So how can judge B sentence the guy properly without knowing anything?

There has been some “hoo-hah” lately over the report by Amnesty International in mid January 2004 entitled: “Singapore – The death penalty: A hidden toll of executions”.

In it, Amnesty International questioned various aspects of the death penalty in Singapore including its existence and application, and the fact that it is mandatory for certain offences, leaving the sentencing judge no choice.
In its detailed response dated Jan 30, 2004, the Ministry of Home Affairs sought to correct various errors in the Amnesty report and to rebut allegations of secrecy surrounding death penalty cases in Singapore. The Ministry further made “no apology” for the “tough law and order system” here, and quoted various surveys showing the Singapore justice system being ranked highly by businessmen and expatriates for being “fair” and “transparent”.

While I do believe our criminal justice system has commendable aspects, an examination of its operation will show that, in our overwhelming desire to be tough on crime, our system has evolved into one where fairness to the accused person has taken significant knocks. It is my personal belief that wrongful convictions are entirely possible. The purpose of this quick opinion is to highlight some unsatisfactory features of the system and suggest possible areas for review to correct the imbalance, especially if we continue to send people to the gallows.

Whether the death penalty should be retained or abolished is a contentious question even in the West, as witnessed by the fact that the countries of the European Union are dead against it while the Americans seem to have no problems with it. At home, many, if not most, Singaporeans seem to accept the need for tough measures against crime including having this ultimate punishment.

Singaporeans have grown accustomed to the PAP government’s “crisis mode” discourse, which, in the context of the death penalty, would be something like: “If we did not have the death penalty, crime would soar and Singapore would be crawling with murderers and drug traffickers”. The trouble with such a discourse is that it breeds a “them versus us” mentality and does not open the citizen’s eyes to the fact that, one day, he or his child may be a suspect in a criminal case. It also implicitly assumes that the police and prosecution do not make mistakes.

It is not my intention here to dissect the arguments for and against the death penalty, but to highlight certain weaknesses in our criminal justice process which need to be urgently addressed if a person is not to be wrongly convicted and punished, in some cases, with death.

Access to counsel

Although Article 9(3) of our Constitution provides that an arrested person has a right to consult a legal practitioner of his choice, this “right” has been whittled down drastically in its operation. Case law has established that the accused’s right to counsel is subject to the exigencies of police investigations, and the accused may only exercise his right to counsel if it does not jeopardize investigations. Who will decide whether allowing a lawyer in will undermine investigations? The reality is that the police will be the judge of that and it is very difficult to challenge the police on their views of how to conduct their investigations. What this means for the accused is that he may get to consult a lawyer sometimes as late as 8 weeks after arrest, and in any case after police have extracted statements from him.

Statements from accused

Clearly, an accused person’s statement confessing to a crime is extremely incriminating, and, under our law, a confession alone without any other evidence is a good basis to convict someone. In fact, under our Evidence Act as interpreted by case law, a statement by a co-accused person which incriminates an accused may also alone be the basis of a conviction. This goes against the position in other jurisdictions which have consistently warned themselves against relying on accomplice’s statements; after all, if one is in a sinking ship, it is human instinct to drag others down as well.

Under our Criminal Procedure Code, a voluntary statement made by an accused to or in the hearing of a police officer ranked Sergeant and above becomes admissible in evidence at his trial. This may be unobjectionable but for the fact that the statement which the accused made need not be in writing i.e. it can be oral. What this means is that a police officer can make a note (even a mental note) of what he heard the accused person saying, without any acknowledgement from the accused as to the accuracy of what the officer is noting. The officer can then come to court later to testify that the accused had said certain things.

The miscarriages of justice which occurred in the United Kingdom in the 1970s concerning the Birmingham Six and the Guildford Four bear remembering. There, suspects of Irish sectarian violence were convicted and sentenced to long periods of imprisonment, based on some forensic evidence and SIGNED confessions. After spending more than a decade in jail protesting their innocence, the forensic evidence was shown to be unreliable and the suspects were finally released. The suspects said they were coerced into signing the confessions. If such abuses or miscarriages can occur with signed confessions, what more with oral confessions unacknowledged by the accused?

Access to resources

A person accused of a capital crime in Singapore does face difficulties in preparing his defence. He will usually be denied bail and be remanded in custody pending his trial, which means he can only talk to his lawyer in prison in person or through correspondence. He will thus be fully dependent on his lawyer and, possibly, his family’s resources to secure factual evidence (e.g. witnesses) to support his defence.

If an accused has finances and is able to pay his lawyer well, the defence will be able to go all out in doing its own investigations and spare no expense in putting forth the defence. However, where an accused has no money to engage a lawyer or the lawyer he wants, the state will assign one to him (note: only if the charge attracts the death penalty; in all other cases there is no state-funded legal aid). Lawyers who are assigned by the state endeavour to do their best for their clients. However, there are some constraints. For instance, if the assigned lawyer thinks that putting up a good defence would require him to travel overseas or to bring in a foreign expert witness, such expenditure would require approval from the High Court registrar, which may or may not be given.

The burden of proof

The prosecution in Singapore still has to prove its case against the accused beyond reasonable doubt. However, some laws have made things easier for the prosecution by presuming facts against the accused once certain basic facts have been proved. For instance, under the Misuse of Drugs Act, once the prosecution proves that a person has control over a container or bag, it is presumed that he knows the contents (even if the bag is locked up by someone else), and if drugs are found inside it, he is further presumed to know the nature of the drug. The burden then falls on him to disprove it i.e. the accused must prove that he did not know he was carrying drugs, and he must prove it on a balance of probabilities i.e. convince the judge that his version is more likely to be true.

I can understand the frustration of the prosecution before these presumptions were introduced, in that the prosecution had to prove the intention or knowledge of the accused, which may not be easy at times. At this juncture, I am not certain myself if removing the presumptions is a feasible option.

Nevertheless, the presumptions pose real difficulties for the accused particularly if they are foreigners traveling to Singapore for a short time or in transit. The persons who are their potential defence witnesses will also be stationed overseas, and it would be near impossible to locate them and bring them to Singapore to testify voluntarily for the defence, especially if it would incriminate the witnesses themselves!

Recommendations for policy review

It is my personal view that the following are some areas of criminal procedure which need review to ensure fairness in the system:

· Setting a maximum time limit beyond which an arrested person must be given access to counsel in the course of police investigations;
· Oral confessions to police should not be admissible;
· Further facilitating remand inmates to assist their lawyers in preparing their defences e.g. making phone calls to his lawyer, family members and witnesses;
· If the presumptions against the accused in laws such as the Misuse of Drugs Act are retained, the standard of proof required from the accused be lowered e.g. to one of casting a reasonable doubt.
Conclusion

Having also been a police officer, I strongly believe that law enforcement authorities must be given sufficient support to be operationally effective in responding to crime. Nevertheless, as our nation matures, we should strive for a system which balances competing interests in a way which does not unduly compromise the national interest. Sometimes, administrative inconvenience will be necessary.

In this regard, the law and order debate must move beyond the rhetorical level. We may not like foreign agencies criticizing us; at the same time, we had better be sure we have a system where there are sufficient safeguards against wrongful convictions, especially if the outcome is an execution.