04 Nov 2020

Ministerial Statement on Parti Liyani v Public Prosecutor [2020] SGHC 187 (Part 3) - Speech by Mr K Shanmugam, Minister for Home Affairs and Minister for Law

Part 3

  1. Mr Speaker Sir. I have spoken at some length on the case and on the broader issues. Now I will deal with the questions Members have raised by way of PQs, which I have not already dealt with.

     

  2. Mr Murali Pillai, Dr Tan Wu Meng, Mr Vikram Nair, Mr Liang Eng Hwa, Mr Derrick Goh have asked a number of questions about the High Court’s observations, the agencies’ processes, the internal reviews, and related questions.

     

  3. Part 1 of my Statement has covered these points.

     

  4. Dr Tan and Mr Goh have also asked for some information on foreign domestic workers, theft cases, Court proceedings.

     

  5. I have said earlier, that the Police investigate around 14,000 – in fact 14,122 – theft-related cases, I think that was in 2016. For the specific offence of Theft as a Servant, an average of 528 arrests annually, with about 48% of them are foreign domestic workers. On average, about 70 or 27% of the 255 foreign domestic workers were prosecuted. We do not track data on how many of them claimed trial, or how many of them had legal representation.

     

  6. At the same time, the reverse side of the coin, from 2015 to 2019, 115 employers were prosecuted for committing offences against foreign domestic workers. This includes cases of physical and sexual abuse. 65 persons have been convicted, 21 cases are pending.

     

  7. Mr Louis Ng asked if foreign domestic workers and other Work Permit holders can be accompanied by non-legal personnel, similar to the Appropriate Adults scheme, for Police interviews. From 2015 to 2019, an average of 2,741 foreign workers on Work Permits were arrested each year as potential accused. Interviews have to be done quickly. I have earlier said the Police are already very stretched, let’s not stretch them further. It will be a very difficult exercise. Appropriate Adults (AAs) attended to 2,300 activations in 2019. These cases involved minors and mentally vulnerable persons. If we had to provide AAs for every foreign worker interviewed, we would have to minimally double the current volunteer pool, provide the training and resourcing, and some may require more than one statement, and this will become a real constraint and load on the Police. And each time you have an interview, you have to look for an AA, interviews will be delayed if the AA is not available, evidence could go missing, and there are other issues. The foreign workers are adults. The key is for th Police to make sure that the foreign workers understand the questions, and their answers are properly recorded, and it has to be open for scrutiny in Court – which it is.

     

  8. So that Members can understand the load on our officers, I will share the following. As I said earlier, the Police investigated 66,200 criminal cases in 2016 and they were handled by 1,100 IOs. Just to give Members a sense, the ratio of Police Officers to Population – and I have spoken about this previously in the House, and I am here referring to Police officers in general, not just IOs. New York at 0.42 per cent, London at 0.34 per cent, Hong Kong at 0.39 per cent, Singapore at 0.23 per cent including full-time National Servicemen. If we were to have the same numbers as Hong Kong, we will need 9,100 more officers. My entire Police force today, comprises 13,200 Police officers, including National Servicemen. If we were to have the same numbers as Hong Kong, we will have to have 9,000 more officers. If we were to have the same numbers as London, we’ll need 6,000 more officers. If we were to have the same numbers as New York, we’ll need 11,000 more officers. So, Members can understand and appreciate the load on our officers. And as I’ve said, I have spoken about this in the House more than once. My concern is that there is a limit to how much our officers can do, with increasing workload and increasing expectations, but without a proportionate increase in manpower.

     

  9. Mr Lim Biow Chuan asked how many State Court judges have previously worked as prosecutors in the AGC, and whether the Ministry will review the policy of separation of duties. This point has come up previously, and let me put it this way: The total number of lawyers in our Legal Service and Judiciary, excluding High Court Judges, is 801. That is a relatively small number.

     

  10. In this context, the question is: Why are officers posted between the State Court, and other parts of the Legal Service? Can there be independence if they are liable to be cross posted?

     

  11. Let me quote something, quite dated, what Mr AP Rajah, a former Speaker, and High Court Judge, said in 1963 “He thinks that if you are a D.P.P., then you cannot be a good district judge; if you are a district judge, then you cannot be a good D.P.P.; if you are a first-rate D.P.P., then you cannot make a first-rate Assize Judge. He seems to suffer from that misapprehension, merely to say that because one has been a D.P.P. and that therefore when he gets on to the Bench, he is going to side with the prosecution, is not correct and is not fair to the profession.” I’m not suggesting that Mr Lim or anyone else is under any misapprehension. I think it’s a fair question and this was said in 1963, when the number of officers was much smaller.

     

  12. What is the situation now? Today, all movements in the Legal Service are overseen

    by Personnel Board(s) and/or Committees, all chaired by the Chief Justice and the Legal Service Commission, of which the Chief Justice is the President.

     

  13. The Legal Service Commission takes the view that rotation has three major benefits. One, it provides access to a larger pool of talent, to select State Court judges with the right blend of temperament, knowledge and experience. Two, it develops Legal Service Officers (LSOs) into well-rounded officers by exposing them to and training them in different fields of legal work, and allowing them to learn about their strengths and weaknesses. And this benefits the Legal Service and Singapore, no matter where the LSOs are posted in future. Three, this also gives flexibility, for instance, to accommodate LSOs who want to try different types of work, or LSOs who have a change of heart about their preferred line of work. Judges who have prosecutorial experience will bring added knowledge to the work.

     

  14. However, significant changes have also been made. In 2014, PM announced greater specialisation in the Legal Service. There are now two separate career tracks for the middle ranks of LSOs. One is the “Legal” track and the other is the “Judicial” track. LSOs on the Judicial track are posted to jobs within the Judicial Branch, and they are assessed by a separate Judicial Branch Special Personnel Board, headed by the Chief Justice

     

  15. PM explained why this was done. “We need a first-class Legal Service that in turn calls for a first-class personnel management system to attract and retain the best people, to remunerate them fairly with reference to the market, to groom talent systematically and prepare them for leadership positions and to imbue officers with the right values and commitment to Singapore. Up to now, we have always decided to stick to the integrated model because we had too few officers to support two separate services, and we believed that LSOs would have a better career path in one single integrated service. But it is timely for us to review the position again, in the light of changing circumstances. First because the Legal Service is much larger, so officers can specialise without conscribing their career prospects. Second, because the scope and complexity of work, whether in the Government ministries, whether in the Attorney-General’s Chambers (AGC) or in the Courts, the scope of work has in all cases grown enormously. In the Government, in the ministries, there are more responsibilities. Hence, we need more specialist and expert skills than ever before.

     

  16. Thus, Legal Service Commission (LSC) introduced two separate career tracks for LSOs up to Grade 3 – the “Legal” and “Judicial” tracks. Eligible officers can elect to specialise along either track. They will then be posted to jobs within either the Legal Branch or the Judicial Branch. To oversee the two career tracks, two new Personnel Boards under the LSC – the Legal Branch Personnel Board and the Judicial Branch Personnel Board were established. These Boards manage the LSOs in the respective Branches. However, even as we promote more specialisation, it is critical that the Legal Service operates as an integrated whole. The specialisation into the two tracks is for the middle ranks of the Legal Service. Junior officers starting out on their careers will still be posted to different departments and across Branches to develop them in different fields of legal work. Beyond Grade 3, the senior officers at Grade 2 and above will still be managed by the LSC because at that level of seniority, there will only be very few officers and it is necessary to continue with the integrated model, to provide better career options and flexibility in deployment to meet the needs of the Service.”

     

  17. The approach we have adopted strikes a balance between specialisation and integration, with safeguards for judicial independence. The system is working well, and we think that this is what is good for Singapore.

     

  18. Mr Leong Mun Wai has asked whether there can be an expedited trial process for foreign, economically vulnerable accused persons, and he has also asked about the interpretation services in SPF.

     

  19. First, on trial processes. The median time taken in Court for a criminal case, from being first charged in court to judgement, is 15 months. Median. This depends on the nature of case, availability of Counsel, DPPs, how long the trial itself takes, documents, witnesses, challenges that the Prosecution and Defence make, and time taken for deliberation. The State Courts, as I said earlier, handle about 600 criminal trials per year. We have 55 Judges to handle these trials. Again, it’s a very heavy load for the State Courts. About a quarter or 22% of these cases involved foreigners. If we expedite a case for a foreign person, then a Singaporean accused will have to wait even longer, if we take Mr Leong’s suggestion.

     

  20. So, having a criminal case pending, why should we make Singaporeans suffer disproportionately more? If I can give one example – we had a 51-year old Singaporean accused person, charged in March 2020 for two counts of Shop Theft. He claimed trial to the charges against him and was remanded. In June 2020, AGC assessed that his remand period of 3 months at that point, might outstrip his possible sentence, even if he were to be convicted. At the Public Prosecutor’s request, the trial was brought forward and conducted on an urgent basis. A two-day trial was conducted, after which he was convicted and sentenced to 16 weeks’ jail. There will be many other cases like this, but even if there is no specific remand situation, if you bring forward some people in the queue, the others in the queue will have to wait longer, and I don’t think it is fair to Singaporeans to do what Mr Leong suggested.

     

  21. Second, on the interpretation service, I have given a fairly extensive answer. The Police currently employ a pool of interpreters for the three official working languages (i.e. Chinese, Malay and Tamil) as well as more common local dialects (i.e. Hokkien, Teochew, and Cantonese). The Police will engage the services of interpreters if the interviewee is unable to understand the language used by the interviewer or vice versa. For Foreign Languages, the Police will engage the services of foreign language interpreters on an ad hoc basis. There is a framework to assess the suitability of interpreters, which includes their qualifications and relevant work experience.

     

  22. As regards to Ms Liyani in this case, she was asked. She said she could speak in Malay. The point is whether the interviewee understands the language being used, and as I said earlier, the Police have been told that they must check this.

     

  23. Mr Zhulkarnain and Mr Leong Mun Wai have asked about increasing legal aid for accused in criminal cases, and secondly, increasing the honoraria paid for lawyers under CLAS.

     

  24. Ms Carrie Tan has also specifically asked if we will consider having a Public Defender Scheme to defend accused persons in criminal cases.

     

  25. Let me give Members some background to the Criminal Legal Aid Scheme, or CLAS.

     

  26. CLAS aims to provide legal aid to persons facing non-capital charges. It is administered by the Law Society’s Pro Bono Services (“LSPBS”)

     

  27. This scheme was started in 1985. The initiative came from the Law Society, senior lawyers, in particular, the late Mr Harry Elias, and it was an outstanding initiative by the profession. There is in place a framework, an assessment process, means and merit tests applied in each case. to try and ensure that funding is targeted, allocated to applicants who are most vulnerable and who genuinely need assistance.

     

  28. The Government pays 75% of CLAS’s operating costs. This goes towards general operating costs including staff salaries and overheads. This was decided in 2014, I announced it, and it started in 2015. Where the accused are Singapore Citizens or Permanent Residents, the money can also be used to pay honorarium. CLAS funds the remaining 25% of its costs through private donations, LawSoc pays some, and this sum is also used to defend foreigners who need criminal legal aid. But I should make clear. I refer to honorarium. The honorarium that is paid is extremely nominal. It is effectively pro bono.

     

  29. It is a system where the Government funds some part, the private Sector funds some part through cash donations, and lawyers giving their time. Should we change this model and go for full Government-funded Criminal Legal Aid?

     

  30. Let me first give Members a sense of the experiences of other countries. I will just give the experience of two countries, though we can look at many countries’ experiences.

     

    UNITED KINGDOM

     

  31. England and Wales offer a fully government-funded criminal legal aid scheme which comprises both a public defender scheme with in-house government lawyers and a legal aid scheme that outsources cases to private lawyers.

     

  32. There has been much public debate and outcry in the UK over these schemes for various reasons, including abuse and escalating government costs.

     

  33. First, there has been much unhappiness over the large legal aid fees, especially evident in cases where legal aid was spent on lengthy trials for defendants who were ultimately convicted. For example, three men who were accused of the murder of a policeman, Andrew Harper. When they tried to evade arrest, he tried arresting them and they killed him. It cost the UK taxpayer S$817,000 in legal aid fees in 2008, and they were convicted of manslaughter. Another case was that of Ben Butler and his partner Jennie Gray, who were convicted of murdering Butler’s six-year old daughter, and of child cruelty. Both were granted nearly S$2.64 million in legal aid expenses, covering both their criminal cases and a custody battle with the child’s grandparents.

     

  34. There have been many reports about rich defendants who received legal aid as their assets were frozen, but they remained wealthy enough as the state did not manage to seize all their assets.

     

  35. Around 50 defendants with more than S$1.76 million in illegally obtained assets were found to have received legal aid in 2012. One of these was Virendra Rastogi, a London metals trading tycoon, who owned a S$10.55 million home and arrived in court every day in a chauffeur-driven car, and he received S$8.79 million worth of criminal legal aid. These defendants were ordered to repay their legal aid costs, but some failed to pay up despite court demands.

     

  36. Given the large legal aid costs, it has been difficult for the UK government to sustain this level of spending. The government has had to implement drastic cuts to legal aid budgets since 2012, but these reforms were strongly opposed by the legal industry. Lawyers deemed the reformed fee schedules to be inadequate, went on strikes in 2014 and again in 2018, to oppose cuts, disrupting court proceedings, and delaying the resolution of criminal cases.

     

  37. In one case, a convicted drug dealer was allowed to keep his alleged S$7.9 million fortune because of delays in finding a legal aid lawyer to represent him in confiscation hearings. The lawyers’ protests eventually resulted in more watered down reforms, continued escalating legal aid costs for the Government, and legal aid lawyers won a S$40 million fee rise after the 2018 strike.

     

  38. You must note that once you make legal aid a requirement, then you cannot proceed with the case until you find a lawyer who is willing to handle it for the fees that he proposes.

     

  39. If we take Ms Liyani’s case as an example, the Defence Counsel has estimated that if full fees were charged, it could have cost $150,000. If we make Criminal Legal Aid a requirement, then the taxpayers will have to pay that amount, or whatever the Defence Counsel requires, it could be more, it could be less. Or have the trial postponed until a lawyer is found. This is what is happening elsewhere. So, I welcome suggestions, but Members please look at these points. And then when you make your points, maybe offer concrete suggestions on how we can avoid what has happened elsewhere, if we want to go down this route.

     

    HONG KONG SAR

     

  40. My second example is Hong Kong. Hong Kong has a fully government-funded public defender scheme that outsources part of its cases to private lawyers and the Law Society. Hong Kong spent a total of S$217 million on both civil and criminal legal aid in 2017. Hong Kong has also experienced escalating legal aid budgets due to continual increase in lawyers’ fees of around 4% to 10% every year.

     

  41. This is why we have been very careful.

     

  42. We also looked at the situation in Australia and New Zealand, raised similar issues. I will not go into them, but we knew it can get very costly, and very difficult to manage.

     

     

    OUR SITUATION

     

  43. In our situation, we have been very fortunate because our legal profession has worked with the Law Society, the Government. We’ve got CLAS. It’s been a cooperative relationship and a strong public spirit. We make Singapore a vibrant legal centre. It means our lawyers do well in the other areas, and we are able to encourage the Pro Bono spirit at the same time.

     

  44. Mr Leong has asked, can we increase the Honoraria that is paid to lawyers under CLAS.

     

  45. My preference is to keep the Pro Bono Spirit. A mix of lawyers employed specifically by CLAS, small number, lawyers from private sector coming in. I think is a better approach.

     

  46. So, our approach has been, legal aid for those who truly need it with Public + Private partnership, tapping on the excellent pro-bono spirit of our lawyers. Should we give it up?

     

  47. I will say this. We are also not completely satisfied with the current model.

     

  48. These are some hard questions. How can we better help those who can’t pay for lawyers and yet make sure that we don’t go down the road, that other countries have travelled.

     

  49. Last year, we reached the 5-year mark since the enhanced CLAS was announced in 2014. As I said earlier, CLAS was initiated in 1985 by the late Mr Harry Elias SC, together with a group of lawyers, to better help those who could not pay for a lawyer. In 2015, pursuant to my announcement in 2014, we enhanced CLAS, with the support of the legal profession. We started reviewing the enhanced model last year. We have been considering different other possibilities, including possibly a Public Defender’s Office.

     

  50. CLAS today covers the lowest 25% in terms of household income. Should we expand that number? I am happy to hear from Members. We will consider suggestions seriously.

     

  51. I should also mention, that in 2014, when we announced the enhanced CLAS, some in the legal profession were concerned that this was going to eat into their rice bowl. There was some disquiet. We received a Petition from some lawyers about the possible adverse effect of enhanced CLAS on their work, on their livelihoods. Then-SMS Indranee and I met some concerned members from the Criminal Bar in 2014, we showed them the figures that we were not going to take away their work, that we were helping those who could not have gone to them anyway. People need to be helped, and that is central to the Government’s mission.

     

  52. Our profession has 781 firms who have between one to five lawyers in the firm. Of these 781 firms, 233 firms practise criminal law. In terms of lawyers, that’s about 750 lawyers who practise criminal law.

     

  53. Many depend heavily on the smaller value legal work on criminal cases.

     

  54. We should aim to have a structure that helps those who truly need help, but doesn’t become an unacceptable strain on the Treasury. Those who can afford to pay for lawyers, the taxpayer should not have to pay for them.

     

  55. In this context, the Public Defender’s Office assisting, together with the Means and Merit test, seems like a good option.

     

  56. Law Society is in principle supportive of expanding criminal legal aid in order to enhance access to justice. However, the LawSoc Council had expressed strong concerns on the impact on paid work, especially for small firms. They had doubts as to whether this proposed expansion that the Government has been discussing with them, would so neatly capture Singaporeans who couldn’t afford lawyers’ fees. The Criminal Bar reps have counter-proposed to expand the coverage of offences rather than increase the means test coverage.

     

  57. We will continue discussions and decide. The primary factor will be, as I have said, to ensure that those who can’t afford lawyers can get access to justice without the situation becoming fiscally difficult for the taxpayer, and the Government is discussing, but in principle, prefers the approach of a Public Defender’s Office.

     

  58. So, the answer to Ms Carrie Tan’s questions is, yes, we have been and are considering seriously the Public Defender’s Office. We will study the details and feasibility of this further, in consultation with Law Society and the Criminal Bar. I have used the term Public Defender’s Office assuming that everyone understands what it means. Maybe I should explain. Public Defender’s Office means the Government pays for the lawyers, employs the lawyers in a separate structure, and they act in criminal cases to defend the accused with a suitable Means and Merits test. How many officers, how big, how much, are conversations we need to have with Ministry of Finance amongst others, but in principle, we will have to first discuss it with the profession, and then talk to MOF and deal with the issue. But in principle, our approach I think, might have to go down that route, and we are, at least my Ministry, Ministry of Law is in favour of this approach.

     

    COMMITTEE OF INQUIRY

     

    (I) WHAT MR LEONG HAS ASKED FOR : LEGALLY NOT DOABLE

     

  59. Finally, a Committee of Inquiry. Mr Leong has asked for a Committee of Inquiry to consider the conduct of the Police and AGC in relation to Ms Liyani’s case.

     

  60. I assume his concern is whether there was any undue influence by, or on behalf of, the Liews on the Police or AGC in this matter.

     

  61. Sir, Committee of Inquiry under Section 9 of the Inquiries Act. It sets out a list of purposes, for which a Committee of Inquiry may be appointed. Accidents involving death, serious injury, or serious property damage. Incidents that may endanger public safety or public health. Conduct of a Ministry, Department or statutory body falling under the responsibility of the Minister. Conduct of any officer employed by such Ministry, Department or statutory body.

     

  62. It will be clear to Mr Leong, if he had looked at Section 9, that I don’t have the power to appoint a Committee of Inquiry in respect of AGC, because it is not an agency that reports to me.

     

  63. Now that I have shown the Member this, I think he will acknowledge that his request is legally not doable.

     

    (II) Broader Points:

     

  64. Let me make a set of broader points

     

  65. If the Member really wants another inquiry into this matter, then what will be necessary is a Commission of Inquiry, not a Committee of Inquiry.

     

  66. That is very high level, headed by a Supreme Court Judge, or someone qualified to be a Supreme Court Judge.

     

  67. I am prepared to recommend to Cabinet that we have a Commission of Inquiry.

     

  68. But Member should first tell us what he wants this Commission of Inquiry to look into. And he should confirm that he will come to the Commission of Inquiry and state his position.

     

  69. I say this for the following reasons.

     

  70. The officers involved, both AGC and Police, have confirmed categorically that there was no improper pressure. This case was dealt with as a routine case. I have set out the facts, what has happened. It shows clearly there was a good prima facie case to proceed

     

  71. There is also the Disciplinary Tribunal which will inquire into the complaint against the AGC officers.

     

  72. Thus, before we have a Commission of Inquiry which is a serious matter, will take up resources, lots of time and more work, Member should specify what part of this matter continues to reasonably make him believe and question that undue influence was used by the Liews.

 



Annexes
Annex 1 (138kb, .pdf)
Annex 2 (164 kb, .pdf)
Annex 3 (343 kb, .pdf)
Annex 4 (303 kb, .pdf)
Annex 5 (367 kb, .pdf)
Annex 6 (184 kb, .pdf)
Annex 7 (344 kb, .pdf)
Annex 8 (68 kb, .pdf)
Back to top