04 Nov 2020

In Response to Parliamentary Motion on the Criminal Justice System - Speech by Mr K Shanmugam, Minister for Home Affairs and Minister for Law

1. Let me start by trying to deal with some of the points that have been raised.

 

2. I thank Ms Lim and Ms He for recognising that the criminal justice system taken in totality works well. They're not saying the system is broken, or ineffective, and that Singapore is a safe place to raise children, and the justice system has been instrumental in achieving that, and that our justice system enjoys good reputation. And I think that various indices were cited. 

 

3. So let me try and deal with specific points but let me start off by saying the speeches I've heard particularly from the Workers’ Party. I'll come back to Mr Leong Mun Wai.

 

4. I would say with the Workers’ Party, the points made – we are on the same page, in many ways we are pushing at an open door. It is not that any of these principles are new, or in some way, not thought of or that we are opposed to them. I think in large measure, from the speeches that I heard, you are setting out positions of principle, which we have no problems with, but sitting on the front bench here, we also have to decide how to implement it, and how to pay for it. And so therein comes some of the implementation issues. If I may say, actually the very first point I will take illustrates that very well. Legally, I think, Ms Lim, Ms He Ting Ru and maybe Mr Dennis Tan talked about the importance of legal aid, particularly for the poor.

 

5. We can't be more agreed on this. Of course we want legal aid for the poor. We do have legal aid for the poor. As I said, CLAS covers 25 per cent of resident households or is intended to.

 

6. I explained why I don't want to make legal aid mandatory. I explained to you by reference to the UK example that the moment you make it mandatory, then what happens? People game the system too. And people game the system in this way. They will not be able to find lawyers who can do it for the fee that the state is prepared to pay or an extraordinarily exorbitant fee is required on lawyers who do not come forward. 

 

7. And because you can't find a lawyer to handle the case, therefore the case gets postponed. I give you real-life examples from a first-class jurisdiction, UK, so this is not a figment of anyone's imagination. So you have got to deal with that. I think, rather than going the same paths that others have gone and gotten into minefields, we should try and make it work. I will also share with you -, the experience of Australia and New Zealand. New South Wales, Australia, offers a fully government-funded public defender scheme. Two third of its are cases outsourced to private lawyers. Government expenditure on criminal legal aid has seen a 50 per cent increase from 2015 to 2019. Every time I show these figures my finance minister gives me a look. When enhanced CLAS in 2014, we were not in a very difficult budgetary position. But we were all projecting for a time when we would be in a difficult budgetary position. I didn't want to get into a situation where we will just be required to write bigger and bigger checks, without taking into account public interest. 

 

8. The reason why any Member here with a child who is ten years old, would dare to let their child take public transport, is because of our law and order system. That is a very precious privilege. It is a privilege. Every lady in this room will be able to take public transport at any time of the day and night. That is a fundamental human right. You will not be able to exercise that in any comparable city anywhere in the world.

 

9. There is a reason for all of that. That's because cases get dealt with properly, crime is low. We have kept crime low at a relatively low cost to the taxpayer. But I accept we must also help the poor when it comes to legal aid for criminal cases. 

 

10. But let me tell you about the Australian example. The case of Lloyd Raynay. He was an experienced lawyer accused of murdering his wife received legal aid in 2013. The cost to take taxpayers of his defense was around $2.3 million. Do you believe that that person should get legal aid at that cost in Singapore? I don't think you do. We should move away from absolutist positions to say "How can we make it work?", because we are both on the same side on this argument. 

 

11. Paul Cohrs was accused of murdering his mother and brother in 2018, close to $1.5 million in assets. He was offered legal aid, because his assets were frozen. Court cases get delayed - I'm talking about Australia now - because lawyers refused to take on legal aid cases. Legal aid rates were considered inadequate; cases being adjourned, victims and witnesses having to endure a long wait for justice and preparation by prosecutors and police wasted. In 2016 court cases against alleged murderers of underworld figures, Pasquale Barbaro and Mehmet Yilmaz, put off for more than one year because legal aid rates were inadequate for suitable lawyers to take on the lengthy and complex case. The Government introduced reforms in 2020 to ensure more sustainable legal aid budgets, including changes in fee structures. They introduced fixed lump sum payments for less serious criminal matters, and guess what, the legal industry opposed it.

 

12. New Zealand - fully government-funded Public Defender Scheme. The total costs rising by 62 per cent from 101 million in 2006 -2007 to 164 million in 2018- 2019. So there was an independent review of the system in 2009, led by a senior public civil servant concluded the system was open to abuse, including lawyers who game the system. I'm not suggesting that lawyers will necessarily game the system, but you have these experiences elsewhere and you got to be careful about it.

 

13. They delayed plea or change pleas partway through the process, maximised legal aid payments, lawyers who demanded or accepted top up payments from clients.  To curb the bill, they expanded the Public Defender Scheme but that was also opposed by the Bar.

 

14. We thankfully have a relationship with the Bar which is more constructive. They do pro bono through CLAS. I have said that we are now considering how we can set up a Public Defender's Office, which will not be, which would be sustainable. So, in principle, there is no issue. The question is: how do you implement it?

 

15. Second, I think there was a question of bail. I think Ms Lim wondered if the Bail Court was comatose or still in existence. It is functioning, live and kicking. It's in the State Courts, Court 4A undertakes a role of Bail Court; it handles the grant of, or review of bail. The court aims to ensure that the bail reviews are dealt with expeditiously, minimise the time spent by accused persons and remand and balance against the need to ensure that the accused persons attend court or are available when investigations are required.

 

16. Since 2018, we are increasing the number of persons in remand who are being released on reduced bail, with e-tagging, because we can use technology. So between January and July, more than 180 accused persons have been released on reduced bail with etagging. In 2018, I think some members will recall that the Criminal Procedure Code (CPC) was amended to specifically provide for e-tagging. The Police are generally prepared to consider allowing personal bond in more cases. Again on the bail issue, I don't think we are at divergence here.

 

17. Three, on people who can't afford to pay fines. I think the situation that Ms Lim highlighted was that some people run up a series of regulatory offences, and then they find themselves unable to pay, and then have to turn up to Court for these matters.

 

18. This is where it is a tough issue when it comes to this, because in principle, you have the laws, you need to enforce them. I think everybody agrees that you need to enforce them. If you have laws and you have fines that can be imposed, but if people can break the rules - it can be as simple as parking, if people can park without having to pay the fines, and fines will not be collected, then you know the system will slowly break down. So, we can't have that right? So, we have to impose the fines.

 

19. There are a group of people we all feel sympathetic towards, because they cannot pay. And the fact that they cannot pay the fines then leads them on to other situations which sort of snowball, and we really don't want that. I think that is a situation where other kinds of safety nets will have to come and try and help them. This is where MSF comes in, the local MP comes in, situations like that. But where the agencies come across this, some agencies may be able to handle it. But you know, generally, the agencies are not best placed to go and make distinctions between people – “Okay, you can pay the fine. You can’t pay the fine”. I think we will very soon have a system that's dysfunctional. I think that sort of intervention has got to be a intervention from outside of the regulatory agency. But in principle, we agree that there must be ways to try and find these people help.

 

20. Ms Lim also talked about AGC sometimes - I am sure this is based on what the Criminal Bar has said, because they've said this to me too, that officers sometimes prefer the most serious charge. I would put it this way. I think in Parliament when we debate like this, it is going to be general statements. If you say they shouldn't put the most serious charges, of course I agree.  We also agree that neither Parliament nor the Ministry of Law should be directing agency on what charges are appropriate. I think the starting point is what the Attorney-General has said in the opening of legal year, which is that the DPPs ought to be told, and have been told, that they are ministers of justice. They need to take an overview on this, and they need to approach this with fairness. And the Attorney-General and the Deputy Attorney-General have regular discussions. The Criminal Bar, these are issues they can deal with.

 

21. Recording of statements, again, I think the starting point is the same. We must get accurate statements. It must be fair to the person being interviewed. It must be something that the person who is interviewed can understand. I don't think it's going to be possible, you know, the Police are not going to be able to do it, record it in the language the witness speaks. But fairness must be there. We need to have the right interpreter and we must emphasise to the investigation officers that, look, it is not a question of getting down and putting it in the way that you want. It has to be what the person is saying, and this is a constant endeavour. I'm sure Ms Lim has, I'm sure others have, I have, we have all come across situations where lawyers tell us, “Well, the statement has been taken in a way that is not quite accurate”. They say that. I think you’ve got to discount some of it, because it is seen from a defense perspective, but it has happened too. This is something, as I said this, the golden standard would be if we can have video recording. But in my Ministerial Statement I explained, I explained the difficulties that we are having. It is not that we don't want to do it. Actually, doing it would help the Police, it is protective of the Police. But we can't do it, we can't expand it, because of the specific resource constraints that I spoke about.

 

22. There was a question on level of legal training of investigation officers. I think the Police officers who take on the investigation officer role do take some legal modules on investigative powers, drafting on charges, statement of facts. They understand the Evidence Act, burden of proof, presumptions, general law, general training for trial preparation. None of that is going to make them a lawyer and I think, again, the real answer is, what one of the Members asked me earlier - how quickly can we put the AGC and Police officers together early in the investigations, so that there is that legal guidance.

 

23. It is a serious resource issue in terms of the size of the AGC, and the small size of the Police investigation officers is small. To try and put them together to deal with these thousands of cases is not going to be easy.

 

24. Ms Lim said something which I heartily agree with, that the specific Police investigation officer in Ms Liyani’s case does not become a scapegoat. I'll start out by saying that we don't scapegoat people. But when I come to Parliament, I cannot shy away from saying what has happened. In my original statement I actually said, I am personally very sympathetic to the investigation officer. The Police were very uncomfortable with that because they take the disciplinary inquiry seriously and their view was that if the Minister says that, then it creates difficulties for them. But I am very sympathetic to the investigation officer, because you know, we are all looking at this with hindsight and with a huge amount of like a microscope, day by day. So, I do say poor chap, but rules are rules. And he was there, he didn't do it for five weeks. There are certain consequences. He is in an unfortunate situation, but I entirely agree.

 

25. Ms Lim also asked about installment payments or fines. I said it in the House here. I think we should try, when people have difficulties in making payments, to allow them to pay in installments. The difficulty again is to distinguish between who can afford and who cannot afford. We don't want to go down the route of setting up another mechanism and have more resources to go and check that. But subject to that, I have given directions earlier this year to the Police to consider in which areas we can go, for possibility of installment payments on fines. 

 

26. There were some points about young people, what sort of assistance they get when the Police interview them, amongst others. Actually, for those who haven't been following closely our criminal justice system and our system of imprisonment or incarceration, there has been a sea change in approach.

 

27. Today for example, Prisons tags themselves as Captains of Lives. They are no longer prison wardens. When people come in, the statistics show that there is a high likelihood of recidivism when they go out. They're going to come back again. So, our task is to actually be with them and make sure that, as much as possible, that they don't come back. So, we do a lot of intervention when they are in there. We actually want to go early upstream. Don't even let them become prisoners, don't even let them get into trouble. What can we do upstream? We want to look, as much as possible, for people who infringe or who have committed some offence. We want to see how we can move them away from the penal system to a more guidance programme for rehabilitation. 

 

28. So, the primary focus, if I can use one word to describe our system today, it is to focus on rehabilitation. Which is why very significant changes on drug users, first and second time drug users, were put through legislation and Parliament agreed with it.

 

29. For young people, we have a diversionary program for those who commit minor offences. In the past four years, four to 500 Guidance Programme cases a year. Completion rate has been about 80 to 90 per cent. We also have a Guidance Programme for young offenders who commit less serious sexual offences, like, you know, possession of obscene films and so on. We give them an Adolescence Sexuality Treatment. Streetwise Programme is a voluntary program for wayward young people. Then, we have an Enhanced Streetwise Programme. For those involved in minor gang related offences, they are sent to these programs. 

 

30. So our approach today is first, we try and prevent them from getting into prison. Second, if they commit some offence, as far as possible, we put them in different tracks. We do psychological assessment. Even if they have to serve time, then we see whether they have to serve the full time or whether they can be put through different programs, and then put in halfway houses, to the extent possible. Of course, depending on the nature of the offence. So that's been the approach, and if members are interested, we can give them a specific, more in-depth briefing. But there has been a very significant change in approach here. 

 

31. Ms Lim talked about victims in specific cases, a couple of cases. I think, Ms Lim and Ms He Ting Ru would accept that I don't know the facts. I don't know why, specifically the matter was not proceeded with. All I know from what has been said in Parliament is that the Police and AGC or AGC advised that it cannot be proceeded with. Beyond that, I don't know anything else and I can't comment on it. There are always two sides to every story, and we will have to ask AGC why it didn't proceed.

 

32. Ms He said that defense lawyers face unequal access to witnesses and evidence. Again, in principle, I agree there should be fair access. What is fair, how do you detail what is fair - there might be a difference of views. It wasn't quite clear to me what exactly she said, but I'm setting out the matter of principle here. On access to counsel, I've dealt with earlier. Ms He Ting Ru also talked about compensation for miscarriage of justice. I think, you know, in principle, if it's a vexatious case, if it should never have been brought, compensation ought to be paid. But on a regular basis, if every case, the State loses, you've got to pay compensation, then I think I would take a different approach and take a different view. I do think that would create a chilling effect on prosecution, but I don't think that's what Ms He was suggesting. 

 

33. Mr Dennis Tan expressed his concern about the young and the poor. I say for the record, we are all concerned, and that Mr Dennis Tan is not the only one is concerned. I think his concern is legitimate, but we are all concerned.

 

34. He also spoke about judicial training and he spoke about rotation between the different parts of the legal service. I have given a very full answer and I said that these matters are dealt with by various boards, headed by the Chief Justice. He decides, together with his board, and there is I described the personnel boards for judges and personnel boards for legal service officers.

 

35. Mr Tan also spoke about qualifications of judicial officers. These are matters for legal service commission they will take into account. I told you about the judicial personnel board, they will deal with it and choose. I think he got some of his facts wrong. The point he made about one year for magistrates and three years for district judges. That is only possible when the Chief Justice is of the opinion that the person is suitable. Otherwise the normal is three years for magistrates and seven years for this district judges. In the state courts today, we have 55 judicial officers who hear criminal cases. All our qualified persons for at least seven years, but I stand corrected. These are the figures that have been given to me. If it is inaccurate in any way, I will let Mr Dennis Tan know. The training of judicial officers, again, I agree with Mr Tan. It is already being done as he will probably know. Singapore Judicial College, and Mr Tan agrees that this is a good development. 

 

36. Mr Pritam Singh talks about disclosure. Setting up statutory framework on what needs to be disclosed. I think specific on Kadar, Mr Singh would recall that I told this House, that it is good in principle case, and should be followed. Mr Singh doesn't recall but that is what I said. So, the Government is absolutely aligned with Mr Singh on this point. Looking at the setting out the disclosure requirements in statute. I am happy to tell him that knowing that he is going to raise it today, we have been discussing it since early this year. Internally, and it started with Ministry of Home Affairs. It is being discussed we want to look at. I think it is unsatisfactory that it's left as a common law principle. So we are going to put it out in statute - what is appropriate what is fair, how do you framework it, which are the cases and principles you take in. It is being discussed with various stakeholders. We haven't discussed with the Bar yet. I think we have discussed with the Supreme Court -  I cannot remember specifically. But it's been something that we have been discussing since early this year. The small event of COVID has put many of these things out of kilter. So a little bit more time is being taken.

 

37. Mr. Singh also talked about how do counsel discuss relevance and non-relevance. I think all I can say to him is that AGC officers have an overarching duty as ministers of justice. Mr Singh and I cannot be telling them what to disclose and what not to disclose. But the principles are clear. Again, as I have said we will put it out in statutory form. So he's pushing at an open door on this

 

38. Ms Lim talked about seeking more means for seeking compensation. I think she knows 2010 we amended the CPC to require courts to actively consider. This is because we felt that while we had given the courts the power to order compensation, we didn't see enough cases where compensation was being awarded. So I actually decided that we had to go further. So in 2018, the law was further amended. Now, the courts are required to give reasons if compensation is not awarded when it has a power to do so. So, that requires an active consideration. Victims are there in a criminal case rather than requiring the victim to start the proceedings, decide that and there how much money it should be paid. If for some reason you think that no money ought to be paid, you set out your reasons. So victims will be able to participate in the process by making submissions. It is really meant for simpler cases. The criminal courts are not equipped to deal with complex hearings, which are dealt with by civil courts.

 

39. We also should be careful about dragging out proceedings, because there isn't there is a knock-on effect on the courts ability to deal with other cases. The courts have also been empowered to order compensation to the dependents of a person whose death was caused by an offence, for example for bereavement and funeral expenses. 

 

40. So those are the points I wanted to cover there are other points which I'm sure some other colleagues will cover. 

 

41. But coming back to Mr Leong on the Committee of Inquiry. I think he will recall the earlier exchange. He has agreed that there was no issue he could identify, and there was no need for a Committee of Inquiry, or a Commission for Inquiry. But now he has reversed himself and says, I suppose the an hour or so in between has helped him to recall why he wanted it in the first place. 

 

42. Mr Leong, let me put it this way. You are quite wrong in saying this is an internal review by agencies. Let me explain. First, it has gone through a very public process with detailed cross examination, and examination and a minute forensic examination of all the issues.  Every possible issue relating to Police and AGC and the evidence has been dealt with in great detail in public and cross examination and in submissions. So what is it that you want from a review that hasn't been publicly set out? 

 

43. Then you have a High Court judge who sets out his judgment and has set out what he said were the issues. So you got a judgment from a High Court setting out, this is where I felt that police were lacking and this is where I think the AGC was lacking. Right, so we have that process, which is, I think it would accept an independent process.

 

44. Next, as regards to AGC – they will go for another disciplinary tribunal (DT). The officers will give account of what they did and it will be dealt with by the DT. If the DT feels that there is a case to answer and it needs to be referred it goes up to the court of three judges, or the DT dismisses. Whatever it is, that is another independent inquiry. So that deals with the AGC part of your requirement for the Committee of Inquiry. 

 

45. Then there are the Police, three specific issues were identified - translation and two other issues. I've dealt with them, the three issues. 

 

46. So, I think you see the duties of Members of Parliament is not to repeat whatever is outside, but to apply our mind. Take whatever feedback there is, crystallise it, apply it to the facts, listen to the arguments on the other side, and then say: “Yes, I see all this. Now I will tell you what it is.” If you ask for a Commission of Inquiry, it is because you are not happy with something.  You feel that there is a reasonable basis for having an inquiry into something. So, you need to tell us which part of this requires further inquiry. I will answer your other points, but perhaps I can invite you to answer that.

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