CRIMINAL PROCEDURE CODE (AMENDMENT) BILL

Order for Second Reading read.

The Minister for Law (Prof. S. Jayakumar): Mr Speaker, Sir, I beg to move, "That the Bill be now read a Second time."

The purpose of this Bill is to amend the procedure applicable in trials involving capital offences. At present, the procedure is that such capital cases are conducted by two judges who are required to arrive at a unanimous decision. If there is disagreement, the accused could be convicted for a lesser offence. This requirement of trial by two judges was introduced in 1969 when jury trials for capital offence cases were abolished.

It may be of interest to Members to know that about ten years before that amendment, all criminal trials before the High Court (not just capital cases) were tried by jury. However, this was amended in 1960 and thereafter only capital offence cases were tried by jury. The procedure for all other cases was substituted by trial by a Single Judge sitting alone.

When the then Law Minister, Mr E. W. Barker, moved an amendment to the legislation to abolish trial by jury for capital offences in 1969, he referred to this earlier 1960 amendment and said:

'Where the changes brought about [ie, in 1960] have been so successfully implemented, may it not be asked, whatever the objectives to these changes proposed in this Bill, why have they not been extended to cover all criminal cases irrespective of the penalties involved?'

Sir, in a sense, therefore, this amendment can be said to be a logical conclusion to the amendments made in 1960.

The proposed amendment in this Bill will change the procedure so as to enable a single judge of the Supreme Court to hear and determine such capital offence cases. I may add that a transitional provision provides that the present procedure will continue to apply to any trial which has already commenced before a Court of two Judges before the coming into operation of this amendment.

Sir, this Bill is to give effect to the recommendation strongly urged upon us by the Chief Justice and his brother Judges that such a legislative amendment be passed by this Parliament.

The Chief Justice had in fact written to me last year forwarding his recommendations. He then spoke on the need for this change to the law at the opening of the Legal Year on 4th January 1992.

So that Members can understand what led the Chief Justice and the Judiciary to propose this amendment, I think it is necessary for me to quote in extenso extracts from the Chief Justice's speech at the opening of the Legal Year, and he said:

'The main problem area which remains is in the disposal of capital cases in the High Court, where cases may take 10 days or more and take up the time of two judges in each case. A study done in mid-year showed that the 17 cases which had then been fixed for hearing, none of which were unusual, had been estimated by both prosecution and defence counsel to require 233 court days, or 466 judge days. If the remaining 52 cases then awaiting dates for hearing were to be assessed at the same rate, we would need more than 1,400 judge days. This is a requirement of a magnitude which we simply cannot meet, with the present inflow of capital cases and our limited judicial resources.'

Still quoting from the Chief Justice:

'The practice of using two judges in trials of capital offences was introduced more than 20 years ago, when we did away with jury trials for murder. It is a practice which is peculiar to Singapore. In view of our present requirements, and the experience which we have gained, the time has come when the practice should be changed. Section 194 of the Criminal Procedure Code which provides for two judges should be amended, so that capital cases will henceforth be tried before a single judge. This would enable the courts to deal with more cases, and reduce the waiting times. It is of course a matter for Parliament to decide, but it is a decision which, for the more efficient functioning of the courts, should not be delayed. In the event of a conviction by a single judge, there is an appeal to three judges in the Court of Criminal Appeal, and, unless all three judges are unanimous, there is presently a further appeal to the Privy Council. On the other hand, there is the ugly and unacceptable risk that, if the waiting time for such cases is not shortened, an accused person who is eventually acquitted may have spent several unnecessary years in prison before his acquittal. The present Judges and Judicial Commissioners of the Supreme Court who live most closely with this problem have been used to sitting in pairs, and thereby to sharing the weight of responsibility; but they recognise the serious nature of the problem and are ready and prepared to sit singly, if the law is changed. To achieve a fairer trial of capital cases, it occurred to me that what is even more important than having them heard before two judges is to have them prosecuted by two DPPs and similarly defended by two counsel. The Attorney-General has readily agreed to the suggestion. Accordingly, in all capital cases in future in which the accused persons have not engaged their own counsel, arrangements will be made for the two counsel to be assigned to the defence.'

Sir, let me underscore the following points made by the Chief Justice in the extract which I have just quoted.

Firstly, the serious problem of delays. He said that more than 1,400 judge days would be needed for trial of the remaining capital offence cases. Secondly, the serious risk which he referred to, if we did not do anything about it, that an accused person may spend several years in prison on remand before the trial is heard and he is acquitted. Thirdly, that his proposal has the concurrence of all his brother Judges and Judicial Commissioners. Fourthly, although it is up to Parliament to enact or not to enact such an amendment, the Chief Justice stressed that Parliament should not delay the enactment of such a law in the interests of a more efficient functioning of the courts.

Sir, the Government accepts the recommendations of the Judiciary because their reasons are sound and compelling. Furthermore, they are the unanimous recommendation of the entire Supreme Court Bench who, as the Chief Justice has said, has lived and worked very closely with the existing system.

I hardly need add, Sir, that this problem which the Chief Justice refers to exists even though we have had a 100% increase in the size of the Supreme Court complement of Judges. It is also despite various improvements to procedures, such as pre-trial conferences and measures to try and control the use of court and judicial time.

This change of procedure will ensure speedy disposal of capital offence cases. It would also ensure that future trials of capital offence cases will not be inordinately delayed, and will avoid keeping persons in custody and in a state of suspense as to their fate for an unusually long time. Members may recall reading a case in the newspapers some years ago, which was a Malaysian case, where the Judge lamented that the accused persons in that case had been kept in custody for nearly five years before the case went to trial. The Judge expressed his "grave displeasure at the intolerable delay in the disposal of these cases", and he called it "a public scandal". We should try never to have this situation in Singapore.

I should add that this change does not adversely affect the fairness of the trial. The law has always been that it is for the prosecution to prove the guilt of the accused beyond all reasonable doubt. In other words, the court will not convict unless it is proved beyond all reasonable doubt that the accused has committed the capital offence for which he was charged. The Bill does not change this aspect of the law in any way.

Even where the accused has been convicted, he can still appeal to the Court of Criminal Appeal and if, in the Court of Criminal Appeal, the three appellate judges are not unanimous, there is presently a further appeal to the Privy Council.

Sir, this change in the law would result in the improved functioning of the courts by avoiding long delays in the hearing of capital cases. It will undoubtedly improve the overall administration of justice. It does this by enabling the expeditious disposal of criminal and civil cases because the Judges who would otherwise be occupied with accompanying their brother Judges in the same court in hearing a capital offence case, can then be assigned to hear other capital cases or other criminal or civil cases.

Sir, I beg to move.

Question proposed.

Dr Arthur Beng Kian Lam (Bedok GRC): Mr Speaker, Sir, the changes that are proposed, that is, we have one judge for capital cases is a move that has merits but also has its dangers. However, the Chief Justice and his colleagues in making this proposal have been mindful of these and have built in safeguards.

What are the merits? Firstly, waiting time is shortened. Today, the situation is such that the inflow of capital cases is much more and much faster than the clearance of the backlog. If we remind ourselves, as the Minister has told us, while awaiting trial an accused person may spend several years, unnecessary years in prison, before his acquittal, this proposal has merit. To the innocent, this will be welcomed.

Secondly, more judges will be available to clear the backlog, not only capital cases, but all cases of the High Court, that is, more judges will be free to hear other cases and make the more efficient running and managing of the courts here a real possibility.

What are the dangers? When two judges are sitting on the Bench, the responsibility is of course shared. The combined knowledge and wisdom of two persons would definitely be more comforting than that of one single person. This is the obvious danger. However, at the end of it all, the main question that must be addressed is, will the accused person have a fair trial? Here, if the answer is yes, then the proposal becomes acceptable.

Two amendments, I believe, will help to achieve this aim, firstly, two DPPs for the prosecution and two defence counsels. Thus, more minds are brought to bear on the case to compensate for one person being on the Bench, instead of two. In this connection, I would like to ask the Minister whether the cost to the accused will be doubled. However, there are some lawyers who have expressed their concern whether this will be an effective check. Will the Minister please comment?

Secondly, avenues for appeal. The appeal will be to three judges in the Court of Appeal and, unless all three judges are unanimous, there is a further appeal to the Privy Council. This, I believe, is a good safeguard.

Mr Speaker, Sir, in supporting this Bill, I would like to commend the Chief Justice and his brother judges on the Bench. As a doctor, I know how heavy the responsibility and burden it is when it comes to making decision regarding life and death, for example, in cases which require dialysis, cancer treatment and in certifying death and turning off the respirator. It is indeed commendable that the Chief Justice and his brother judges on the Bench have agreed to accept this onerous responsibility of sitting singly in capital cases, which is essentially carrying on themselves the burden of pronouncing death or innocence in capital cases.

Mr Ling How Doong (Bukit Gombak): Mr Speaker, Sir, in 1969 when the jury system was abolished, and in its place substituted by two judges, I am quite sure Parliament must have got reason why, instead of one judge, a law was passed to have two judges sitting over the hearing of all capital punishment cases, which means the death penalty. And in Singapore, it is mandatory death penalty. It is not like in some other countries where a person may be sentenced to death. In Singapore, it is mandatory death sentence.

From 1969 until now, has there been a change in the circumstance that warrants such a very serious amendment? Has there been a change? The only point made by the Minister was the question of time, that is, it takes too much of the judges' time to hear capital punishment cases, and we therefore need to amend the law to reduce the time required. My question is this. In a trial for capital punishment cases, a man's life is at stake. It may be his last chance before the court, and it may be his last chance on this earth to plead for innocence. I am not one who supports the guilty. I say the guilty must be sentenced and be dealt with in strict accordance with the law. But I am voicing the view whether there is a likelihood of an innocent person being convicted.

You have read in the newspapers of late that in England, they have a spate of miscarriages of justice. This has been reported, I think, two weeks ago. If that could happen in England, I see no reason why it could not happen here.

The advantage of having two judges is very obvious. As Dr Arthur Beng has mentioned earlier, the wisdom of two men is always better than one. Furthermore, if you have two judges hearing the trial involving capital punishment, it means that if there is disagreement among the two, the man's life is spared. It is reduced straightaway from death penalty, perhaps, to life imprisonment. If you have a trial by a single judge, it is going to be mandatory death penalty.

I am urging this House to consider this factor. If time is an important factor, because it is going to take too much of the judges' time to hear these cases, I would like to know the statistics. Show us the statistics from 1969 until now, how many such cases have gone on trial, and how long was he detained before he was acquitted? Give us the statistics. Do not compare with Malaysia. Because, in Malaysia, I read in the newspapers that some cases are even 20 years old. Judgment has not been written for 20 years. Can we compare with Malaysia? No. If you want to support the amendment, give us the statistics. Tell us how many people have been detained for a long period of time, and after the trial, they have been acquitted. We hear nothing of that sort. Supply us with statistics to convince us that this amendment is necessary.

Sir, despite the fact that we are going to have two DPPs and two defence counsels to be assigned to the accused, one must fully understand the working of a trial. You may have five judges in a Court of Appeal. At the appeal stage, only evidence adduced at the trial can be considered by the appeal judges, and you must always remember the trial judge would only consider a question of law, and not of fact. What happens if the law had been shut out at the trial stage? In other words, at the lower Court, ie, at the trial Court of the first instance, where you have one judge hearing the case, certain questions may be disallowed. If the counsel fails to proceed further on that, and you are going to appeal to the Court of Appeal, it is of no use. Because those facts which may help the accused cannot be adduced at the trial Court. There is this danger there. And is there an assurance to this House that qualified counsel will be assigned to defend the accused?

Sir, not very long ago, there was one case of a counsel who had got no experience in criminal law. It was reported in the Straits Times. Because the accused was too poor, the State assigned a counsel for him. And what happened at the trial half-way? He did not know what questions to ask at all. And, in fact, when he was assigned, he objected very strongly to the Registrar and said, "I have no experience in criminal law." But they insisted that he carried on with the defence. And at the trial stage he stood up and said, "Well, I told you in the first place I don't understand criminal law. Yet I have been forced to take on the defence." And he was discharged. Sir, imagine for a moment, when a counsel who has no criminal experience being assigned to do a job, and he does not tell the Court that he has got no experience because he feels that it is a duty to the Court to take the assignment. It will result in tremendous injustice to the man. And not just imprisonment, his life might be taken away. Is it fair, therefore, that we should amend the law where you have a single judge hearing the last trial of this man?

Unless there are better safeguards than this, and unless there are better reasons other than it takes the court a longer time to hear such cases, I think there is no reason at all to amend the law. Delay in the trial is no reason at all to reduce from two judges to one, especially in the case of capital punishment. All of you are aware of the fact that, and I repeat again, in Singapore, the death penalty is mandatory. When you are found guilty, the only sentence that can be passed is death. There is no in-between to say that he may not be sentenced to death. Then the court will say, "Fair enough. I give you 10 years in prison. Or I give you life imprisonment." But it is going to be death, and death only.

Sir, in this respect, I am not in favour of this amendment. As I said earlier, firstly, there are no statistics; secondly, can we afford to stint on time when a man is facing a life-and-death struggle? I urge this House to seriously consider this matter because even in the UK we have cases of innocent men being hanged. And to follow the British justice, it is better that 10 accused go free than one innocent man hanged.

Mr Ho Peng Kee (Sembawang GRC): Sir, I support this Bill. As the Minister has said, it is important to see this Bill in context. Since assuming office, the Chief Justice has introduced several innovative measures to improve what he sees as a serious problem in our judicial system, and that is, the delay in the administration of justice. And these measures have been bold ones, including the introduction of night courts, employment of law justice clerks, and the requirement for written submission for appeal. An important aim of this exercise is to clear the backlog of cases existing and to ensure that new cases are heard early.

Like my colleague, Dr Arthur Beng, has mentioned, the Chief Justice is to be complimented for wanting to introduce this amendment in this House. The other point is that he and his fellow judges are the people on the spot, they live with the problem, they are serious-minded people who have grappled with it, they have talked about it and they have reached a unanimous decision that this is the better way. That, I think, is an important point.

But like what Dr Beng has said, it is important for us also to consider whether justice will be done. I agree with Mr Ling on this point. Is justice done? It is important that the rights of the accused person be protected. Again, we have to know that a clear benefit of this amendment is that trials will be heard earlier. And I do not think we should deprive or think lightly of this improvement for, indeed, we all know the axiom that justice delayed is justice denied. Hypothetically, surely, Mr Ling, if he were the accused, would not want to be incarcerated in prison for several years, only at the end of the day to be found not guilty. I think that is also a serious problem.

Therefore, it is not just a matter of more time or less time but the fact that incarceration of an innocent person, when we can prevent it, is also a weighty point. What about at the trial itself which has been done? The Minister has said that several steps have already been introduced to improve the delivery of justice. But having tried these other measures, I think, the CJ and his brother judges feel that this is a step which has to be taken despite some objections, a point which Dr Beng has raised. But on the whole, it is one that should be taken.

Some will indeed argue that two minds are better than one when dealing with capital offences. But, here, we must again look at things in context. Circumstances have, indeed, changed from 1960 to 1969. One, many cases are now heard before the courts, compared to 20 years ago. Some of them are very complex and require a lot of judicial time. Two, we now have a wider and larger pool of experienced local judges and Judicial Commissioners who are tuned to local circumstances. And, therefore, we can have a single judge trying a capital offence case, a local judge who knows local circumstances, that is important. If it is a criminal case, that is a point that we have today which we did not have in 1960. Therefore, we must see things in context. Things are evolving because circumstances have changed.

I have just one or two suggestions, if I may, to put forward. I feel that perhaps the proposal by the CJ to have two DPPs should be reconsidered. I will agree that we should have two defence counsels and I think that is good. It gives the assurance to the accused person that his case will be better prepared and arguments will be put forward on his behalf. But why pit two DPPs against him? Is that not putting another obstacle in his path? Sir, I hope this can be considered.

Now, again, seeing things in context, this is not indeed his last chance. Mr Ling says that this is his last chance. He dramatically puts up an argument on that point. We know that it is not his last chance because he can go on appeal to a Court of Appeal of three minds, three judges. And should there be a dissenting judgment at that stage, an appeal can be lodged also to the Privy Council. And mind you, even before the trial is heard, before it is set down for hearing, there is what we call a preliminary inquiry for the lower court to ascertain whether or not the trial should proceed. So this is also another safeguard. I think that is an important point.

The last point I want to make, Sir, is this. This amendment brings into focus the need for us to also consider the taking of evidence in our courts. With a single judge, the law requires him to take down evidence personally. But as a single judge, he also needs to observe the witness to follow the proceedings. Therefore, perhaps, the courts can be encouraged to look into means whereby the judge can be freed from having to take notes. Maybe we can look to the US as an example where they have gone on-line, they have got video, audio recordings, they have got stenographers who can instantly translate shorthand into longhand which the judge can refer to in court at the same time.

On these points, Sir, I support the Bill.

The Parliamentary Secretary to the Minister for Defence (Mr Matthias Yao Chih): Mr Speaker, Sir, may I ask the Minister, during the years when two judges sat to try capital offence cases, to what degree have the judgments been unanimous, to what degree have there been differing opinions and whether we can draw any conclusion from the history of such judgments?

Mr Cheo Chai Chen (Nee Soon Central): Mr Speaker, Sir, I wish to ask the Minister how many cases of capital offences we had last year. It is very important because capital offences involve a person's life. So if there are not many such cases last year, or the year before, the Minister should review the administration or manpower situation. Maybe, our courts are short of judges. In fact, the court must have at least three judges, not two, to hear capital offence cases. I think two is not enough. So maybe the Minister should reconsider this amendment. Sir, can I speak in Mandarin?

Mr Speaker: No. You have started your speech in English, you have to continue with it. Have you finished?

Mr Cheo Chai Chen: Yes.

Mr Heng Chiang Meng (Cheng San GRC): Mr Speaker, Sir, I am a layman in matters of law. According to Mr Ling on the procedures of the trial court and the Appeal Court, he said that facts are discussed in the trial court and when the case goes to appeal, only points of law, and not facts, are admitted. While this may be true in a general sense, I find it very difficult to believe that three appeal judges in the Court of Appeal will completely ignore a point of fact not put up at the trial stage, if the fact can prove that the person is innocent and not guilty. This means that, because of technicalities of the law, the three judges will be prepared to sentence a man to death, even though the fact might come up later on to show that this man is not guilty. Perhaps the Minister for Law and Home Affairs would like to enlighten us on this matter.

Mr Kenneth Chen Koon Lap (Hong Kah GRC): Mr Speaker, Sir, I am speaking as a layman. But I am very concerned about the Chief Justice's statement that there are lots of cases where the accused has been proved innocent but has to spend a great number of years in prison. I think this is totally unacceptable.

Mr Ling has asked for the figures. I have here the figures given by the Chief Justice in his speech. We have, at the moment, 17 cases which have been fixed for hearing.

Mr Ling How Doong: Sir, can I clarify?

Mr Speaker: Will you give way to Mr Ling, Mr Chen?

Mr Kenneth Chen Koon Lap: Yes.

Mr Ling How Doong: Mr Speaker, Sir, I did not ask for the cases pending trial. My question is: from 1969 until now, how many cases have been delayed and, after hearing, have been acquitted? I am not asking for how many cases pending. I am asking for statistics because the argument appears to be that innocent people have been imprisoned for a long time and then acquitted. You have got me all wrong.

Mr Speaker: You may continue, Mr Chen.

Mr Kenneth Chen Koon Lap: Mr Speaker, Sir, anyway, with the cases piling up, it will require 230 court days, or 466 judge days, and with 52 cases awaiting, it would require 1,400 judge days. With these figures in mind, it would be fair to conclude that there will inevitably be delay for cases to be heard and there will be cases where the accused have to wait for years before their cases are being heard and later found to be innocent. Therefore, I feel that we cannot carry on with this state of affairs. In fact, the Chief Justice was saying that for the cases pending, with the limited judicial resources which they are having now, they just cannot meet with the commitment. Therefore, the situation is not going to improve and it can be safely assumed that it would get worse. The figure for the accused who will be found innocent will increase, instead of decrease, as the years go by, if we do not do anything about it. This is my area of concern.

Mr Ling How Doong: Can I reply to Mr Ho before the Minister replies?

Mr Speaker: Mr Ling, you can only speak once to a question and you can only rise again if it is to clarify some parts of your speech which have been misunderstood. Can I ask you whether it is to clarify?

Mr Ling How Dong: To clarify what Mr Ho has said, Sir.

Mr Speaker: No, to clarify what you have said which might have been misunderstood.

Mr Ling How Doong: Yes.

Mr Speaker: All right, I will take your clarification. But only a clarification and not a speech.

Mr Ling How Doong: Mr Speaker, Sir, in my earlier submission I raised the point about a preliminary inquiry (PI). Mr Ho, in his speech, would appear to give the impression that a PI is a safeguard. Let me tell this House what a preliminary inquiry is all about.

Mr Speaker: Mr Ling, you are not to introduce any new material into this clarification.

Mr Ling How Doong: Sir, it is to clarify the misconception.

Mr Speaker: No, you clarify something which you have said which might have been misunderstood. You are not making a clarification.

Mr Ling How Doong: Mr Speaker, Sir, would you be prepared to make an exception for such an important Bill before the House?

Mr Speaker: Mr Ling, could you resume your seat? If it is a point which Mr Ho has made a mistake, the Minister will be the one to clarify. Please resume your seat.

Mr Ling How Doong: Mr Speaker, Sir, would you give me a chance to explain what a PI is all about? At least, the House will have the benefit of knowing what a PI is all about.

Mr Speaker: The Minister will give the reply to Mr Ho, not you.

Prof. Jayakumar: Mr Speaker, Sir, I do not think Mr Ling is right in giving the impression to something which has been lightly thought of or introduced in a cavalier manner. The Chief Justice and his brother judges have given very careful consideration to this before they made this recommendation to Government. And mind you, we have to consider that from the judges' point of view, it is more convenient and more comfortable for them to continue with the present arrangement because two judges share the burden of sentencing a person to death. If it is a single judge, a tremendous burden is on a single judge. So one could say that from the point of view of the judiciary, it is a comfortable arrangement. You cannot pinpoint and say that that judge was a person whose decision has resulted in the execution of a particular accused.

Therefore, the Chief Justice, in his speech at the opening of the Legal Year, pointed out that the judges and the Judicial Commissioners have worked through the system, lived closely with the system and are prepared to continue with the existing system but they realise the problems and are willing to shift from a shared responsibility to individual responsibility of judges to hear a case. This is a tremendous burden and I am sure they realise it. So let us take note of what it means when the judges themselves recommend this to us.

Secondly, Mr Ling has completely missed the point when he says, "produce statistics, how many cases in the past 10 years or so where there has been a long delay. After the long delay the person has been acquitted." The whole idea of this exercise, if he read the Chief Justice's remarks carefully and if he had listened to my speech, is "to avoid this ugly and unacceptable risk", the words which the Chief Justice used. It is not that there have been many cases where this kind of scandal has happened. Because if it has happened, then both the judiciary and the Ministry's law enforcement agencies should be made accountable. But the Chief Justice has proposed this because he has warned us that if we do not do this, this is a scenario we are headed for. That is the point which I want to emphasise.

If I may go on to some of the other points raised. Mr Ling again posed the question: can there be a miscarriage of justice? Can there be mistakes? Mr Ho Peng Kee has answered this. I think I will be dishonest to say that in the whole decision-making process in the court, whether it is death penalty or other cases, if the question is: could there be a mistake made by a judge?, I think it is possible. It is possible whether you have a one judge, two judges, three judges, five judges or a seven-man jury. It is possible.

Do we avoid the risk of making a mistake by doubling the number of judges, tripling, quadrupling the number of judges for a particular case? It does not follow. For what is important, in my view, is that in the ultimate analysis, first, the integrity of the system; second, whether we have a competent, skilled, judge and a person of integrity who will make a decision impartially on the basis of facts and law which are put to him in a competent and able way by competent and able lawyers. If we do not have these requirements, you can have incompetent judges who are biased or do not decide on a case on the facts before them, and you can have incompetent lawyers presenting these cases. In that kind of a situation, you can have two judges, four judges, but if they are not competent, the system breaks down. And I think we are very fortunate in Singapore that we have a judiciary which is skilled and able and cannot be faulted for their integrity.

Dr Arthur Beng asked whether the cost to the accused will increase. I think the Chief Justice has made it clear that if the accused has not made arrangements of his own, then the state will contribute to the additional counsel. If he does not have financial ability to pay for even both counsels, the court, under the procedures for assigned counsel, will provide. I am quite sure that the Chief Justice, when working out the system under the new scheme, will ensure that counsels who are assigned will be competent and able.

Mr Heng Chiang Meng raised a point arising from what Mr Ling said. Mr Ling says the appeal courts will not look at the facts. They will only look at the law. And I think Mr Heng Chiang Meng was right in asking: could it be possible that an appeal court of three judges will never ever look at the factual situation, even where there is good reason to do so? I think here, Mr Heng Chiang Meng, a layman, is right whereas Mr Ling, although legally trained, is wrong. It is true that appeal courts usually do not like to disturb findings of fact by the lower court. And there are good reasons for this. The good reasons are that the trial judge is a judge who would have seen first-hand the witnesses, the testimony they gave, the demeanour in which they gave the testimony, how they performed under cross-examination. He would have observed all this. Appeal court judges are not as best placed as a trial judge. For that reason, appellate courts tend not to disturb the findings of fact. But, and this is to answer Mr Heng Chiang Meng's question, it does not mean that appeal courts will never ever look into the facts and will never ever disturb findings of fact. Even the Chief Justice himself, sitting as an appellate judge, has reversed trial judge's findings of fact.

For the benefit of Mr Ling How Doong, I will give him the citation: Public Prosecutor vs Ho Ho Sin. The report is contained in 1991 3 Malayan Law Journal, page 416. And again indeed as recently as 1991, the Singapore Court of Criminal Appeal with the Chief Justice sitting as a presiding judge reversed a High Court's findings of facts in a capital offence. Citation: Chan Kin Choy vs Public Prosecutor, 1991, 1 Malayan Law Journal, page 260. Thus, it cannot be said that the Court of Criminal Appeal is powerless to reverse the High Court's findings of fact if the court is convinced that it is wrong. The two cases that I have cited demonstrate the ability and willingness of appellate courts to reverse a trial judge's findings of fact where they consider it appropriate in the circumstances to do so.

I think Mr Ho Peng Kee made a point in his speech by referring to two defence counsels, two prosecutors, and he mentioned the point as to whether this compensates for the reduction of one judge. I do not think that the Chief Justice actually meant that two prosecutors and two defence counsels would compensate for the reduction of one judge. I think what he meant was that the whole trial process, from the viewpoint of presenting as complete and thorough a case as possible, would be far more superior under his proposal than the present one.

What happens in a criminal trial? The judge ultimately decides. How does he decide and what does he decide? He decides on the facts and he decides on the law. On the facts, he has to decide whether the accused did or did not do certain things. And how does he decide on the facts? These facts are not plucked out of the air. These facts are presented to the judge in the form of evidence adduced by the prosecution and the defence. And not only the facts, the judge must also decide the law. How does he decide the law? The legal principles which must flow from a give set of proven facts. Here again, the defence counsel and the prosecution have to assist the court and the judge by bringing forth all the relevant legal principles, past precedents, interpretations to the provisons and urge him why he should adopt either this interpretation or the other interpretation. In both cases, on facts and on law, it is imperative that you have able, competent and skilled lawyers who will, by the totality of what they say, present as thorough a case to the judge, so that he can then make a decision on the facts and come to a well-considered decision.

I have noted what Mr Ho Peng Kee said. He said it is fairer to have just one prosecutor and two defence counsels. It is cricket, more sporting. But that is not the point. Because when you say "a fair trial", what do we mean? I think it must mean fair in the interest of justice. It cannot mean fair only from the viewpoint of the accused person. What about the interest of the family who has had their loved one murdered? What is the interest of the state in ensuring that there must be a deterrence to future murderers? As one well-known English law Lord, Lord Diplock, -- I think the name is familiar to Mr Ho Peng Kee -- said in 1980:

'The fairness of a trial is not all one-sided. It requires that those who are undoubtedly guilty should be convicted, as well as about those whose guilt there is any reasonable doubt should be acquitted.'

Therefore, while we must enable the accused to have as best and competent a defence as possible, in my view, there is no reason whatsoever to disadvantage the prosecution. And bear in mind what I just said that the whole trial process means both defence and prosecution bringing forth and presenting to the court as complete and thorough a ventilation of facts and law. Therefore, fairness in this context must mean fair and reasonable presentation of the case by both prosecution and defence to the court. I think this is especially important in our adversarial system.

I have taken note of what Mr Ho Peng Kee said of improved procedures including modern technology in the taking of notes. I am sure this will be taken note of by the judiciary.

I do not have, in reply to Mr Matthias Yao, any records of actual disagreements between two judges. I did make an inquiry and over the last 10 years, there were some cases, from murder reduced to manslaughter. But there is no indication in the records of these cases that this was due to a disagreement between two judges. It could have been for various other reasons.

Mr Ling How Doong rose -

Mr Speaker: Mr Ling, you have already made your speech.

Mr Ling How Doong: I want to reply to the points.

Mr Wong Kan Seng: You are not a Minister. How can you reply?

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