CRIMINAL PROCEDURE CODE (AMENDMENT) BILL

Order for Second Reading read.

The Minister for Law and the Environment (Mr E. W. Barker): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

The Prisons Reorganisation Committee in its Report submitted to the Government last year observed that sentences of corrective training on young offenders who show signs of embarking on a lifetime of crime and sentences of preventive detention on habitual criminals are rarely passed by our courts. The Committee recommended therefore that judicial officers in dealing with offenders should be compelled to consider passing a sentence of either corrective training or preventive detention. The Committee further recommended that the courts should also be empowered to impose caning in addition to sentences of corrective training or preventive detention.

The Committee noted that, under the existing section 12 of the Criminal Procedure Code, a sentence of corrective training could range from two to four years but under section 3(1) of the Criminal Justice (Temporary Provisions) Act, the permissible range of a sentence of corrective training is three to seven years. The Committee recommended that the range of a sentence of corrective training under the Criminal Procedure Code should also be three to seven years.

The Committee also recommended that the Criminal Procedure Code be amended so as to -

(a) enhance the jurisdiction of the District Courts by empowering District Judges to pass sentences of up to five years for first offenders and up to ten years for habitual offenders; and

(b) empower the Magistrates' Courts to pass sentences of up to two years on first offenders.

Clauses 2 and 3 of this Bill seek to amend the Criminal Procedure Code to give effect to these recommendations.

Experience has shown that determined criminals are not sufficiently deterred by merely enhancing the punishments for various offences. A greater deterrent would be to increase the chances of their conviction when they are apprehended and, with this in mind, it has been decided through this Amendment Bill to adopt certain of the recommendations of the Criminal Law Revision Committee of the United Kingdom whose report was presented to the U.K. Parliament in June 1972.

The Bill proposes to restrict greatly the so-called "right of silence" enjoyed by suspects when interrogated by the police or by anyone charged with the duty of investigating offences. By the "right of silence" in this connection I mean the rule that if the suspect, when interrogated, omits to mention some fact which would exculpate him but keeps this back till the trial, the court may not infer that his evidence on this issue at the trial is untrue. Under the proposals contained in clauses 5 and 6 of the Bill, it will be permissible to draw this inference if the circumstances justify it. The accused will still have the "right of silence" in the sense that it is no offence to refuse to answer questions or tell his story when interrogated; but if he chooses to remain silent, he will risk `having an adverse inference drawn against him at his trial and the failure may, on the basis of such inference, be treated as capable of amounting to corroboration of any evidence given against him. The Criminal Law Revision Committee in its report remarked.

In our opinion it is wrong that it should not be permissible for the jury or magistrates' court to draw whatever inferences are reasonable from the failure of the accused, when interrogated, to mention a defence which he puts forward at his trial. To forbid it seems to us to be contrary to common sense and, without helping the innocent, to give an unnecessary advantage to the guilty. Hardened criminals often take advantage of the present rule to refuse to answer any questions at all, and this may greatly hamper the police and even bring their investigations to a halt. Therefore the abolition of the restriction would help justice.'

It is as much in the public interest that a guilty person should be convicted as it is that an innocent person should be acquitted.

If the proposal to allow adverse inferences to be drawn from the accused's silence is accepted, it follows that the requirements of the so-called Judges' Rules contained in Schedule E to the Criminal Procedure Code to caution a suspect that he is not obliged to say anything must be abolished or replaced by different kinds of warnings or intimations. The Bill therefore proposes that after the accused has been charged with an offence he should be served with a notice in writing advising him that adverse inferences may be drawn from his failure to mention a fact on which he is going to rely at his trial.

The United Kingdom Government has not taken any steps to introduce legislation based on the recommendations of their Criminal Law Revision Committee but their report has been debated in the House of Lords, and the Council of the Law Society and the General Council of the Bar of England and Wales have submitted memoranda on it. The recommendation to restrict the right of silence and to abolish the Judges' Rules attracted the most severe criticism. Some of the comments contained in the memoranda of the Law Society and the Bar Council have been found to be not relevant in the Singapore context. In this context I must point out that we have no jury in Singapore and we have to assume that our magistrates and judges can empathise. it is relevant to note here that whereas a very high proportion of the criminal cases heard in the magistrates' courts in England and Wales are tried by lay justices, all the magistrates in Singapore are today legally trained.

Another criticism is that there is little to protect the vast majority of alleged offenders who are to be required in a situation of stress to formulate defences to as yet an unspecified charge, or risk having adverse inferences drawn against them at a later, and perhaps more critical stage. But clause S of the Bill requires the accused to be served with a notice in writing setting out the charge to which he has to answer. He does not have to formulate defences in relation to anything else he may have done. This provision does not appear in the draft Bill prepared by the Criminal Law Revision Committee. Another criticism is to the effect that it is quite wrong that the accused's silence when interrogated or charged should be capable of being regarded as corroborative of other evidence implicating the accused. However, under the present law the suspect who tells a lie may be regarded as providing cogent evidence against himself capable of amounting to corroboration. An extension of this rule to cover the accused's silence when confronted with a specified charge should not therefore cause undue alarm. Whether his silence does or does not amount to corroboration must depend on all the circumstances of the particular case and this is precisely what the Bill states. However, serious consideration has been given to these criticisms, and the proposals of the Criminal Law Revision Committee have been modified to suit the system of criminal justice operating in Singapore and to provide further safeguards. For instance, clause 5 of the Bill seeks to amend section 121 of the Criminal Procedure Code in such a way that even though an accused person is advised to disclose his defence, if the making of any statement by an accused person appears to the court to be caused by an inducement, threat or promise proceeding from a person in authority, the court may in its discretion refuse to admit such statement or allow it to be used in cross-examination or for the purpose of impeaching his credit. And clause l6 of the Bill does not seek to adopt the recommendation of the Criminal Law Revision Committee that the accused's failure to give evidence on oath or affirmation at his trial should be capable of providing corroboration in law of any evidence given against him.

Another long standing practice which the Bill seeks to abolish is the accused's right to make an unsworn statement from the dock in his own defence instead of giving evidence on oath or affirmation. Although the legal status of an unsworn statement is that of a kind of inferior evidence because it is not given on oath or affirmation, an accused who has something to hide and does not wish to be subject to cross-examination would invariably take advantage of his right to make an unsworn statement from the dock. However, if an accused who has a criminal record wishes to make imputations against the character of the witnesses for the prosecution, it may be to his advantage to make an unsworn statement instead of giving evidence on oath; for in the latter case, but not the former, he will be liable to have his criminal record brought out by the prosecution. In England, the right to make an unsworn statement derived from the time when the accused was not allowed legal representation (except in the case of misdemeanours), but for some years before the Criminal Evidence Act, 1898, the accused was allowed to make an unsworn statement about The facts whether or , not he was legally represented. It might have been expected that, when the 1898 Act allowed him to give evidence on oath, it would have abolished the right to make an unsworn statement as no longer serving any useful purpose. Instead the Act expressly preserved the right in keeping with the policy of the Act that pressure should not be put on the accused to take advantage of the new right to give evidence on oath. The learned members of the Criminal Law Revision Committee observed:

`We think that the time has come to reverse this policy.... We are strongly of the opinion that the right to make an unsworn statement about the facts instead of giving evidence on oath or affirmation should be abolished. Whatever justification there may have been for preserving the right in 1898: we think that nowadays the accused, if he gives evidence, should do so in the same way as other witnesses and be subject to cross-examination.'

We have not only followed the English practice by giving the accused the right to make an unsworn statement. We have gone even further than that by allowing him to tender or read out from the dock a written statement prepared by his lawyer. It does not appear to be in the interest of justice that the accused should have the advantages I have just mentioned, for what they may be worth. Clauses 10, 14 and 16 of the Bill therefore seek to change the procedure in trials before the Subordinate Courts and the High Court, abolishing the right of an accused to make an unsworn statement about the facts instead of giving evidence on oath or affirmation. If the accused refuses to give evidence on oath or affirmation the court may draw inferences as appear proper from the refusal, if without good cause. However, the accused shall not be compelled to give evidence on his own behalf.

Clause 11 proposes to require the accused to give notice to the Court or to the Public Prosecutor of particulars of any alibi, if such is his defence. If he does not give such notice, he shall not without the leave of the court adduce evidence in support of the alibi at his trial. In 1972 the Criminal Procedure Code was amended so as to require an accused to give notice of his alibi at a preliminary inquiry, but no such requirement was imposed in respect of a summary trial in the Magistrates' and District Courts.

Clause 23 of the Bill seeks to make radical changes to the rule against hear say evidence. This rule is summarised in the third edition of Professor Cross's "Evidence" on page 387 as follows:

Express or implied assertions of persons other than the witness who is testifying, and assertions in documents produced to the court when no witness is testifying, are inadmissible as evidence of the truth of that which was asserted.'.

The rule, however, is subject to a large number of exceptions, the best known of which are informal admissions and confessions, dying declarations, statements in public documents and some statements admissible as being part of the res gestae. But there are many other exceptions, some by common law and some by statute. Professor Cross has pointed out that the admission of certain kinds of evidence "can only be explained on the footing that there are many more exceptions to the hearsay rule than is commonly supposed".

The present law has caused a great deal of trouble owing to the difficulty of deciding whether a statement is hearsay, and, if so, whether it is admissible under any of the exceptions to the rule. The difficulty is further compounded by the differences between the English law of evidence and our law which is based on the Indian Evidence Act.

The scheme that the Bill proposes has the following purposes:-

(1) to admit all hearsay evidence likely to be valuable to the greatest extent possible without undue complication or delay to the proceedings;

(2) to ensure that evidence should continue to be given for the most part orally by allowing hearsay evidence only if the maker of the statement cannot be called or it is desirable to supplement his oral evidence; and

(3) to include necessary safeguards against the danger of manufactured hearsay evidence.

The proposals in this Bill relating to hearsay evidence adopt many of the recommendations contained in the Criminal Law Revision Committee's Eleventh Report. Certain modifications have been made to these proposals after considering the views expressed by the General Council of the Bar of England and Wales and the Council of the Law Society of England in their memoranda.

The opportunity has been taken to amend other sections of the Code to correct existing mistakes and anomalies as well as to expedite the administration of justice as when an accused wishes to plead guilty in the High Court.

It is proposed to refer the Bill to Select Committee where all representations will be given careful consideration.

Sir, I beg to move.

Question proposed.

5.05 p.m.

Mr N. Govindasamy (Telok Blangah): Mr Speaker, Sir, today no less than four Bills are being debated, which are intended to make substantial amendments to our judicial system. We have just had the Criminal Justice (Temporary Provisions) (Amendment) Bill passed. Now we are debating the Criminal Procedure Code (Amendment) Bill, and later we shall be going through the Evidence (Amendment) Bill and the Criminal Law (Temporary Provisions) (Amendment) Bill.

With the sudden introduction of amendments to so many of our Criminal Law Acts, one begins to wonder if all these pieces of legislation were defective. No evidence has been advanced so far to substantiate the need for radical changes which the passing of these Bills will have on our judicial practice.

Since there are so many hon. Members in this House with legal training, I would leave to them the intricacies of the debate in respect of legal matters. However, I would like to touch on two clauses of the Bill, namely, clauses 5 and 6 which, even as a layman, I feel I can comment on.

Clause 5 deletes the legal requirement to give a caution to a person under arrest before he is interrogated by the police. Instead, he is to be served with a notice advising him that adverse inferences may be drawn from his failure to mention a fact on which he is going to rely at his trial. This, to me, means a person arrested, even before he is charged, has to spill the beans. If he does not mention a fact that is later brought out in his trial, then adverse inferences would be drawn. During the course of a lengthy trial, all sorts of minor as well as major facts are brought out in court. If any one of the facts that is brought out in court has not been mentioned by the accused during the arrest and interrogation by the police, then, it is going to adversely affect the accused. This, I feel, is a fundamental deviation from the existing law.

Under clause 6, the accused cannot even remain silent. While being interrogated, the silence of the accused is to be taken as amounting to corroboration of any evidence against him. When he is being interrogated by a police officer who could even be just a police constable, the accused must be in a position to make up his mind immediately what line of defence he is going to take during the trial and must inform the interrogator the facts he is going to rely on for his defence. He has to make a decision even before he has an opportunity to consult legal counsel. There is no question of legal advice that he may have to seek in order to put up his defence.

I am sure there are many other points in this Bill that need further and more important comments which hon. Members from the legal profession in the House would no doubt make.

To me, these two clauses are sufficiently important as fundamental changes from the present procedures. To me, it means that if the police cannot secure evidence through detective work, they can get evidence by just arresting an accused and interrogating him. What he says or what he does not say is to be used as evidence against him. Are we trying to promulgate laws to cover up for police deficiency? Are our laws to be promulgated to rectify the ineffectiveness of police investigations? Is Parliament asked to do police work?

I am glad that this Bill is being committed to a Select Committee.

Mr L. P. Rodrigo (Serangoon Gardens): Mr Speaker, Sir, notwithstanding the report of the Criminal Law Revision Committee, I take the view that this Bill will have the effect of changing or removing altogether time-tested legal concepts and practices in criminal law. What is more, it will construct new instruments of prosecution for the prosecuting power of the State.

The provisions in the Bill are not selective provisions, selective in the sense that they relate to certain offences. They are blanket provisions. The meaning and implications of the changes described in the Bill are extensive and are not obvious. How they relate to criminal practice and the conduct of the court in its function of administering justice is highly important. The possibilities of clause 6 of the Bill, for example, where the accused's silence can corroborate the evidence against his own silent person are not easily discernible. The Member for Telok Blangah has also made reference to this clause with some expertise.

Clause 16 abolishes the right of an accused to make an unsworn statement and he runs the risk of having an adverse inference made against him if he refuses to give evidence, on oath without good cause. Whatever is contemplated by "good cause" is left extremely indefinite good cause for the court, good cause for the prosecutor or good cause for the accused person himself.

The changes in the Bill are indeed far-reaching and I am therefore glad that this Bill and the Evidence (Amendment) Bill are being committed to a Select Committee where they will be examined in greater detail. But at this stage. Sir, I wish to express the hope that all these changes which will facilitate prosecution of the criminal by apparently constricting the defence of the accused will not have the result of blunting the effectiveness of criminal investigation which ends with the apprehension of the criminal in the very first place.

Mr Barker: Sir, may I thank both Members for their criticisms and interest in this Bill which, as the Member for Serangoon Gardens says, makes radical and far-reaching changes. It is for this reason that the Bill is being sent to a Select Committee where, as I said, we would welcome representations which will be given very careful consideration.

At this stage I do not think I should take on both Members except that perhaps I should welcome them to the Select Committee.

Question put, and agreed to.

Bill accordingly read a Second time.

Resolved,

"That the Criminal Procedure Code (Amendment) Bill be committed to a Select Committee consisting of Mr Speaker as Chairman and seven Members to be nominated by the Committee of Selection."-[Mr E. W. Barker].