MUTUAL ASSISTANCE IN CRIMINAL MATTERS 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."

Sir, globalisation has produced immense benefits and rapid development to countries around the world. However, one side effect is that serious crimes are no longer confined within national boundaries. The reduction of trade restrictions, the increasing ease with which people and goods cross national borders, the global reach of telecommunications and financial systems, all of these present opportunities to criminals to extend their activities beyond national borders. The same forces that make possible today's rapid international trade can be exploited and are exploited by criminals to extend their criminal activities and influences across countries.

Without an effective network of international cooperation in the war against transnational crimes, criminal organisations will be able to exploit the differences and dislocations caused by national borders to their advantage and defy the individual efforts of national authorities to deal with them. This Bill before the House today signals Singapore's commitment to be part of the wider international network of cooperation in combating crime on a global scale.

This is not the first time that we have enacted legal provisions for international mutual assistance in criminal matters. In 1993, we enacted the Drug Trafficking (Confiscation of Benefits) Act with mechanisms for mutual assistance built in to help in the fight against international drug money-laundering. Last year, Members will recall we extended that legislation scope to cover laundering of the proceeds of other serious crimes and we renamed it the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act. With that extension, we widened the scope of the mutual assistance provisions in the Act to cover mutual assistance in the context of serious offences other than drug trafficking.

The Bill before us today builds on these previous efforts by consolidating the existing mutual assistance provisions and providing for more forms of assistance currently not available under our laws. It follows closely on the heels of the amendments last year, as part of the Government's progressive move towards building a wider framework for international legal assistance in the fight against crime. There is an increasing international trend towards enacting comprehensive mutual legal assistance legislation. We see this in the laws of the United Kingdom, Australia, New Zealand and Hong Kong, to name but a few. In fact, during the Plenary of the Financial Action Task Force last year, Singapore was encouraged to enact a dedicated mutual assistance law. It is in keeping with our role as a member of the Financial Action Task Force to act on this suggestion and to propose this Bill to this House.

This Bill not only facilitates the provision of legal assistance by Singapore to foreign authorities, it will also enhance the legal arsenal at the disposal of our law enforcement agencies in fighting transnational crime. For example, our law enforcement agencies have in the past faced problems in getting witnesses from other jurisdictions to come to Singapore to give evidence. This has hampered their investigations in some cases. The Bill before us will allow them to receive such assistance. It will help to facilitate the work of our enforcement agencies.

Overview of the Bill

Sir, let me now take the House through the main provisions of the Bill. The Bill has four parts. Part 2 deals with the requests for assistance made by Singapore to foreign countries. Part 3 deals with the requests for assistance to Singapore by foreign countries. Parts 1 and 4 deal with general issues which are common to both requests by Singapore to foreign countries and foreign countries to Singapore.

The Bill marks out the extent and forms of assistance which Singapore is prepared to give, the pre-conditions to be met before such assistance is given, and the conditions governing the rendering of such assistance. It also provides the legal framework for Singapore to request and receive assistance from other countries.

This Bill does not deal with extradition. All requests for extradition and assistance leading to extradition, will continue to be handled under the provisions of the Extradition Act. Clause 5 of the Bill makes that very clear. The Bill will also not affect the system of informal cooperation currently existing between our law enforcement agencies and other law enforcement agencies as well as international organisations, such as Interpol.

Assistance under the Bill may be obtained or provided for criminal investigations, criminal proceedings in court, and seizure or confiscation of proceeds or instrumentalities of crime. The Bill imposes no restrictions on which country Singapore may request assistance from. When it comes to the provision of assistance to foreign countries, the Bill distinguishes between assistance involving coercive measures, such as, for example, search warrants and those not involving coercive measures, for example, service of documents. Assistance which does not involve coercive measures may be provided to any country. On the other hand, assistance which involves coercive measures may only be provided to a country which has a mutual legal assistance treaty with Singapore. For these measures, the Bill merely lays down the framework for Singapore to enter into a mutual legal assistance treaty with other countries for the provision of assistance. Therefore, whether assistance can be provided will depend on the existence of a treaty. Just as extradition is not automatic but is conditional on the existence of an extradition treaty, it is also consistent with international practice to condition the use of a State's coercive powers on the existence of a mutual legal assistance treaty, sometimes referred to as MLAT in short. The requirement for a treaty will allow Singapore to set conditions for giving of assistance and provide safeguards against abuses by other countries.

Let me point out at this stage that there is one exception to this distinction between coercive and non-coercive measures. This relates to the provision on taking testimony in Singapore courts for use in foreign proceedings (clause 21). This is because this form of assistance is already currently available under section 43 of the Extradition Act, without the requirement for mutual legal assistance treaty and we do not wish to upset a practice which has been in place for many years.

Sir, the list of offences for which assistance may be obtained or provided for under the Bill is the same as the list currently applicable under the Corruption, Drug Trafficking and Other Serious Crimes (Confiscation of Benefits) Act (or CDSA for short).

The Bill provides that the Attorney-General will be the authority for requesting assistance from other countries and receiving requests for assistance from other countries.

Request by Singapore

As far as requests by Singapore are concerned, under the Bill, Singapore can ask for a number of different forms of assistance from a foreign country. The first form of assistance involves obtaining of evidence - that is, asking a foreign country to take evidence in that country, including obtaining the testimony of witnesses as well as seizing physical evidence, photographs, documents, and transmit them to Singapore for use in legal proceedings. The second form of assistance is in arranging for the voluntary attendance of persons in Singapore as witnesses in legal proceedings or to assist in criminal investigations. Clause 11 gives the assurance that a person who comes to Singapore under this provision will, during the period of his stay in Singapore for the purpose requested, be immune from prosecution or civil suit for anything which he has done before leaving the foreign country to come to Singapore. The third form of assistance is to request a foreign country to enforce a Singapore confiscation order. Fourthly, a request could be made to a foreign country to assist in locating or identifying a person who could be of assistance in criminal investigations or proceedings or who could be affected by such investigations or proceedings. Finally, a request can be made to a foreign country for service of Singapore court documents in that country.

However, the existence of these provisions in our law does not mean that any foreign country will be automatically obliged to accede to our requests. Whether the foreign country will accede to our request will depend on the provisions of that country's laws. Just as we require the existence of a mutual legal assistance treaty before providing some forms of this assistance, the country to which we make a request may similarly impose a condition of rendering assistance upon the existence of prior arrangements or understanding with Singapore concerning mutual legal assistance. Essentially, Sir, what these provisions do is to establish that the Attorney-General has the legal authority to make such requests on behalf of Singapore.

Request to Singapore

Turning to requests which may be made by foreign countries to Singapore, the forms of assistance which Singapore can request are also the forms of assistance which Singapore can provide under the Bill. As I explained earlier, some of these provisions of giving assistance by Singapore, like those concerning search warrants and production orders, are only enabling provisions. Whether assistance can be invoked in any particular case will depend on whether there is a mutual legal assistance treaty between Singapore and the requesting country.

Of the various forms of assistance which Singapore can provide, assistance concerning production orders, search warrants and enforcement of foreign confiscation orders are already provided for in the CDSA. As I mentioned just now, these mutual assistance provisions in the CDSA will be repealed and moved into this Bill. Assistance in the taking of evidence is also not new, as it is now provided for under section 43 of the Extradition Act. Similarly, section 43 will be repealed and moved into the Bill as clause 21. This consolidation will now provide a convenient one-stop source of reference of the provisions for mutual assistance in criminal matters in our law.

Safeguards built into the Bill

Let me turn to the safeguards which have been built into the Bill. While we are willing to provide assistance to foreign authorities in appropriate circumstances, obviously there must be safeguards in place to prevent abuses of our willingness to assist and to prevent unnecessary intrusion by foreign authorities into the privacy of our businesses and individuals. Many safeguards are therefore built into the Bill. I shall briefly explain the main safeguards.

The first safeguard of course is the limited list of offences for which assistance is available. As I mentioned before, this list is tied to the list of offences under the CDSA. Limiting the list of offences for which assistance can be provided ensures that assistance is given only for the offences which are considered to be sufficiently serious in nature.

The second safeguard is the requirement for mutual legal assistance treaty for certain forms of assistance, which I have already mentioned, and can be described as coercive in nature. A related safeguard is that a request will be declined if it does not comply with the conditions laid down in the applicable treaty.

To ensure that requests are not made unnecessarily, it is provided that the Attorney-General will not honour a request if the thing requested is not of sufficient importance to the investigation of criminal proceedings, or could reasonably be obtained by other means.

To avoid information or evidence obtained pursuant to a request from being used subsequently for other purposes, it is provided that a request will be declined if the requesting state fails to give an undertaking that the thing requested will not be used for purposes other than those for which the request was made.

Finally, there is a general power to decline a request if the provision of assistance could prejudice a local investigation or criminal proceeding or would prejudice the safety of any person or if it is not in the public interest to provide the assistance.

Miscellaneous amendment to CDSA

Before I end, I should mention that the Bill also seeks to insert a new section 39A into the CDSA. This will empower Suspicious Transactions Reporting Officers in the Commercial Affairs Department to share information with foreign financial intelligence units. Safeguards have been built into section 39A such that the sharing of information is conditional on there being an arrangement between the financial intelligence units of Singapore and the foreign country. Conclusion

Sir, in conclusion, let me say that this Bill will enhance the legal arsenal at the disposal of law enforcement agencies. It will also enable Singapore to play its part in the wider international efforts to combat transnational crimes.

Sir, I beg to move.

Question proposed.

Assoc. Prof. Chin Tet Yung (Sembawang): Sir, I rise to support the Bill. In preface to that, I am sure Members of this House will remember that the whole world was waiting with bated breath on the eve of the New Year, 31st December 1999, when we thought that if the millennium bug did not get us, the other viruses will. In the end, happily, it was a non-event, though many, especially those in the computer departments must have thought that there were better ways to spend the millennium eve than to sit in one's office, watching computer screens.

Sir, this example shows how we entered this new millennium, this new century, feeling very vulnerable. Crime knows no borders and criminals these days are as much into globalisation as any self-respecting industry. It is the same for those who are engaged in other crimes and who use computers, for example, to facilitate their nefarious affairs, such as money laundering and the like.

It is therefore imperative that we have in place legislation that would allow our prosecutors to cooperate with their counterparts in other countries. Indeed, such legislation is not just timely, but overdue. Be that as it may, we observe the rule of law and once this Bill is passed, we will have in place the legislation needed for us to seek assistance from others in a variety of ways - to collect evidence, to look for witnesses, to enforce confiscation orders and so on.

Sir, I have several issues that I hope the Minister can clarify in this debate. The first has to do with the effect of this Bill on the process of extradition. According to clause 5, the Bill does not authorise extradition, and any arrest or detention associated with it. At the same time, Part III of the Bill, which the Minister has referred to, deals with requests made by other countries to Singapore for assistance. This may conceivably be used to request the attendance of a person from Singapore and if that person were to go, he may find himself subjected to other charges that neither the Attorney-General nor he was informed about. I should like to ask the Minister to confirm to the House that the safeguards provided in this Bill would not be used as a back door to extradition, and that adequate safeguards are indeed in place to prevent this. Would he also confirm that extradition remains the main process through which alleged criminals are extradited to other countries?

The second issue I have concerns the use of evidence, once obtained from abroad. Clause 8(3) allows evidence from abroad to be admitted, subject to the Evidence Act and the Criminal Procedure Code. Such evidence may include, according to the clause, things or photos or copies of things. However, unlike statements contained in things, there is no provision on how to authenticate and evaluate this evidence. If a statement is involved, then the Court is under a duty to see whether it is possible to challenge the statement by questioning the maker. It is also to take into account whether legal representation was available to the maker at the time the statement was made. One example of the problem could be in relation to the case of things or objects. It is usually required in Singapore that the person adducing any thing or object should show the "chain of evidence" from the time the object was seized to the time it was produced in Court. Thus, for example, if a packet of heroin was seized, say, in Jakarta, and if that packet were to be used in evidence here in Singapore, there should be a record from the time it was seized to the time it was produced in Court to avoid the danger of fabrication or misuse of evidence. I hope that the Minister can confirm that the Attorney-General and other prosecuting authorities would take the utmost care in using evidence obtained from abroad in Singapore courts. It must satisfy the rules of production in Singapore courts, and that this clause does not, without more, justify the admission of evidence without proper authentication.

My third issue relates to the immunities and privileges of a person whose presence is requested through the Bill. It is whether the immunities and privileges go too far in certain respects, and not far enough in others. Under clause 11(a), the person whose presence is required shall not "be detained, prosecuted or punished in Singapore for any offence that is alleged to have been committed, or that was committed, before the person's departure from the foreign country.". So a person who has committed a crime in Singapore flees to another country, and then requested to come back to give evidence, say, against his accomplice, would not be prosecuted while he is returning under this provision. Could the Ministry clarify that this is indeed the position?

I now refer to clause 11(2) which withdraws the protection under subclause (1) if the person has left Singapore or the person has the opportunity to leave but remained in Singapore for a purpose unrelated to the purpose for which his presence was required. Thus, if after the case, the person were to stay back a day to catch a later flight, and at the same time, do a bit of shopping, it seems that technically, it would be regarded as having had the opportunity to leave, but has remained in Singapore for another purpose, and therefore, the immunities no longer apply. I bring out this somewhat casual example to ask whether in such instances, we intend to stick to the letter of the law, or its spirit. Could we expect other countries to be also flexible in their approach, and not apply such technicalities when it comes to Singapore persons who voluntarily go to the country requesting their presence?

Next, I refer to the wide authority of the Attorney-General to request the presence of a person in Singapore from a foreign country. Clause 9 states that the Attorney-General may make a request to secure a person's attendance if "there are reasonable grounds to believe that a person in a foreign country is capable of giving evidence or assistance relevant to a criminal matter involving a Singapore offence." Does this broad authority extend to helping defence counsel, for example, in procuring alibi witnesses? Or is it the case that the procedures under this Bill would only be used to aid in prosecutions?

Finally, Sir, I refer to the wide discretion given to the Attorney-General to delegate his powers under the Bill to any public officer under clause 43. I wonder whether in relation to such serious matters, the discretion should be so wide. Surely, it would have been more appropriate to limit the delegable authority to someone who is in a senior position in the Legal Service.

I wish to reiterate that I do support the Bill, and that it marks a significant step in the fight against international crime. I hope, however, that the Minister can assure the Members of this House that such powers, as are conferred by the Bill, would be properly used, and that care will always be taken when the life, liberty or property of an individual, whether foreign or local, is at stake.

Mr Thomas Thomas (Nominated Member): Sir, I thank you for allowing me to seek clarifications from the Minister.

Firstly, I support the Bill and since there is globalisation, crime has also globalised, I think this Bill is very useful. However, I just want to ask whether this Bill will be used in the case of trafficking in people, especially women and children. There is an increase in these crimes worldwide and will this Bill address that problem. And secondly, will this Bill be used even in cases where there are unscrupulous employment agents who, we know that happens in Singapore, also bring in foreign workers illegally on promises of employment here? Will these be classified as serious crimes and will this Bill be applicable?

Prof. Jayakumar: Sir, I thank Prof. Chin Tet Yung and Mr Thomas Thomas for their support of the Bill. Let me take the questions which they pose. First, I will deal with the questions raised by Prof. Chin Tet Yung.

Prof. Chin asked about extradition and whether this could be used as a back door route of extradition. He is right in pointing out that this Bill does not deal with extradition, as I have stressed in my speech. All requests for extradition and assistance leading to extradition would continue to be handled under the provisions of the Extradition Act. This is made clear in clause 5. In fact, let me point out that in respect of requesting the assistance of people to come from foreign countries and foreign countries regarding assistance from Singaporeans to go there to give evidence, the Bill makes it clear that it is dependent on their consent. So, this Bill therefore does not deal with compulsory handing over of witness or person who can give assistance. And it also has not got anything to do with charging a person for any offence in this country or the other country with respect to mutual assistance.

Prof. Chin asked if we could compel the attendance of a person as a way of obtaining extradition by the back door. I do not think there is any scope for achieving extradition by the back door. Under clause 26, it makes it clear that the Attorney-General would not arrange for the attendance of a person overseas unless the foreign authority gives adequate undertakings to the Attorney-General. One of these undertakings, and it is spelt out in clause 26(3)(a)(i), is that that person will not be charged for any offence which he may have committed before he leaves Singapore for a foreign country. This will ensure that a person who travels overseas and has agreed to travel overseas under clause 26 would not be charged for any pervious offence while he is in a foreign country. That is an important safeguard.

Prof. Chin asked about immunity. If you look at clause 11, it is clear that for the whole time that a person is here in Singapore, pursuant to a request under clause 9, he cannot be charged for any offence he had committed before he left the foreign country to come to Singapore and I confirm that that is the intention. Let me give an example so that Members will understand the purport of such a safeguard. A person may have committed an offence in Singapore some time ago and may be living in a foreign country. If we need him to come to Singapore to help with the investigation of another crime, or to give evidence in a trial concerning some other accused, naturally, he will be reluctant to do so, for fear that he would be prosecuted for his previous offence once he comes to Singapore. This may not serve the interest of justice as this witness' evidence could be valuable and another criminal could walk free if we fail to get his assistance. When the Bill becomes law, the witness will be willing to come to Singapore as clause 11 will give him immunity if he comes at the request of the Attorney-General, but the immunity is only temporary. Once a witness leaves Singapore, the immunity ceases to apply and we could prosecute him if he comes back again on his own volition. Of course, if there is an extradition arrangement in place, we can also ask for his extradition at a later time. The key is that during the period, he is here for the purpose of which assistance was sought and he had agreed to come.

I should also clarify that the immunity only applies to offences committed by the person before he begins his journey to Singapore. If he commits a crime when he is in Singapore during that period to give assistance, it is a different story and the immunity will not apply.

Prof. Chin also asked a related point, about the point of time when the immunity is deemed withdrawn. He gave examples. He is supposed to leave but he goes shopping and so on. Let me say that all these provisions on mutual assistance will work only if the countries concerned exercise them in good faith and some common sense. Because if we apply these provisions in a very unrealistic and unreasonable manner, then, of course, since these matters depend on reciprocity, we can expect that other countries also not to act in good faith. So, international assistance and cooperation in legal and law enforcement matters is predicated upon countries working in good faith. Otherwise, international cooperation will break down. So I guess if it is one day's shopping, our law enforcement authorities are not going to unreasonably pounce on him for his previous offence.

Prof. Chin also asked a point concerning the reliability of evidence received from overseas, and the example he gave about scrutinising chain of evidence, packet of heroin seized in another country and so on. I think it goes without saying that all evidence received under clause 8 will have to be assessed by our court for relevance, admissibility, reliability and weight. All evidence received from overseas, therefore, will have to be subject to the same rules of evidence as evidence obtained locally, a point which Prof. Chin was concerned about. It is not the intention that evidence received from overseas authorities will be scrutinised any less critically than evidence obtained locally.

Let me add that a statement can be used against a witness only if it is inconsistent with the testimony of the witness. If the statement is inconsistent with the testimony of the witness and the intention is not to use the statement against the witness, then the Bill neither authorises nor prohibits its use.

He spoke about the ambit of the Attorney-General's discretion to make requests to other countries, and he asked whether this would include accommodating requests by defence counsel in various cases. He is right that the Bill provides that only the Attorney-General can make a request to a foreign country for assistance. Let me say that the primary intention of this Bill is to facilitate criminal investigations and the prosecution of offenders. In fact, this is so for legislation enacted by other countries also. That is the primary intention. Having said that, let me say that there is, of course, nothing in the Bill to prevent the Attorney-General from making a request to obtain evidence in the aid of the defence in a particular case. In answer to Prof. Chin's question, let me say that I am sure the Attorney-General will give due consideration to any request from defence counsel to invoke the Attorney-General's discretion to request assistance from a foreign country. But I do not wish to give the impression that defence counsel should be freely making such requests, or that the Attorney-General will frequently agree to all these requests to approach foreign countries.

Why do I say that? It is because I foresee that even requests in aid of the prosecution will be made very sparingly, because in mutual legal assistance arrangement, such requests are not routinely made. They are made in very serious cases, because a lot of effort on the part of the law enforcement authorities and quite a lot of resources have to be spent to accommodate the request of a foreign country. So, each request which Singapore makes to a foreign country does impose a strain on the resources of a foreign country and vice versa. Just as we have given the Attorney-General the right to decline to deal with trivial, unsubstantiated or unnecessary requests from foreign countries, I should think that we ourselves would not want to make such a request in a routine manner. Otherwise, we may lose credibility and goodwill internationally, and other countries may not deal with our requests promptly or seriously.

Prof. Chin also dealt with power of delegation. It is obvious that there has to be a power of delegation. And if we look at the destination table of the different models from which we have borrowed some of these provisions, the Australian legislation has power of delegation. Let me say, in answer to his concern, that delegation will be made only to officers of sufficient seniority to make appropriate decisions. As to why it is not confined only to senior members of the legal service, as he knows, in our system, we have the legal service, the police, the CID, maybe CPIB and others. Many law enforcement agencies are involved and I think we should give the discretion to the Attorney-General in a particular case to harness the resources of the appropriate department, other than the legal service itself.

Finally, in answer to Prof. Chin's request for an assurance, I do wish to assure him that the powers under this Bill, of course, will be properly used, and that is our intention to do so. Our main objective of this Bill is to facilitate obtaining of evidence and testimony from overseas with the objective of assisting the efficiency of our own law enforcement and criminal investigations and prosecution. In doing so, there is no intention whatsoever of lowering standards or to allow unreliable evidence to be used. Just as we are interested in securing the conviction of a criminal, it is equally important that we avoid wrongful conviction of innocent people.

I would also like to thank Mr Thomas for his support of the Bill. He had two questions. First, whether this Bill would enable us to request mutual assistance from other countries in tackling offences on trafficking in women and children. Upon perusing the list of offences namely, the list in the CDSA, I note some of these offences are clearly listed, such as offences relating to prostitution, trafficking in women and girls, importation of women or girls by false pretences, causing and encouraging prostitution, intercourse with indecent assaults. They are covered.

His other point is whether the Bill also enables mutual assistance in prosecuting unscrupulous foreign agents with respect to foreign illegal workers. My quick perusal of the list does not show that this specific offence is covered. Why? I think the answer is that our Penal Code and our other legislation have hundreds of offences. Usually, when we devise a list of offences for the purposes of extradition, confiscation orders or mutual assistance, we will have to narrow them down to offences which are very likely to be considered as serious offences in other countries. This does not mean that we view the offence of exploitation of workers by foreign employment agencies to be any less serious, but we have to be selective. I think not all other countries view the problem with the same gravity as Singapore. So they may not list it as an extraditable offence or as an offence in their mutual legal assistance. Of course, these matters are not cast in stone. Situations may vary. More and more countries may face the same problem and it could well be that this could be a candidate for mutual legal assistance at a later date.

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.