CRIMINAL PROCEDURE CODE (AMENDMENT) BILL

Order for Second Reading read.

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

In line with the increase in the civil jurisdiction of the District Courts, it is also considered necessary that the criminal jurisdiction of the District Courts be also increased. At present a District Court has jurisdiction to try all offences for which the maximum term of imprisonment does not exceed seven years or which are punishable with fine only. The Bill will extend the jurisdiction of a District Court to try all offences for which the maximum term of imprisonment does not exceed 10 years. In addition, the Bill will empower a District Court to try all offences, except an offence punishable with death, where the Public Prosecutor applies to the Court to try any such offence and the accused has so consented to be tried.

The Bill will also enhance the general power of a District Court to impose sentences of imprisonment and fine. At present a District Court can impose imprisonment for a term not exceeding five years and fine not exceeding $5,000. Clause 4 of the Bill will empower a District Court, to impose imprisonment for a term not exceeding seven years and a fine not exceeding $10,000.

This Bill does not affect the specific jurisdiction and powers of a District Court conferred by legislation, such as the Misuse of Drugs Act, and other legislation which exceed those provided by the Criminal Procedure Code.

Sir, I beg to move.

Question proposed.

Mr Jeyaretnam: Mr Speaker, Sir, as the Minister indicated, this Bill is in line with the Bill which we have just taken through all stages, with the difference that this

Bill seeks to give the District Judges greater jurisdiction in criminal cases. I wonder whether the Minister is in a position to tell us what would be the increase in the workload for District Judges in criminal cases with this amendment. How many cases would then be transferred or brought before the District Courts in excess of what they are already hearing at the moment? I make the same remarks about the need, and particularly in criminal cases, to see that cases are dealt with as expeditiously as possible, and that there should be no further delay caused in the hearing of criminal cases as a result of the District Judges being overloaded with work. Criminal cases should take priority over civil cases, and I hope that that will be borne in mind by the Ministry and by the others who regulate hearings in the courts.

Mr Speaker, Sir, when I spoke on the earlier Bill and about the independence of our District Judges, I said I would have something more to say when we come to discussing this particular Bill, the Criminal Procedure Code (Amendment) Bill. And before I move on to say something more, I propose to say that more than in civil cases there is a need, a greater need, that the public should have confidence in the administration of criminal justice. If there is no confidence, or if that confidence is eroded even in a small measure, then the result would be the collapse of the society. Because if you have no faith in the administration of criminal justice which seeks to punish members of the society, then you begin to lose faith in the society itself. So it is as important as that, the administration of criminal justice. Because that, as I said, seeks to apply sanctions against members of the society.

I mentioned, speaking on the other Bill, about the free transferability of District Judges from the courts to the Attorney-General's Chambers or to other departments. The Minister, in replying, would seem to dismiss the idea that there is any compulsion or there is any fear felt among District Judges about displeasing the Executive. Mr Speaker, Sir, in the beginning of 1984 a Senior District Judge, and he is the head of the Subordinate Courts, a man whose next elevation should be the High Court Bench, delivered judgment in a criminal case. Some months later, he was removed and he was transferred to the Attorney-General's Chambers. That was not a promotion. As I said a minute ago, a promotion would have been to the High Court Bench. Prior to that, two Senior District Judges (one of them in his time was not designated a Senior District Judge but was designated First Magistrate), two incumbents of that post, were elevated to the High Court Bench as permanent High Court Judges. A third one was also elevated, except that his appointment was made temporary and he held the appointment of a High Court Judge for two years at a time. I suppose, for completeness sake, I should mention there was another transfer of an incumbent of that post to the Attorney-General's Chambers to a post which was higher than the post that he was occupying as Senior District Judge. He went there as Acting Solicitor-General or may even be to the substantive post of Solicitor-General.

But in this particular case, Mr Speaker, Sir, the Senior District Judge, a very senior qualified man, was removed from that post and transferred to the Attorney-General's Chambers, to a post not higher than the post of Senior District Judge but to a post which was on level with the grade that he was then holding in the Legal Service. This is what I was talking about when I spoke on the earlier Bill. It did not need a foreign journal to say that that transfer was a demotion. May I say that many people in Singapore thought that that transfer was a demotion for that District Judge. So much for the independence of the District Judges who administer the criminal law. I would ask the Minister to consider this seriously because this is a matter which concerns the confidence of the people in the administration of criminal law and justice in this country.

Mr Speaker, Sir, if I may elaborate further, there is another instance; perhaps I should have classified that "the case" is my own case. I have no personal pecuniary interest in this but I must relate my experiences in this House. In 1985, when a re-trial was ordered on one charge, the trial was originally fixed for hearing before a particular District Judge in the Subordinate Courts. That District Judge had never been in the AG's Chambers. He had had a long tenure as District Judge. But a month before the trial began, the solicitors were informed, when they appeared, that the case would be transferred to the Senior District Judge who had replaced the Senior District Judge who tried the case in 1984. And this Senior District Judge had come from the AG's Chambers. The solicitors were not told the reason except that the particular District Judge, who should have heard the case and before whom the case had been fixed originally, had been selected to attend a conference abroad. Well, I know District Judges must attend conferences, but it might be illuminating to know who decided that he should attend a conference abroad which clashed with the hearing of this case. So the result was that the case was transferred from a District Judge, who never had anything to do with the AG's Chambers, to another court where the Senior District Judge, as I said, had come not too long before that from the Attorney-General's Chambers.

That, Mr Speaker, Sir, I am sorry to have to say this, that was not the first time. There were at least two other instances, and I know this personally. There was one case where, after a decision was given, the man was transferred. That was about four or five years ago, and there was one case much earlier than that. These decisions were not acceptable. So what independence of the Subordinate Judiciary is there if the public see these things happening? The District Judges are under threat or fear of being transferred from their posts when they administer justice, whether it is civil or criminal. That is why I say that it is important, I see it as of cardinal importance, that if we are to maintain the structure of our society as a democratic society, as a stable society, as a society in which every member can repose confidence, then the Subordinate Court Judiciary should be seen to be immune, as I said, from the displeasure of the Executive. Unfortunately, the public do not see that at the moment. The public see that the District Judges are not immune and that they may suffer the displeasure of the Executive. So whatever the Minister may say, the public have a different impression.

The other point that I wish to bring up is the question of appeals. Mr Speaker, Sir, in the Supreme Court of Judicature (Amendment) Bill, we have now increased the amount before which an appeal may be taken from the Subordinate Courts to the High Court. Previously, it was $500 and now it has been increased. So the limit for civil cases in the Subordinate Courts which bars them from appealing is $1,000 or $2,000, whatever it is. But once they go up to the High Court and, provided the claim is $2,000 or more, they can take their appeals to the Court of Appeal. And if they are still not satisfied with the decision of the Court of Appeal, they can go up to the Privy Council without leave. I say "without leave" advisedly because it has been held by the Privy Council that the leave stipulated in the Judicial Committee Act is merely a formal leave and that there is no discretion in the Court of Appeal to refuse to grant leave in civil cases where the amount qualifies for appeal to the Privy Council.

So you have a situation where a man with a $5,000 claim in the High Court can go right up all the way to the Privy Council. But the position is completely different when it comes to criminal cases. And now, Members, we have just been asked to give jurisdiction to the District Judges to try criminal cases where the maximum punishment provided is 10 years. But as the Minister has pointed out, there are a number of other Acts which provide for heavier punishment than 10 years and which have given the jurisdiction to the District Judges. And, as he also pointed out, except for capital cases where the death sentence is mandatory, the District Judges may try any case provided the Public Prosecutor makes the application and the accused consents. So we have the position that District Judges can try criminal cases of great magnitude except for cases which carry the death sentence, and they can impose sentences up to seven years under the Criminal Procedure Code. But under the Misuse of Drugs Act, they can impose much more. They can put a man away for 20 years.

Now, what remedies does this man have if he thinks that the conviction is wrong, that it should be looked at? At one time, Mr Speaker, Sir, in criminal cases, one could go right from the Magistrates' Courts to the Privy Council. Even a simple criminal case could be taken up to the Privy Council by a person if he thought that he had been wrongly convicted. But today, Sir, if a person is convicted in the Subordinate Courts, he may be sentenced to seven years' imprisonment, he may be sentenced to 20 years' imprisonment, what remedy has he got? It is not that he has not got any remedy. He can appeal under the Criminal Procedure Code to the High Court. It goes before a single Judge of the High Court. There is a provision in the Criminal Procedure Code which provides that if the Public Prosecutor requests, it can be put before three Judges or if the Judge himself thinks it should go before three Judges, it can be put before three Judges. But normally it goes to a single Judge. So we have an appeal from one District Judge and now we are giving him jurisdiction almost equivalent to the High Court Bench, from him to another single High Court Judge and it stops there.

Perhaps I should qualify that and I will qualify it. There is a provision in the Supreme Court of Judicature Act which provides that an accused, after he has been convicted in the Subordinate Courts and has appealed to the High Court and has his appeal dismissed, may apply to the Judge who heard the appeal to refer questions of law to the Court of Criminal Appeal. He may apply and the Judge who heard the appeal himself has to decide whether he would allow the reference on the questions of law to the Court of Criminal Appeal. And if the Judge refuses to refer the questions of law to the Court of Criminal Appeal, the man cannot take his case up to the Court of Criminal Appeal. But, and this is where it is so unequal in this society, Members of this House, if the Public Prosecutor asks the High Court Judge - for example, if the High Court Judge should allow the appeal and acquit the man - to refer the questions of law to the Court of Criminal Appeal, then the Judge has no discretion. He must refer those questions of law to the Court of Criminal Appeal, and so the Court of Criminal Appeal becomes seized of the matter and there it can be heard by three Judges sitting together and deliberating on the matter. But an accused person has not got that right. This is why I said the administration of the criminal law and justice here would appear to be unequal. It is weighted in favour of the Prosecution and it discriminates against an accused's remedies.

There is much to be said for a two-tier system of appeal. I think it is important, particularly in the serious criminal cases where a person is tried before a District Court and sentenced to seven years' imprisonment or five years' imprisonment. We are concerned with the man's liberty. Do we equate his liberty to below $2,000? We allow an appeal to the Privy Council in civil claims for $2,000 but a man who is sentenced to seven years' imprisonment may not appeal. Is that the price we put on a man's liberty? Is that the value we attach to the freedom of the individual? We should think about this. Why this undue preference for monetary claims and not enough attention being paid to the claims of liberty and freedom of the individual in this country? The only thing we can do about this is to provide automatically a right of appeal for an accused person, who has his appeal from a Subordinate Court dismissed by the High Court Judge, to the Court of Criminal Appeal. I know the answer may come from the Minister that in that case the Court of Criminal Appeal will be inundated. There will be so many appeals coming in. Every accused person will want to have another bite. But why not, if he thinks it should be looked at again. One answer to this fear that the Court of Criminal Appeal may be inundated with appeals if that is allowed would be to restrict appeals from the decision of a High Court Judge sitting on an appeal from the Subordinate Court to appeals which raise substantive questions of law. This can be done where the Counsel certifies that there are questions of law.

The other thing is that the Minister is perhaps aware that the Court of Criminal Appeal itself has the power to dismiss summarily any appeals if it thinks there are no substantive questions of law involved and all are pure questions of fact. 0So there is enough power in the courts to administer this, so that the Court of Criminal Appeal is not inundated with criminal appeals from all and sundry persons. But what is important is that the administration of criminal law and justice should be seen to be done fairly and to protect the individual and that he is not harshly prevented from seeking his remedies.

I have mentioned the provision in the Supreme Court of Judicature Act which provides for reference to the Court of Criminal Appeal. I said that it was purely left to the appellate judge to decide whether he should refer the questions to the Court of Criminal Appeal. I asked the Registrar of the Supreme Court if he would let me have the number of cases since the provision was enacted in which reference was permitted by the appellate judge to the Court of Criminal Appeal. He said he was unable to give me the number of cases. But I know myself over the past few years that most of the applications were refused so that the accused had no further way of testing his convictions.

This provision is also to be found in the Malaysian Supreme Court of Judicature Act. The Minister may be aware that in 1982 or so the Malaysian Parliament amended that provision to enable an accused person who has his appeal dismissed by the High Court to make an application, not to the judge who heard the case but to the Federal Court, as it was then known, for the questions to be brought before it. That is an improvement so that the three judges then can decide whether those questions are questions that should be brought before them and not left to the decision of the judge who tried the appeal himself.

I am sorry, Mr Speaker, Sir, I have taken up your time, but I would urge the Minister to give consideration to this. As I said, it is important that in our administration of criminal law and criminal justice, we should be seen to be acting fairly, and that the scales are held fairly between the prosecutor and the accused, that the Prosecution is not given undue advantage over the accused.

Mr Chiam See Tong: Mr Speaker, Sir, the amendment to the Criminal Procedure Code and the Subordinate Courts Act is to increase the jurisdiction of the Subordinate Courts. The reason is there are too many cases in the High Courts. By bringing over the cases to the Subordinate Courts, the number of court houses and the judges there will have to be increased. I wonder if the Minister could tell us whether, to solve this problem, the Government is considering increasing the number of Judges in the High Court.

Prof. Jayakumar: Mr Speaker, Sir, to reply to the Member for Potong Pasir, it will be helpful if he is present in the House in the discussion of the Bills in which he has an interest. I have already said earlier in the debate that the Ministry of Finance has approved the creation of seven new -

Mr Jeyaretnam: Please answer the question. It is Judges of the High Court he is asking.

Prof. Jayakumar: Seven new judicial appointments and the creation of seven additional courts.

Mr Chiam See Tong: High Court Judges.

Mr Jeyaretnam: Please answer that question. Judges of the High Court.

Prof. Jayakumar: Mr Speaker, Sir, the Member for Anson can speak later, after I have finished my reply. Replying to the Member for Anson, I do not have the figures for the criminal cases which would be now going to the Subordinate Courts, but I understand that they are in the minority and the majority of cases would be the civil cases.

As for the rest of what he has said, it is in fact a regurgitation of what he said in the Second Reading of the Subordinate Courts (Amendment) Bill. Although he has made a long speech on the importance of appeals and administration of justice, clearly, Sir, his is a jaundiced view. For when he talks of the views of the public, what he really refers to is his own views. And his own views cannot be taken seriously or completely impartially here, for as he himself has said, that he is an involved party in the cases which he has referred to in this House. The Judge whom he refers to was involved in the case in which the Member for Anson was a party. So how can he expect this House to take his views as being serious. And really, Mr Speaker, Sir, he has decided who is fit for promotion and who is not fit for promotion. He says that particular Judge should have - this is his own words - "should have been promoted." I do not know. I do not sit on the Legal Service Commission.

Mr Jeyaretnam: Point of clarification, Mr Speaker, Sir. The Minister for some reason known to himself clearly wants to completely misunderstand what I said. I did not say "he should have been". I said "if he were to be promoted, the next promotion would have been the High Court Bench". I did not say, "You should have promoted him to the High Court Bench." Please try and follow what I said.

Prof. Jayakumar: Mr Speaker, Sir, I was taking notes up to a point after which I gave up, and I made it a point to put in quotes his words that this particular Judge "should have been promoted" had his transfer not taken place. I do not know. He may be worthy of promotion, he may not be. But these are, as I have said, matters for the Legal and Judicial Service Commission headed by the Chief Justice, and I would leave it to them to take the decision.

He has made a second point that all these transfers which he referred to were because the decisions were not acceptable. This is a statement which he should justify here as to how he comes to the conclusion without mentioning how many other transfers there have been in the past year, two years or three years. As I said, Mr Speaker, Sir, these views of the Member for Anson, which he presents to the members of the public, is a jaundiced view of a person who has not had satisfaction in the courts as he would have liked.

As to appeals, he spent a great deal of time talking about appeals. I have one very simple question. How many countries are there in the world that he can refer to where there are appeals to the Privy Council in criminal and civil cases? I would like him to mention them, other than Singapore. That is the litmus test of our judicial system's independence.

That is all I have to say, Mr Speaker, Sir, in reply because the vast majority of the points that he has made are not related to the contents of the Bill.

Mr Chiam See Tong: Mr Speaker, Sir, the Minister has not answered my question yet. I would like to know whether any more High Court judges will be appointed because of the flood of cases.

Prof. Jayakumar: Mr Speaker, Sir, may I suggest to the Member for Potong Pasir that he kindly refer to the debate which took place in this House in 17th March, 1981, (Hansard, cols. 695 onwards) where the Prime Minister spoke of the need for High Court judges and of the difficulty in getting High Court Judges. And if the Member for Anson or the Member for Potong Pasir have names to suggest to us, other than themselves, I will be willing to put it to the Prime Minister if there is such a suitable person.

Mr Jeyaretnam: The Minister has asked me to reply to his point about which countries provide for appeals to the Privy Council in criminal matters. The Minister must know that Singapore does not provide for appeals to the Privy Council. One has to go to the Privy Council again and get special leave from the Judicial Committee of the Privy Council before one can take up the appeal to the Privy Council. So here you do not provide it. We have to go to the Privy Council for permission before we can take an appeal to it.

Secondly, the Minister wants to know how many other countries provide for appeals to the Privy Council. Hong Kong is one. There are a number of other countries which still retain the Judicial Committee's Appeal. But the point is this. Would the Minister tell the House in how many countries does an appeal stop with the first appeal? And in how many countries does an appeal stop with the first appeal? Would the Minister tell this House in how many countries does the Public Prosecutor have an unqualified right of appeal from an acquittal? Would he tell us that? Would he also tell us in how many countries does the Public Prosecutor have a second right of appeal, as I told the House, in this provision, from the appellate judge's decision if the Public Prosecutor requests it? Will the Minister answer those questions?

Prof. Jayakumar: Mr Speaker, Sir, I do not wish to prolong this debate. I have asked a simple question ---

Mr Jeyaretnam: You answer my questions.

Prof. Jayakumar: As for the number of countries whose systems permit appeal to the Privy Council, he will find only a handful of countries, and Singapore is one of them. As to the other questions, if he wants answers, I think he can enrol in an extramural course in the University. But even when an appeal is stopped, and if leave is not given by the Court, surely he knows that one can still appeal to the Privy Council against the decision refusing leave.

Question put, and agreed to.

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

The House immediately resolved itself into a Committee on the Bill. - [Prof. S. Jayakumar].

Bill considered in Committee.

[Mr Speaker in the Chair]

Clause 1 -

The Chairman: The citation year will be altered from "1985" to "1986".

Clause 1 ordered to stand part of the Bill.

Clauses 2 to 4 inclusive ordered to stand part of the Bill.

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

3.33 pm