This Bill before Parliament now has undergone some changes from the initial Bill which was floated for public consultation. I am happy to note that some points in my submission to the Ministry have been taken into account in this revised version.
This Bill makes some progressive changes in 3 important areas: pre-trial disclosure framework, crime victims’ redress and community-based sentences.
Pre-Trial Disclosure Framework
The Bill provides for more balance between the state and the defence in preparing for criminal trials. The much-awaited statutory framework for pre-trial disclosure is now out. There will now be more disclosure between prosecution and defence in criminal cases – the prosecution will now be required to furnish to the defence all statements made by the accused at any time, even those only useful to the defence. This is an improvement from the current position when such important evidence may be withheld from the defence and the court. Likewise, the defence has disclosure obligations to reveal its defence before trial.
While the framework is a significant step forward, I have one concern about this. Under the new S 231, it is still possible for either side to call witnesses or produce exhibits not disclosed at the pre-trial disclosure conference, so long as `prior notice’ is given in writing to the court and the other parties to the case. It is not stated how much notice must be given. Will this be a loophole for either party not to disclose everything at the pre-trial conference and introduce new evidence at the last minute? If so, this will defeat the purpose of the framework.
Crime Victims’ Redress
For too long, the criminal justice system has focused on punishing the offender, and neglected the harm and damage caused to the crime victim. Thus, the crime victim has had to pay for medical treatment or replace his property with his own funds, and suffers inconveniences in having to attend at police stations and court hearings, with nothing in return.
The Bill has several provisions which recognize the crime victim as a stakeholder in a criminal case. It is now mentioned that a sentencing court can consider a Victim Impact Statement (the new S 228). This will enable the court to specifically consider the harm caused to the victim in determining the appropriate sentence. In addition, it will now be mandatory for a sentencing court to consider whether to also order the offender to compensate the victim for injuries or other losses (the new S 359). If used well, these provisions will make the process more meaningful for the victim and is a step closer to the progressive regimes in other developed countries such as Australia.
One concern about this is whether these provisions will end up simply being on paper and not actively used. For instance, I note that under the current practice, the Victim Impact Statement is not recorded by the police in the majority of cases. I would like Minister to clarify whether there is going to be any change to this practice i.e. will the VIS be recorded by the police in future in a wider variety of cases? If not, the court may not have the information readily at hand to adjust the sentence or to order compensation, which will undermine the purpose of the changes.
Community-based sentences
Increased options of community-based sentences are available in lieu of incarceration. As a general rule, keeping minor offenders out of jail is a good principle. However, we should be careful that we do not inadvertently end up processing more people through the system and leave more people with criminal records. This `net-widening’ could result if we start to prosecute people who would otherwise have been let off with a warning, just because we think there are `light’ sentences available.
Apart from these 3 areas, I have some other concerns about specific provisions in the Bill. These concern the composition of Penal Code offences, changes to the provisions on caning, the powers of the court on appeal.
Composition of certain Penal Code Offences
The Bill makes a significant change regarding offences which can be compounded by the victim under the Penal Code.
Under the existing law, certain minor Penal Code offences can be settled between the victim and the offender provided it is allowed by the Court. For example, in outrage of modesty cases, the victim may accept an offer of compensation and an apology, in exchange for an acquittal, provided the Court allows it. Such a route is only available for certain minor offences specified by Parliament – the CPC provides that for those offences, the victim is empowered to compound.
The new S 241 removes the Court as the approving authority and gives this role to the Public Prosecutor. The rationale for this, according to the MinLaw Consultation Paper 2008, is that the Public Prosecutor will have the public interest in mind when he exercises this power. However, it was not explained why it was felt that the power needed to be taken away from the Court.
There have been several local cases where the Court allowed an offence to be compounded, despite objections from the Public Prosecutor. In the reported case of PP v Norzian bin Bintat [1995] 3 SLR(R) 105, the accused had been charged with voluntarily causing hurt. He had made an offer to the victim who was willing to compound the matter. The Public Prosecutor objected to the composition. The court found that there were no aggravating factors, the injuries were minor and the parties had patched up their differences, therefore there was no reason to re-open old wounds by going through with the prosecution. The High Court clarified then that the court was not a rubber stamp but had to make a judicial decision, apply the rules of reason and justice, and consider the public interest. In that case, it found no public interest element why the offence should not be compounded.
Past cases show that there are instances where the Court and the Public Prosecutor differ as to what the public interest requires. With due respect, what reason do we have to think that the Public Prosecutor is superior to the Court in this regard?
In addition, the Public Prosecutor is a party to all criminal cases, on the opposite side of the accused person. Since this is an adversarial system, it is better to have the Court, an independent party, to assess whether the composition should be approved. The prosecution can always make its views known to the Court before the Court makes its decision.
I also do not see any compelling reason to move this decision from Open Court to the Executive Government, resulting in a loss of transparency and clarity to the general public.
Changes to the Caning Provisions
We are one of the few countries which continue to have caning as a judicial punishment.
However, though certain offences attract caning, some people are unable to suffer it. There are 3 main circumstances. First, ineligibility – women, and men above 50 or sentenced to death, are not eligible for caning (new S 325). Secondly, serial offenders – a serial offender who is sentenced for several offences may be liable for more than 24 strokes, which is above the specified limit and illegal (new S 328). Thirdly, a caning which is discontinued – caning of an offender may have begun, but the caning is stopped halfway by a medical officer who finds that the offender is not medically fit to complete it (new S 332). In these 3 circumstances, I do agree that a question arises about fairness vis-à-vis other offenders who are able to suffer caning.
Under the current law (S233), when a caning was stopped halfway, the court could sentence the offender to additional imprisonment of up to 12 months to make up for the unexecuted caning. However, there was an express proviso to that section. Under S 233(2), the court could still not impose a term exceeding the accused’s liability under the law. In other words, if his offence attracts a maximum of 7 years jail, his original jail term plus the jail term in lieu of caning should not be more than 7 years. Neither was the Court allowed to exceed its sentencing jurisdiction under S 233.
The new provisions change that. For all the 3 situations I mentioned, the Court can add imprisonment of up to 12 months in lieu of caning. It is further stated that the aggregate imprisonment term after this addition may exceed the maximum jail term for the offence he committed and may even exceed the court’s sentencing jurisdiction.
While I can accept that imprisonment can be added in lieu of caning in all 3 circumstances, I have great discomfort in allowing the combined jail term to exceed the statutory maximum imposed by Parliament for the offence.
The maximum jail term prescribed by Parliament is there for a reason – to reflect how much loss of liberty should be suffered by an individual in the worst possible case. Furthermore, since the courts rarely impose the statutory maximum jail term when sentencing an offender, there will usually still be room for them to add imprisonment in lieu of caning while remaining within the statutory maximum.
Would Minister clarify why this change is needed?
Court Powers on Appeal
This issue concerns ensuring that accused persons have confidence in filing appeals.
I raised in MinLaw COS (Committee of Supply) debates 3 years ago. There have been cases where offenders appeal against their sentence being too heavy, and the prosecution does not appeal that the sentence is too light – yet the offender’s sentence was enhanced by the appeal court. This possibility of a boomerang on appeal will deter some offenders from appealing against their sentences, for fear of a worse outcome.
We should be concerned that people must feel free to exercise their rights of appeal in criminal cases, without jeopardizing themselves. It is still my view that the CPC should be amended to provide that when only the accused appeals against sentence, the court can either maintain or reduce the sentence, but not enhance it.
Two areas for future review
Finally, there are two other areas left unresolved which the government should review, if not now, then in the near future.
First, the question of access to counsel, as touched on by Member Alvin Yeo before me. As the current law stands, an arrested person will not be allowed to consult his lawyer until the police decide that their investigations will not be jeopardized. This is despite the fact that the Constitution provides the fundamental liberty that an arrested person shall be allowed to consult a legal practitioner of his choice.
The Constitution was amended last month to allow the police to apply for court orders to detain a person beyond 48 hours via video link. Therefore, it will no longer be required to bring the arrested person to the Court premises and produce him in person before the Magistrate. I argued then why this compromises the Constitutional liberties, as the custody will be extended while the person remains in the police facility, and the court does not have direct contact with the person under arrest to ascertain his condition.
Since that amendment has now been passed, the right to counsel as a check becomes all the more critical.
I urge the government to study seriously the possibility of setting a statutory time limit after arrest when counsel must be allowed to see the arrested person, say a few days or, at most, one week after arrest.
Lastly, pre-trial disclosure. The statutory framework in this Bill is a welcome improvement. Once this has been in operation for some time, the government should strive to go a step further – towards a best practice of disclosing evidence it has collected which it does not intend to use, which could be helpful to the defence. As the police are often the first at a crime scene with powers to seize evidence and take witness statements, what they gather at the time of the crime is likely to be reliable. By contrast, the defence is not empowered to compel such evidence.
Such disclosure is required in the United Kingdom where there are rules for Disclosure of Unwanted Material set out in their Criminal Procedure and Investigations Act 1996 and Joint Operational Instructions issued to the Crown Prosecutors and Police.
The logic of this is straightforward. Reliable evidence should not be kept away from the Court.
I hope the government will look into these 2 areas in the near future.
Overall, some important improvements have been made to the CPC. However, there continue to be areas for concern and further review.
