ATTORNEY-GENERAL'S FURTHER OPINION

3.37 p.m.

The Prime Minister: Mr Speaker, Sir, at the last meeting on Wednesday, the Member for Anson, in a supplementary to his question, had proposed that I could overcome the problems by withdrawing the charges against Phey Yew Kok, then appoint the Commission of Inquiry, and after the completion of the Inquiry, recharge Phey Yew Kok.

I had expressed my doubts then on the legal propriety of such a course of action. However, I thought it prudent that his proposal be referred to the Attorney-General since it is the Attorney-General and his DPP who are officially responsible for these functions. I have received the Attorney-General's Opinion (Cols. 561 - 566). Copies have been handed to the Clerk for distribution to Members. May I read his opinion? It is brief and to the point. Attorney-General's Opinion - FURTHER OPINION (Cols. 561 - 566)

This is the second paragraph onwards:

'For such an application for withdrawal of the charges not amounting to an acquiffal to succeed the Deputy Public Prosecutor must suppress the real intention, namely, to reinstate the charges at the end of the Inquiry. This will be deceitful. Moreover such a move will not automatically end the state of affairs sub judice. As the law now stands, matters may assume the status of being sub judice at a stage even before the accused is charged in court. That this is well senied law is borne out by the Report of the Law Reform Commission of Canada where in a comprehensive survey of the law of contempt throughout the Commonwealth, restates the position thus -

"Contempt can be committed even before the trial itself has begun. It is enough to show that litigation is imminent." To me this rule seems logical and compelling. The fountain of justice must not be poisoned at its source. See R v Parke 1903 2 K B, 432 at page 438. Further, my view is supported by the conclusion of the English Committee charged with reforming the law of contempt. It confirmed in its recommendations that the period should begin at "the moment the suspected man is charged or a summons served . . .". See Report of the Committee on Contempt of Court, H.M.S.O. Cmnd. 5794. 1974.

Accordingly, the withdrawal of the charges not amounting to an acquinal, would not terminate the state of matters sub judice in the case against Phey Yew Kok when it is the intention to reinstate the charges after the Commission of Inquiry. To end the state of matters sub judice, nothing short of a Nolle Prosequi is required, which would then result in an acquittal of all the charges Phey Yew Kok now faces and which would then of course preclude any subsequent prosecution.

Any Deputy Public Prosecutor or counsel for the prosecution must feel demeaned if he were asked to make an application for withdrawal of these charges in the circumstances. To illustrate the bizarre nature of this proposal, let us consider what is required of a DPP in asking for a withdrawal of the charges against Phey Yew Kok. If he discharges his duty to be candid to the court, he must explain to the couM that it is the Government's desire to enquire into inter alia the merits of the case against the accused, i.e. to determine his guilt or innocence, albeit in his absence such an application is being made and then to bring back the charges against the accused. Any Judge presented with such an effrontery to its dignity and rectitude must dismiss the application as an abuse of the process of the court.

To succeed in the application the intention to reinstate the charges must be suppressed. The duplicitous nature of such a manoeuvre if carried out cannot but bring the whole system of Government, and in panicular, the administration of justice, into disrepute.'

Mr Speaker, Sir, the Member had some 48 hours to reflect on his problem, and if he has other proposals which are as ingenious but less flawed in overcoming or circumventing the legal impediments to his original objective, I stand ready to give it serious and due consideration.

Mr Speaker: Any questions, Mr Jeyaretnam?

Mr Jeyaretnam: May I make a statement, Sir?

Mr Speaker: You have to ask questions, I am afraid. The Standing Orders say you may ask questions following a Ministerial Statement.

The Prime Minister: Mr Speaker, Sir, may I help the hon. Member? He could make a statement and turn it around by way of a question. I have no objections to that.

Mr Speaker: All right. Mr Jeyaretnam.

Mr Jeyaretnam: I am indebted to the Hon. Prime Minister. It was not my intention to suggest that the purpose of the withdrawal should be suppressed from the court. Does not the Prime Minister think that there is some confusion in this Opinion between contempt of court and whether a matter is sub judice or not? I think there is some mixing of the two views which has led to some confusion.

The Prime Minister: Mr Speaker, Sir, do I understand the Member to ask for my opinion whether the Anorney-General is confused as to what he has written?

Mr Jeyaretnam: Mr Speaker, Sir, that is exactly my question. Would the Prime Minister say whether in his view there is not a confusion between two quite different matters: one is contempt of court and the other is whether a matter is sub judice or not?

The Prime Minister: Mr Speaker, Sir, I am not the Government's principal legal officer. I used to practise the law and I can only give him my opinion from general principles deriving from my experience with the law.

Without touching on the scholarly research that has gone into the Afforney-General's Opinion in which he has cited three authorities -the Canadian Commission, the English Commission and an indictor from a particular case in the King's Bench Division - I would have thought it obvious that the matter is in contempt of court not only because something which is sub judice has been touched upon adversely and affected the course of justice but also other acts which bring the court into disrepute. In other words, contempt of court includes more than just touching on matters sub judice. But to touch on matters sub judice specifically is contempt of court. So if he were to ask me (and this is gratuitous advice I am giving) contempt is the genus; sub judice is one of the species under the genus. I see no relevance between that classification and what the Anorney-General has said. I think my colleague, the Minister for Law, and his Minister of State who until very recently has been teaching law at the University will bear me out when I say that.

When we were presented on Wednesday with the ingenious proposal that we should withdraw the charges not amounting to an acquittal, I must confess that I was confused and flummoxed. So I asked if the Member suggested that we enter a nolle prosequi which, for the purposes of Members not familiar with these things, means that the Attorney-General says, "I will not prosecute", which means an acquittal. I work on first principles. The Member then suggested that we should go to the court and ask that the ch;irges be withdrawn but not amounting to acquinal, and he then cited his experience as Deputy Public Prosecutor of which he was one for several years, where he had done such acts and got charges withdrawn without it being considered an acquittal, because witnesses were absent.

I thought it prudent that I should not be the Government's legal officer. I gave my response off-the-cuff. I expressed my reservations. I sent it to the Anorney-General for his considered opinion. The Aftorney-General is on record. His professional competence is being challenged by the Member for Anson.

If he is confused, I suggest the Member for Anson take the matter up, get the Attorney-General properly disabused of his confusion and reintroduce his proposal in this House.