have been punished and beaten by a drunken sailor near Wheelock Place, and was also directed to make a Magistrate's complaint. This sparked a fury of letters to the Straits Times Forum which got the standard reply from a Police spokesman reiterating that under the current procedure, the Police is right to direct the alleged victim to file a Magistrate’s complaint.

In the TODAY newspaper on 1st Mar 2010, Conrad Raj wrote about this issue and recounted the report some years ago, when a young doctor was assaulted at a food stall at Lorong 9, Geylang, by a group of six to eight men who had accused him of staring at them. As a result of their beating, he suffered multiple facial fractures and damage to a facial nerve. He had to undergo a three-hour operation, which included having two metal plates inserted around one of his eyes. I am sure Members remember this report.

The initial reaction of the Police was again to "advise" the victim that the

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blatant attack was a civil case and to "file a Magistrate's complaint". It was only after an appeal was made, that the matter was reclassified under section 325. By then 10 days had passed, by which time witnesses would have dispersed and memories faded, said his sister, Ms Liew Sok Kuan, in a letter to the press.

Mr Conrad Raj went on to say, and I quote "I can understand the matter being a non-sizeable offence in the majority of domestic quarrels when the Police are called to intervene. But when a person is assaulted in public, especially by strangers, how can that be a non-sizeable offence?"

Sir, as a previous victim myself after having been assaulted and hurt in a club and directed by the Police to file a Magistrate’s complaint, I would like to suggest that Voluntarily Causing Hurt be made a sizeable offence unless it is clearly a domestic dispute because the Magistrate's complaint process is, in my opinion, clearly not suitable for such criminal acts and indeed a perversion of justice.

In my case, I went on to file a Magistrate's complaint against my aggressor, which led to a tortuous two-year process. Firstly, victims like us in such a process have to hire our own lawyers at our own cost to bring charges against our aggressors. This, by itself, is already a huge barrier to justice being done. And because the process is more civil than criminal, the other party, who also hires a lawyer, can also counter-charge, as I found out to my own chagrin, turning the victim into the aggressor and the aggressor into the victim. Moreover, before the matter even goes to trial, the victim has to endure mediation under the Community Mediation Centres Act.

Sir, can you imagine going for mediation with the person who attacked you, if you were Mr A Jaffar, or Mr K M

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Ho, or the young doctor? How can this be right? A person attacks and injures you in public and in many of these cases by strangers or virtual strangers, and you have to stand in front of a Justice of the Peace who delivers platitudes at you, and tries to mediate as if you are domestic lovers having a quarrel? How can this be justice?

Sir, I call on the Minister to review the instances where Voluntarily Causing Hurt is a sizeable offence. Filing a Magistrate’s complaint cannot be the way that justice is served after a person is assaulted in public, even if he is not elderly or young, or a person who is in a public service role. For many people, filing a Magistrate’s complaint is costly, time consuming, and thus a barrier to them obtaining justice. The mediation processes inherent in Magistrate’s complaints are also patently unsuitable in such incidences.

With this, Sir, I stand in support of the Bill.

Mr Shanmugam: Mr Deputy Speaker, Sir, I think it is an appropriate time to adjourn. Before we adjourn, could I just clarify a couple of points? It is best to clarify this evening rather than tomorrow.

Mr Palmer made an impassioned speech on clause 258, Explanation 2, and even invited us to drop it. Mr Hri Kumar touched on it. Mr Alvin Yeo also made references to it, which surprises me – particularly Mr Palmer's speech and Mr Alvin Yeo's speech – because Explanation 2 in the proposed code is not new law. It already exists and my Ministry has spent a considerable period of time trying to explain this to anyone who would listen, and I spent some time in my speech making the same point. And since it has been a little difficult for us to explain it, let me read out the clauses so that the people will understand that there is nothing new here.

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The Evidence Act section 29, which has existed from time immemorial says this: "If such a confession is otherwise relevant, it does not become irrelevant merely because it was made under the promise of secrecy, or in consequence of a deception practised on the accused person for the purpose of obtaining it, or when he was drunk." That is the current law. No one has objected to it.

"Or it was made in answer to questions which he need not have answered, whatever may have been the form of those questions, or he was not warned that he was not bound to make the confession and that evidence of it might be given against him". The new Explanation 2 in the CPC which ports over that says, "if a statement is otherwise admissible, it will not be rendered inadmissible merely because it was not made or it was made in any of the following circumstances: (a) under the promise of secrecy or in consequence of a deception practised from the accused for the purpose of obtaining it; (b) when the accused was intoxicated; (c) in answer to questions which the accused need not have answered, whatever may have been the form of those questions; (d) where the accused was not warned that he was not bound to make the statement and that evidence of it might be given against him;" and, (e) as I said in my speech, is new, which relates to interpreters and so on. I will refer to it in my closing speech.

And going as far back as 1939, we have colonial cases where this was said about section 29. This was Ong Hock vs Virgina 1939 at 232 and 234, section 29 enacts that "a confession, otherwise relevant does not become irrelevant, in other words does not cease to voluntary, though induced by deception or obtained by asking questions he need not have answered, whatever may have been the form of those questions, or because he was not warned that he was not bound to confess". The reason is that the Act's

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omissions mentioned in the section have no tendency to make a person accused himself falsely. RV Santokh Singh, 1933, MLJ, section 29 of the Ordinance 53 Evidence says, "if there is such a confession that is one made by an accused person is otherwise relevant, it does not become irrelevant merely because it was made in answer to questions which he need not have answered, whatever may have been the form of those questions".

Chief Justice Jenkings emphasises that legitimacy of this method of eliciting a statement from an accused in Branda Kumar , an Emperor, 1909, 37 Calcutta . He says, "the only thing that is abhorrent is pressure or inducement, and the sole criterion by which the fitness of an examination can, so far as I can see, we judge is with reference to the question of whether it was voluntary or not". The real point as Justice Kang has said, is that the only thing abhorrent is pressure or inducement. So, we can have a debate on this. But we must get the facts right. This is not a new provision. In fact, what we are doing is extending that voluntariness test to all statements, rather than have it restricted to confessions. But the point about such statements being admissable even if given under intoxication or drunkedness, has always been there for about 100 years or so. The reason is

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simple – because you may have been drunk but the statement was given and you made a confession and if it is true and when the Judge comes to the conclusion that you only spoke the truth even though you were drunk, then they might still admit it but, obviously, the Judge and the Court have to be satisfied. This is the law that has stood all these years. And the more fundamental point is that the Code does not seek to introduce new law, except for sub-section A and I will refer to that later.