The criminal process The Singapore model

CHAN SEK KEONG*

PARTI A. Introduction1 The subject of this lecture has troubled the criminal bar and the law teachers of the NUS Law Faculty. The criminal process is at the heart of the criminal justice system. It is not only a subject of great practical importance; it is also a reflection of our ideals and values as to the way in which we can accord justice to both the guilty and to the innocent. As a result of a series of prosecutions during the last 5 years of foreigners for various offences committed in Singapore,2 our criminal justice system has become the focus of world attention. It has been praised and condemned at the same time for its merits as well as for its failings in unequal measure. For some, it is a model to follow, for others, a model to avoid. But it is a model which I believe the Singapore public has confidence in; and which has maintained peace, security and good order in the
*

Attorney-General, Singapore (May 1992-). He writes to acknowledge his gratitude to Toh Han Li, Deputy Public Prosecutor, for his assistance in preparing this lecture. This article is adapted from the 10th Singapore Law Review Lecture delivered on 26 September 1996. Flor Contemplation v PP [1994] 3 SLR 834; Michael Fay v PP [1994] 2 SLR 154; Johannes van Damme v PP [1994] 1 SLR 246; The William Safire articles; Rajan Pillais trial, The Spectator, 15 July 1995; PP v Nick Leeson DAC 22050-60/95; AG v Christopher Lingle & 4 Ors [1995] 1 SLR 696.

1 2

433

434 Singapore Law Review (1996) country. This does not make it better than others, and we should not make such a claim. Each country must have a criminal justice system which meets its own needs. If the electorate deserves to have the politicians it elects, equally, a country deserves the criminal justice system it has. Singapore is a relatively crime-free country, especially with regard to crimes of violence, including sexual offences, crimes against public and private probity (like corruption) and drug trafficking. This state of affairs is usually attributed to the policies of the Government on crime control, as evidenced by the laws enacted to suppress these offences and the so-called drift-net laws to control even minor forms of anti-social conduct. Most Singaporeans, I believe, appreciate the safe environment they live in and support a criminal justice system that is responsible for it. But, of course, not all Singaporeans are persuaded. Civil libertarians will say that crime control policies must not be implemented at the expense of weakening or even losing ones civil liberties. Others even doubt that the strict laws can achieve their social objectives.3 The Confucian doctrine that the rule of virtue is superior to the rule of law is an idealistic view of human nature. It is not known to have flourished in any society since written history began. A modern civilised society can only exist and survive under law. In Singapore, even the great virtue of filial piety needs a safety net in legislation.4 But a sense of justice pervades every civilised society, and justice requires that errant members should not be punished for their transgressions except in accordance with law. Some civil libertarians even insist that no person should even be subjected to any risk of punishment without probable cause.

Michael Hor: The Presumption of InnocenceA Constitutional Discourse for Singapore [1995] SJLS 365, 372 where he writes, Whether such [statutory] presumptions actually aid the war on drugs is questionable... See the Maintenance of Parents Act (Chapter 167B).

435 In the context of criminal justice under the common law, one principle stands out. In Ong Ah Chuan,5 Lord Diplock states the principle in this way:
One of the fundamental principles of natural justice in the field of criminal law is that a person should not be punished for an offence unless it has been established to the satisfaction of an independent and unbiased tribunal that he committed it. This involves the tribunals being satisfied that all the physical and mental elements of the offence with which he is charged, conduct and state of mind as well where that is relevant, were present on the part of the accused. To describe this fundamental rule as the presumption of innocence may, however, be misleading to those familiar only with English criminal procedure. ... What fundamental rules of natural justice do require is that there should be material before the court that is logically probative of facts sufficient to constitute the offence with which he is charged.

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In the last few years, beginning with the tenure of the incumbent Chief Justice, the criminal process in Singapore has begun a new phase of development of its basic principles through judicial reconsideration and refinement of case law principles and the reinterpretation of statutory provisions. This came about as a result of the large number of capital cases that have come on for trial and on appeal in the last few years and also the practice of the Chief Justice himself to hear all criminal appeals from the Subordinate Courts to the High Court. More appeals mean more novel points of law, more arguments, more dicta and more decisions. Another contributing factor is the greater prosecutorial awareness of the need to refine and improve the criminal process. This awareness has been translated into appeals and referrals of points of law by the Attorney-General to the Court of Appeal for determination. Here, I should explain why there have been more frequent interventions by the Attorney-General of this nature. Where the accused is convicted for an offence tried in the High Court, the Public Prosecutor cannot appeal and therefore has no opportunity to seek to correct
5

[1981] 1 MLJ 64.

(1996) 436 Singapore Law Review any pronouncements on a point of law which, although not affecting the decision in the case, may have adverse consequences for prosecutions in the Subordinate Courts. More than 90% of criminal prosecutions are processed in these courts. The last time a district judge decided not to follow a statement of law made by the High Court on the ground that it was made per incuriam, he was roundly chastised by another High Court Judge on appeal.6 As state prosecutors, we have an obligation to exercise vigilance in ensuring that the criminal process is not, through default, made more difficult for us in the successful prosecution of the guilty accused. Currently, it is not unfair to say that the criminal bar is less concerned about the needs of an efficient and effective criminal process than about how such a process would affect its professional role. It cavils at so-called driftnet laws, statutory presumptions and the effects of some judicial decisions which, undoubtedly, reduce the armoury of procedural and other defences available in the defence of the accused. Under our adversarial system of trials, defence counsel are not concerned with the factual guilt of the accused. What is relevant is whether the prosecution is able prove its case beyond reasonable doubt. Every law or judicial decision that weakens this principle is viewed with concern, and even despair. There was a time when some members of the criminal bar even believed, through the power of anecdotal evidence spreading through the Bar room, that the Chief Justice had decided to enhance sentences on appeal in order to deter appeals, and not because he decided each case on its merits. The empirical data actually contradicted this belief and showed that most of the sentences were enhanced on appeals by the prosecution and the others were enhanced because they were manifestly inadequate. However, for all their concerns, the criminal bar, as a whole, has not been able to express their views through well-argued or reasoned writings, as contrasted with the measured reactions of some law teachers as expressed in the academic journals. There appears to be a growing mood among the teachers of criminal
6

Goh Cheng Chuan v PP [1990] 3 MLJ 401 per Thean J (as he then was).

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law and procedure in the NUS Law School that our criminal process is now tilted against the accused, and that its underlying common law traditions and values are being uprooted slowly but surely in favour of a model which accepts a high risk of the innocent accused being charged and convicted. If these concerns have substance, then we should correct this state of affairs as soon as possible. But I believe that the concerns of the criminal bar and of the law teachers are exaggerated. There is much in the criminal process that protects the interests of the accused from being wrongfully convicted, especially if he is innocent. Protecting the innocent accused is a primary objective of the criminal process and those who operate it, especially the judges. But, it has to be recognised that it is simply not practical to try to establish a process that ensures that no innocent person will ever be convicted. In theory, such a process can be established but it will only become a charter for murderers, rapists, robbers, and other criminals, etc to act with impunity. B. The function of the criminal process What is the criminal process? It is the aggregation of all the activities that operate to bring the substantive criminal law to bear (or to avoid bringing it to bear) on persons suspected of having committed crimes.7 It normally begins with the reporting of a crime to the police and ends with the final disposition of the case against the accused for the commission of that offence. This process covers the pre-trial investigation by the police, the evaluation of the investigation papers by the prosecutor, the decision to proceed or not to proceed, the charge to prefer, the arrest of the accused, his preliminary appearances in court with or without counsel, his release on bail or further remand, the disclosure or discovery of prosecution evidence, the plea bargain, if any, the preliminary inquiry for offences to be tried in the High Court, the trial of the accused and the post-trial processes of mitigation, sentencing and appeal if he is convicted.
7

Herbert Packer, Two Models of the Criminal Process (1964) 113 Univ of Pennsylvania Law Review 1.

(1996) Singapore Law Review 438 The accused is regarded as the important actor in the entire process. The legal process as developed is still predicated on the accuseds rights, eg, the right to a fair trial, the right, if he is innocent, not to be convicted, amongst his other rights. Traditionally, the victim is regarded as the unfortunate cause of the accuseds temporary predicament. What is the criminal process for? It is to process crimes within an established legal system in accordance with procedures laid down by the law so that the guilty can be punished for their crimes. In Winston Brown,8 Steyn LJ (as he then was) said:
The objective of the criminal justice system is the control of crime, but in a civilised society that objective cannot be pursued in disregard of other rules.

The process requires a trial in accordance with the fundamental rules of natural justice. It is arguable that in principle these rules do not require that the criminal process must favour the accused, in whatever degree. But, as developed, they require the court to give him every consideration so that if there is a reasonable doubt about his guilt, he is to be acquitted. It is also arguable that the rules do not prohibit the criminal process from preferring crime control in the larger interest of the community, so long as they are not obviously unfair to the accused.9 What that balance should be, between community needs and individual rights in the criminal process, is determined by the ideological and social goals of the government of the day. If anything has been made clear in Singapore, it is that crime control has always been and is a high priority on the Governments action agenda. The efficient and effective maintenance of law and order in Singapore is considered absolutely essential to its social, economic and political well-being. The criminal process plays a central role in the criminal justice system to facilitate the achievement of those goals.

8 9

[1995] 1 Cr App R 191. Lord Diplock in Haw Tua Tau [1981] 2 MLJ 49 at 50.

17 Sing LR

10th Singapore Law Review Lecture C. Detention without trial

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Indeed, the Governments credo that the strict maintenance of law and order is so vital to the welfare of its citizens that it was prepared to discard the established trial process and its application of due process norms in two areas of criminal activities and substituting in its place detention without trial. These are (1) unlawful activities of secret societies and other criminals under the Criminal Law (Temporary Provisions) Act, and (2) drug addiction under the Misuse of Drugs Act. Detention without trial is the most efficient and most effective form of crime control that can be devised. It is the weapon most feared by secret societies. That is why Hong Kong triad societies do not operate in Singapore. If the most desired standard of proof in the criminal process is proof beyond any doubt, that standard is achieved under the Misuse of Drugs Act because no person is detained unless a blood test shows the presence of a controlled drug, thereby proving drug consumption beyond any doubt. If an acceptable norm of the criminal process is that there should be a trial or hearing before an independent and unbiased tribunal before a persons liberty can be taken away, the post-detention hearing provided for criminal detainees is a fair approximation of such a hearing, as the detainee is entitled to make his defence to a review board, consisting of practising lawyers from the private sector, which then recommends on the evidence placed before the members whether the detainee should be released or detained. It can also be argued that the detention without trial is not obviously unjust or unfair to criminals who have the power and means to intimidate witnesses from testifying against them in court. The other law is arguably not unjust to drug addicts since it is intended to treat and rehabilitate them so that they can become useful citizens. Civil libertarians cannot accept such laws, whatever their practical justifications, for the reason, inter alia, that such laws are open to abuse. There is a large degree of public acceptance of these laws in Singapore. However, confidence in the justice of such laws can only be maintained if the executive uses them, and is seen to do so, for the purposes contemplated by Parliament. The Attorney-General has a vital

440 (1996) Singapore Law Review function in the proper exercise of the particular power of detention under the Criminal Law (Temporary Provisions) Act as he has to consent to it.

D. Is the Singapore model efficient? In order to have a better understanding and appreciation of the role of the criminal process in Singapore and to consider whether its existing framework is efficient to achieve its designated purpose, it is useful to measure it against two models which have been postulated by an American academic, Professor Herbert Packer, in his article entitled Two Models of the Criminal Process.10 He refers to them as The Due Process Model and The Crime Control Model. What follows are very brief descriptions of the models. E. Crime control model The value system of the crime control model is:
... based on the proposition that the repression of criminal conduct is by far the most important function to be performed by the criminal process. The failure of law enforcement to bring criminal conduct under tight control is viewed as leading to the breakdown of public order, leading to law-abiding citizens being victimised by law-breakers.

If this happens, the citizens security of person and property is sharply diminished, and therefore, so is his liberty to function as a member of society. The criminal process is a positive guarantor of social freedom. Crime control demands a high rate of conviction, and places a high degree of trust in the efficiency of administrative procedures in discovering the facts of the crime. The successful conclusion of the crime control model is not conviction by the adjudicative act of the court but the plea of guilty. Cases must be processed quickly and with finality. The application of administrative expertise, primarily that of the police and the prosecutors, should result in an early
10

Supra, n 7.

441 10th Singapore Law Review Lecture determination of probable guilt or innocence. The probably innocent are screened out. The probably guilty are passed quickly through the remaining stages of the process. According to Packer, the key to the operation of the model is the presumption of guilt. This is not the opposite of the presumption of innocence which is the polestar of the due process model. Once a determination is made that there is enough evidence of guilt, which may take place as early as the time of arrest, he is to be treated as probably guilty.

17 Sing LR

If there

is

confidence

in

the

reliability

of

informal,

administrative fact-finding activities that take place in the early stages of the criminal process, the remaining stages can be relatively perfunctory.

The presumption of guilty is an expression of that confidence. It is basically a prediction of outcome. It is descriptive and factual. In contrast, the presumption of innocence is normative and legal. It means that until the accused is found guilty by a court, he is to be treated, for reasons which have nothing whatever to do with the probable outcome of the case, as if his guilt is an open question. It is a direction to the courts to ignore the amount of evidence amassed against the accused. The crime control model resembles an assembly line in its disposition of cases. Its credo is justice with efficiency. F. Due process model The due process model looks like an obstacle course. Its credo is preventing any innocent accused person from being subject to the process. Each of its successive stages is designed to present formidable impediments to carrying the accused further along in the criminal process.
Due process ... starts from the proposition that it is better to let ten guilty men go free than to convict a single innocent defendant.11

11

David Rose, The Collapse of Criminal Justice (1966).

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Its ideology is not the opposite of the crime control model as it also recognises the desirability of repressing crime. Its ideology is composed of a complex of ideas, but essentially it is to give primacy to the rights of the individual against those of community. It recognises the fact that people make mistakes. The police can and do abuse their powers and extract confessions by various means. Witnesses can be biased. Packer says that the aim of the due process is at least as much to protect the factually innocent as it is to protect the factually guilty. Civil liberties are emphasised and the protection of the integrity of the legal system is accorded high priority. So, all evidence obtained after the initial wrongful arrest must be rejected, even if true. Any breach of procedural rules is an abuse of process which terminates the prosecution. At the appeal stage, due process ideology says convictions, even of factually guilty people, must be quashed if there turns out to have been what English law terms a material irregularity. Proof of guilt must be beyond any doubt by the prosecution and all the essential elements of the offence must be proved according to that standard. A conviction can be reversed if the appellate court feels that it is not safe to convict him. In summary, under pure crime control the conviction rate would be near to 100 per cent as all accused persons not weeded out before trial are factually presumed to be guilty, until they prove the contrary. Pure due process, on the other hand, requires a system in which conviction demands proof beyond any doubt at all, rather than the less demanding test of proof beyond reasonable doubt. G. The Singapore modelPresent condition If we could start all over again to construct a criminal process model, we would begin by identifying its ultimate goal. As presently advised, that goal would be a high rate of conviction of the factually guilty accused. This would require the adoption of many of the features of Packers crime control model if the Singapore model is to maintain that degree of efficiency to achieve that goal. However, no civilised government can be

10th Singapore Law Review Lecture 443 totally insensitive to potential miscarriages of justice in the criminal process. Hence, the process must contain rules and procedures which can prevent and correct such injustices. Do we have such a model? What we have is a model incorporating many features from both of Packers models. It is difficult to say where there is a proper balancing of the two interests, or where the scale is tilted. Is it efficient? The answer is probably yes, if the following measures are used: (a) the percentage of cases which are disposed of through guilty pleas, (b) the insignificant number of cases where miscarriages of justice have been raised in public; and (c) the excellent state of our social condition in terms of crime and punishment. However, it is only within recent memory that Singapore has been become and seen to be a relatively crime-free country. This might not have been the case in the past. 17 Sing LR H. English common law influence In the recent past, the criminal process of has been unduly influenced by English common law principles applicable to a criminal trial in England, in particular jury trials. Our criminal process is derived from Indian statutes corresponding to 3 current enactments, the Evidence Act, the Criminal Procedure Code and the Penal Code. These Indian statutes consolidated the principles of evidence and procedure applicable in England, subject to certain some modifications which affected certain rights available to the accused at common law, eg the privilege against self-incrimination, the principle of proof beyond reasonable doubt, etc. The criminal law and procedure of England applied to Singapore by virtue of the Second Charter of Justice 1826. Act No 74 of 9 Geo IV was enacted in 1828 to improve the criminal procedure. In 1873 we jettisoned English criminal law in favour of Indian criminal law when the Penal Code was introduced into the Straits Settlements. The first Evidence Ordinance, based on Indian legislation, was enacted in 1893. In 1900, a code of criminal procedure was enacted by Ordinance 21 of 1900 which did not come into force. It was repealed and re-enacted by Ordinance 10 of 1910 which did

444 Singapore Law Review (1996) come into force. The existing Code is a re-enactment of this Code as amended from time to time. The first important change came immediately after Singapore achieved self-government in 1959. The new government did not believe in the efficiency or efficacy of juries in civil and criminal trials. Nevertheless, it acted cautiously in retaining jury trials for capital offences. By 1969, the government became convinced that juries in Singapore were unable or reluctant to administer criminal justice according to law. Accordingly, the jury trial for capital cases was abolished and replaced with a two-judge court. The second important change came in 1960 when pre-trial voluntary confessions made by an accused to inspectors of police were made admissible.12 The so-called Judges Rules in the form of Schedule E was also introduced to govern police questioning of accused persons. Prior thereto, only confessions made before magistrates were admissible. The third development consisted of a group of amendments enacted in 1973 and 1976 which made admissible all statements made to or in the presence of any police officer of or above the rank of sergeant (1973) and which also allowed the courts to make adverse inferences against the accused if he (a) during pre-trial questioning, failed to state his defence, and (b) during the trial, failed to testify under oath after his defence is called. It is probable that this group of amendments became the most effective means of crime control in Singapore. The fourth significant development, surprisingly, came from the combined

12

The judicial definition of when a statement is voluntarily made is a wide one. In Mohd Ali Bin Burut & Ors v PP [1995] 2 AC 579, an appeal to the Privy Council from Brunei, the accused persons had given confessions to police officers. It was not in dispute that at the time the accused persons gave the confessions they were not manacled and hooded (the special procedure), but it was also not in dispute that a few days earlier they had been manacled and hooded. The Board held that this amounted to oppression as nothing was done by the police during the recording of the confessions to dispel the implied threat of further interrogation at which such special procedure would be applied to them. The Board accordingly declared that the confessions were not voluntary and quashed the convictions of the accused persons.

10th Singapore Law Review Lecture 445 13 effect of 3 Privy Council decisions, viz, Yuvaraj, Jayasena14 and culminating in Haw Tua Tau.15 These changes collectively had a substantial effect in improving crime control in Singapore. There were other statutory amendments which lightened the prosecutions burden in securing convictions, eg in 1976 when any requirement that a trial judge had to warn himself before convicting on the uncorroborated evidence of an accomplice was abrogated. These amendments impacted on isolated cases which, unlike the 1976 amendments, impacted on all suspects and accused persons. It is not possible to discuss here all these developments. A few are discussed below, starting with the Privy Council decisions because there are lessons to be learnt therefrom. 17 Sing LR I. The case of Yuvaraj In Yuvaraj, the issue was the standard of proof required to rebut the presumption in section 3 of the Prevention of Corruption Act 1961 (Malaya) that a public officer who receives a gratification is deemed to have received it corruptly unless the contrary is proved. The expressions proved,16 disproved17 and not proved18 have been statutorily defined since the Evidence Ordinance was applied to Malaya. Under section 105, the burden of proving the existence of circumstances bringing the case
13 14 15 16

[1970] AC 913. [1970] AC 618. [1981] 2 MLJ 49. Section 3(3) reads: A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists. Section 3(4) reads: A fact is said to be disproved when, after considering the matters before it, the court either believes that it does not exist or considers its non-existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it does not exist. Section 3(5) reads: A fact is said to be not proved when it is neither proved nor disproved.

17

18

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(1996) within any special exception or proviso contained in any law defining the offence is on him who relies on these circumstances, and the court shall presume the absence of such circumstances. The Federal Court referred this question to the Privy Council for consideration:
Whether in a prosecution under section 4(a) of the Prevention of Corruption Act, 1961, a presumption of corruption having been raised under section 14 of the said Act the burden of rebutting this presumption can be said to be discharged by a defence as being reasonable and probable or whether that burden can only be rebutted by proof that the defence is on such fact (or facts) the existence of which is so probable that a prudent man would act on the supposition that it exists. (Section 3 Evidence Ordinance.)

Singapore Law Review

The Privy Council did not think that there was any relevant difference in practical effect between the tests stated by the Federal Court. The Malayan and Indian authorities on the issue were conflicting and the English authorities were also not clear. In Wong Chooi,19 Azmi CJ said that the burden on the accused was only a slight one. Lord Diplock, delivering the Privy Councils advice, held that although the definition of proved did not specify the quantum of proof, common sense dictated that the degree of probability of the existence or non-existence of any fact must depend on the nature of the proceedings. If the finding of a fact results in a conviction, public policy demands that the degree of probability must be beyond reasonable doubt. If the finding of a fact results in an acquittal, there can be no grounds in public policy for requiring that an exceptional degree of certainty as excludes all reasonable doubt that the fact does not exist. In other words, the burden on the accused to rebut the presumption is on the balance of probability. Prior to this decision, local case law was to the effect that the burden was no more than an evidential burden.

19

[1967] 2 MLJ 180, 181.

17 Sing LR

10th Singapore Law Review Lecture J. The case of Jayasena

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In Jayasena, an appeal from Ceylon decided 3 months after Yuvaraj, the issue was whether, in a murder charge to which the right of self-defence was pleaded, the accused had to prove the defence on a balance of probability or on the balance of evidence. The appellant relied on English, Indian and Malayan authorities which had held that the accused had only to discharge the evidential burden, and not the persuasive burden. Lord Devlin, delivering the opinion of the Privy Council, held that the standard of proof was on a balance of probability and not on the balance of evidence because of the compelling language of sections 3 and 105 of the Evidence Ordinance. Lord Devlin held that the word proved in section 3 meant proof as defined and nothing less. Prior to this decision, the local courts had interpreted these sections to refer only to the evidential burden. K. Local reaction to statutory changes Thus, it would appear that the draftsman of the Indian Penal Code and the Indian Evidence Act had effected revolutionary changes to the burden of proof in the trial process with respect to codified common law offences without the local judges realising it. Why was the established principle of proof beyond reasonable doubt modified for the Indian criminal justice system? It may well be that this particular due process norm which is the golden thread of English criminal law was found unsuitable to a society that was not as developed as England then was, or that perhaps unlawful killings were rampant in India, as they probably were, and so had to be controlled by shifting the legal burden of proving justification on any accused who had killed somebody. Whatever the reasons, these provisions were also found suitable for application to the Straits Settlements. However, the local courts did not understand these provisions as having modified the common law. This state of affairs would have continued but for the perceptive realism of the Court of Criminal Appeal of Ceylon in Chandrasekera,20 which decision
20 See R v Chandrasekera (1942) 44 NLR 97.

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(1996) Singapore Law Review the Privy Council in Jayasena found irreproachable. In Yuvaraj, the law on the point was corrected only when a wrongly-framed question of law was referred to the Privy Council. Thus, Singapore had for more than 100 years a modified principle of proof which reduced the opportunities for killers literally to get away with murder, and also in the laws creating other offences, but it was understood and applied by the courts as if it were the pure principle of proof beyond reasonable doubt. If this analysis is correct, and if you take Haw Tua Tau21 into account as well, then the record of the local judiciary in relation to crime control was not inspiring at all. It could be said that the guilty accused and their counsel had the best of times, whilst the prosecutors, representing the public interest, had the worst of times. The past may be the past, but we should ask ourselves how this could have come about. I would like to suggest the combined effect of two probable causes. L. Structure of English law The first has to do with the structure of English law. The basic law of England, as of Singapore, is English common law. English legislation, like Singapore legislation, is drafted by the draftsman and enacted by Parliament on the foundation of the common law. In consequence, legislation is invariably interpreted by the judges as glosses on the common law because legislation is only necessary when the common law is deficient. For this reason, an established canon of construction is that statutes are not intended to repeal or modify the common law, unless it is expressed as such or a necessary implication can be read from it. One of the most fundamental principles in the criminal law is the principle of proof beyond reasonable doubt, which is always the burden of the prosecution to discharge. This is the legal or persuasive burden, which cannot be shifted to the
21 In Haw Tua Tau, supra, n 15, the Privy Council held that the prosecution
had only to prove a prima facie case at the conclusion of its case in order that the defence be called. Prior to that, the local courts required the prosecution to prove its case beyond a reasonable doubt before the defence could be called.

10th Singapore Law Review Lecture 449 accused. The accused need only to show a reasonable doubt that he is guilty. This is the evidential burden which the accused has to discharge. It is not to prove or disprove anything but to raise a reasonable doubt. It is a high standard of proof which is 22 described by Suffian J in Mat as follows: 17 Sing LR
The correct law for Magistrates to apply is as follows. If you accept the explanation given by or on behalf of the accused, you must of course acquit. But this does not entitle you to convict if you do not believe that explanation, for he is still entitled to an acquittal if it raises in your mind a reasonable doubt as to his guilt, as the onus of proving guilt lies throughout on the prosecution. If upon the whole evidence you are left in a real state of doubt, the prosecution has failed to satisfy the onus of proof which lies upon it.23

The second cause has to do with legal education and professional experience. The local courts did not pay much attention to the definition of proved, probably, on account of the common law mindset of the judges, all of whom were English trained. This can be seen from the many decisions on the law of principles of proof which did not even refer to the Evidence Act. They could not imagine that Sir James Stephens could have modified the principle of proof so radically as to shift the persuasive burden to the accused to prove anything in any offence. The influence of the judges common law mindset cannot be exaggerated. Generations of judges and lawyers in Singapore and Malaya
22 23

(1963) MLJ 263. Contrast this with Denning Js statement in Miller v Minister of Pensions [1974] 2 All ER 372 where he commented on what the standard beyond reasonable doubt meant at 373: It need not reach certainty, but it must carry a high degree of probability. Proof beyond a reasonable doubt does not mean proof beyond a shadow of a doubt. The law would fail to protect the community if it admitted fanciful possibilities to deflect the course of justice. If the evidence is so strong against a man as to leave only a remote possibility in his favour which can be dismissed with the sentence of course it is possible, but not in the least probable, the case is proved beyond reasonable doubt, but nothing short of that will suffice. [Emphasis added.]

Singapore Law Review (1996) have imbibed the traditions, ethos and values of the English judiciary and of the English Bar. Law was not taught locally until 1957. Even then, criminal law and procedure, as a law subject, was taught by lawyers from the same tradition. It is therefore not surprising that the Evidence Act and the Criminal Procedure Code were viewed as nothing more than codifications of common law principles. The influence of English due process thinking persists until today, in the judiciary, in the criminal bar and in the NUS Law School. This phenomenon was not confined to Singapore and Malaysia. G Peiris wrote in 1980 24 as follows:
So pervasive was the influence of an equivalent objection [that only the evidential burden should be assumed by an accused in regard to defences as lawful excuse and lawful authority], deeply rooted in traditions of the English common law, that, in the formative stage development of the case law in jurisdictions governed by the codes of evidence founded on the Indian Evidence Act, the courts of some South Asian jurisdictions showed themselves inclined to whittle down the clear effect of definitions contained in mandatory statutory provisions in order to make the codified system accord with the values and attitudes of the English common law, and, in particular, with the refusal of that system to impose on the accused the legal burden in respect of any defence other than insanity. The reasoning of these courts involved, necessarily, strained and tortuous construction of the language used in the applicable codes of evidence. The interpretation of codes based on the Indian Evidence Act in substantial conformity with the postulates of the English common law derives implicit support from some recent observations of Privy Council, the setting of the Malaysian law of evidence (in PP v Yuvaraj).

450

The attitude of the Sri Lankan courts, which have consistently declined to import into the law of Sri Lanka principles of English law incompatible with:

24

The Burden of Proof and Standards of Proof in Criminal Proceedings: A Comparative Study of English and a Codified Asian System (1980) 22 Mal LR 66, 105-106.

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the clear, definite and unequivocal language employed in a Sri Lankan enactment, presents a striking contrast. In keeping with the premise that, in their natural role of moulding and interpreting the law, the Sri Lankan courts must make allowance for the complete dimension of statute law in force in the jurisdiction without distorting it as a means of statutory provisions within the conceptual framework of law, the courts of Sri Lanka, have evolved a body of largely self-contained evidentiary law which, for the most part, is cohesive and virile.

M. The abolition of the jury trial The abolition of jury trial should have had a profound effect on the rules of procedure and evidence relevant to trial process, as most of the exclusionary rules of evidence were formulated for such trials. The accused had to be protected from the frailties of jurors in evaluating evidence. They could not be trusted to evaluate evidence objectively and they could not determine what weight should be given to prejudicial evidence. Hence probative evidence was excluded from their purview if the judge thought that its value was outweighed by its prejudicial effect. This concern is much less important in bench trials conducted by judges who have spent their entire professional careers in court and who have been conditioned to evaluate facts and arguments objectively. Moreover, unlike jurors, judges have to give reasons for their findings of fact. Egregious errors in fact evaluations and findings are generally detectable and can be corrected on appeal. But if you read the reported judgments of the courts in the last 30 years, you would have the impression that save for the absence of the jury, nothing else in the criminal process has changed. That is largely true. There seems to be little or no awareness that bench trials should not be subject to exclusionary rules devised for jury trials. Surprisingly, there is also little academic writing locally on this subject. The state prosecutors would also appear to have failed to take the necessary initiatives to argue for modification. The criminal bar cannot be faulted for

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keeping silent. In 1981 Lord Dip lock adverted to the change in Ong Ah Chuan25 when he said:
Observance of the rule [that the prosecution must prove its case beyond a reasonable doubt] does not call for the perpetuation in Singapore of technical rules of evidence and permitted modes of proof of facts precisely as they stood at the date of the commencement of the Constitution. These are largely a legacy of the role played by juries in the administration of criminal justice in England as it developed over the centuries. Some of them may be inappropriate to the conduct of criminal trials in Singapore ...

This passage was not addressed to bench trials in particular, and that perhaps explains why it has been all but forgotten. However, the passage is even more appropriate in the context of bench trials than in the context of determining what the fundamental rules of natural justice are. But change can now be seen, albeit tentatively, and in small steps. In Lee Yuan Kwang,26 in dealing with the issue as to whether a miscarriage of justice had occurred where the trial judge had read the impugned statement of one of the accused before the voir dire had been completed, the Chief Justice said:
Nayeb Shana (Shahana)27 was cited by counsel to support the contention that the trial judge had to decide on the question of voluntariness before proceeding with the impeachment proceedings. It must be noted that Nayeb Shanas case was made in the context of jury trials. The judge, whose sole province was to decided questions of law, would have had a duty to exclude inadmissible evidence from the consideration of the jury. It is less compelling to adhere to such rigid delineations in the present day context where jury trials have long since been abolished. The trial judge has the duty to decide on both the law and the facts. He is also expected to be able to exclude inadmissible or prejudicial evidence from consideration. In the prevailing climate of criminal practice of

25 26 27

Supra, n 5 at 71. [1995] 2 SLR 349, 363. (1934) 38 CWN 659.

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procedure, it may have been procedurally improper for the trial judge to have looked at the statements in their entirety in the course of the voir dire. Nevertheless, such procedures requiring that the trial judge be shielded from statements, or portions of statements, the voluntariness of which may be disputed, are relics from jury trials of days of yore. They hold no real significance in present-day trials where judges are equally competent to decide on disputes of fact as well as the law. Ultimately, the main question is whether, having heard the evidence, the trial judge had properly directed himself in finding that the statements had been voluntarily made. In the present case, the record and the grounds of decision indicated that he was always mindful of the importance of the issue of voluntariness of the statements. There was also no indication from our perusal of the record that the trial judge had allowed himself to be unduly prejudiced by the contents of the statements. We are satisfied that there was no material irregularity in the conduct of the impeachment proceedings which would occasion a failure of justice.

Now that the reality of a bench trial has been recognised, we should see more developments in this area either through judicial modification of jury related principles or legislation in areas where judges fear or refuse to tread. But a clear judicial trend has yet to be established. I will cite a few examples of the continuing influence of jury principles in bench trials. N. The trial within a trial In a jury trial, where the accused objects to any evidence which the prosecution wishes to adduce against him, usually a confession, a trial within a trial is held to determine its admissibility. However, until it is admitted in evidence, the jury is not allowed to know what the accused has said, as it could be prejudicial to the accused. Admissibility, being a question of law, is decided by the judge in the absence of the jury. Hence, the rule that evidence adduced in a trial within a trial is not relevant to the trial on the main issue as to whether the accused is guilty. In Lim Seng Chuan,28 the Singapore Court of Criminal
28

[1977] 1 MLJ 171.

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Appeal upheld this rule and reversed the conviction for murder of the accused which apparently was based solely on the evidence of a prosecution witness who had testified in a voir dire on a matter which was not relevant to the admissibility of the confession in question. The Court said:
It seems to us that fairness to the accused, which is a fundamental principle of the administration of justice, requires that a trial within a trial ought to be considered a separate or collateral proceeding. In the course of a trial within a trial, evidence may be given which would be inadmissible evidence on a charge against the accused but may be relevant to the issue to be decided at the trial within a trial. In such a situation it would be grossly unfair to the accused if the true principle is that evidence called at the trial within a trial is before the court for all purposes.

The reasoning set out in this passage should not apply in a bench trial where the judge has heard all the evidence. In that case, the evidence that was rejected by the court, although not relevant to admissibility, was highly relevant to the main issue. The above passage does not explain the unfairness of admitting it. The true reason is found in the next passage, which reads:
Conversely, in the course of a trial within a trial evidence may be given which may be relevant and admissible evidence on the charge against the accused but would not be relevant on the issue to be decided at the trial within a trial. In such a situation the accused or his counsel might well decline to challenge such evidence in the justifiable belief that it could not adversely affect the accused on the issue to be decided at the trial within a trial.

But, of course, if the true principle were otherwise, defence counsel would have no excuse for not cross-examining the witness. Treating the two trials as separate would certainly make for a tidier trial overall, but tidiness in this respect has nothing to do with the fairness of the criminal process, and in any case the same result can be achieved by better management of the issues at the trial. Numerous sub-principles have been laid down by the courts to determine the admissibility of such evidence, depending on

455 whether the statement is ruled admissible or otherwise: see Wong Kam-Ming.29 The complexities of the law in this area can be seen in Goh Joon Tong.30 in that case, two voir dires were held in respect of the statements of A and his co-accused B. The trial judge postponed his determination on the admissibility of As statement until he had concluded the voir dire on Bs statement, which A gave evidence. The trial judge then took into account As credibility in Bs voir dire and admitted As statement. The Court of Appeal held (a) that postponing such a decision to the conclusion of a voir dire should not be done, if a decision could be reached, but it was not an immutable rule that the ruling be made immediately at that point of time; and (b) that, applying Lim Seng Chuan, one voir dire should be insulated from another voir dire, and therefore evidence adduced in one was not admissible in the other. The Court went on to hold that the error of the trial judge had not prejudiced A as there was other evidence that his statement was voluntary. One cannot help but sympathise with the trial judge. He cited authorities which stated that a court is not to close its eyes to evidence relating to the voluntariness of a statement after it has been admitted in evidence. He made the following statement with which the Court of Appeal disagreed:
The next question is whether such evidence should be restricted to evidence supporting inadmissibility, and not evidence to the contrary. That should not be so. Justice must be administered equally for the defence as for the prosecution; it is not good enough to doff one blinker and wear the other. All evidence relevant to the issue, whether in favour of admission or exclusion, should be considered.

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The purpose of a trial within a trial should be reconsidered. Where the judge is the trier of law and of fact, treating a voir dire as a separate trial serves no purpose. In England, the Divisional Court (Lord Lane and Woolf JJ) decided in F (An Infant) v Chief Constable of Kent31 that incidental matters
29 30 31

[1980] AC 247. [1995] 3 SLR 305. [1982] Crim LR 682.

(1996) Singapore Law Review should be decided as separate issues and not as trials within trials; and consequently there was no need for evidence to be repeated after the issue of admissibility had been determined. In reality, a judge does not need to read an impugned statement to know it is adverse to the accused.32 As regards the evidence adduced at the voir dire itself, there are practical difficulties in excluding the evidence, if it is relevant to the main issue. Firstly, the judge has heard the evidence. Secondly, what the accused says in the trial within a trial may be most relevant to the issue of his credibility or even guilt in the main trial. He may give conflicting testimony on the same issue. Indeed, he may even have lied to render his confession inadmissible. Thirdly, it requires the prosecution to cross-examine the accused again on the same issues if they are relevant. We need to establish a set of coherent principles which conform to the realities of a bench trial which the Chief Justice has recognised. It would increase the efficiency of the criminal process if evidence adduced at the trial of a collateral issue a trial is admissible in the trial of the main issue.
456

N. Evidence of disposition and similar fact In a jury trial relevant evidence may be withdrawn from the jury if the judge considers that its prejudicial effect outweighs its probative value. There are a number of situations where this principle is applicable. This principle should have little or no relevance in bench trials as the judge can simply give whatever weight is appropriate to the evidence. There is no need for a judge to go through the formal process of declaring the evidence inadmissible. But our courts continue to deal with such evidence 33 in this fashion. For example, in Tan Chee Kieng, the trial judge allowed the prosecution to go into the record of the accuseds admission of previous drug transactions unconnected
32

See however the unique case of PP v Zeng Guoyuan, MAC 2699/96 where the unrepresented accused, an acupuncturist, inexplicably challenged the voluntariness of his statements to the police even though they were not adverse to him. [1994] 2 SLR 834.

33

457 with the offence in the trial. He made it clear in his judgment that he had not taken the said admission into account in deciding whether or not the charge had been proved. He could simply have stated that evidence of the previous transactions had insufficient probative value to corroborate the other evidence. The Court of Appeal spoke in terms of admissibility when it said:
... the evidence of general disposition occasioned no injustice. It should be remembered that, unlike a trial with a jury, a judge trying a case without a jury is unlikely to be influenced by prejudicial evidence which for one reason or another had been admitted, especially when, as here, the judge cautioned himself against himself being influenced by it.

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In Siu Yuk-Shing,34 the accused was charged with being a member of the 14K triad society. Evidence was led that a triad altar and other related triad articles were found in the accuseds premises. It was suggested to the prosecution witnesses that these were commonplace items and not indicative of triad activities. In rebuttal, the prosecution was allowed to adduce evidence to prove that the accused had been convicted of being a member of the 14K triad society. He was convicted. The Hong Kong Court of Appeal held that evidence of the previous conviction was not admissible. On appeal, the Privy Council accepted that evidence of propensity was not generally admissible, but held that evidence which is logically probative of the offence charged is not rendered inadmissible merely because it discloses the commission of another offence. There, the knowledge of the accused as to the purpose of the articles was relevant. The Privy Council said:
It is not without significance that this was a trial by judge alone. If the judge had been sitting with a jury he would have had to weigh carefully the probative value of such a previous conviction against the prejudice to the accused that would likely to arise in the minds of the jury. The risk of such prejudice overbearing the probative value of evidence is of infinitely less significance when a case is tried by a judge
34

[1989] 2 HKLR 97.

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alone. The judge must of course guard against any such result but his whole background and training have fitted him to do so. In a trial by a judge alone the exercise of excluding the evidence on grounds of prejudice becomes somewhat unreal when it is remembered that the judge must be informed of the nature of the evidence in order to rule upon whether or not it is admissible. If the judge having ruled it inadmissible is to be trusted to put the evidence out of his mind he can surely be trusted to give it only its probative, rather than its prejudicial, weight if he rules that is admissible. The trial judge in the present case showed an entirely correct approach to this aspect of the case when he said: The evidence of previous conviction will have prejudicial effect but as I am sitting as both judge of fact and of law I can see it will be minimal compared with its possible effect on a jury.

Recently, in Tan Meng Jee,35 the Court of Appeal had to consider the principles applicable to the admission of similar fact evidence. The Court, having examined the leading authorities beginning with Makin36 and up to Boardman,37 including local decisions, rejected the categorisation approach of Makin and approved the balancing test laid down in Boardman. A simpler approach would be for the court to deal with such evidence on the basis of its reliability alone, ie, the weight to be given to it, instead of reasoning along the traditional basis of admissibiliry and weight. P. Confession of co-accused and the hearsay rule The Court of Appeals decision in Chin Seow Noi3 8 continues to cause much concern to the criminal bar and to academic lawyers,
35 36 37 38

[1996] 2 SLR 422. [1894] AC 57. [1975] AC 421. [1994] 1 SLR 135 where the Court of Appeal held that by virtue of section 30 of the Evidence Act, the confession of a co-accused implicating an accused in the commission of the offence is, in joint trial for the same offence, admissible against the accused as substantive evidence, and not

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notwithstanding the Courts confidence in the professionalism of trial judges in evaluating the probative value of the confession of a co-accused implicating the accused. The decision was a bold departure from established authorities in admitting a special kind of hearsay evidence which, the Court declared, could be sufficiently cogent, by itself, to convict the accused in an appropriate case. But to date, judicial caution has not permitted such a confession to be so used in a capital case. The reliability of such a confession must of course depend on its nature and the circumstances in which it was made. If the co-accused has voluntarily confessed to a capital offence for which he has not been given immunity from prosecution, there should be no reason to doubt his statement implicating the accused, unless there is reason to believe that the statement was not true. The reliability of such a confession can be also gauged by the conduct of the accused. Any risk of injustice can be reduced by requiring the co-accused to make his defence first. If he testifies, he is subject to cross-examination by the accused. If he does not, there would be no reason why the accused should not testify, if he is innocent. No doubt his right to remain silent is affected, but no innocent accused should want to exercise this right in the circumstances. Any judge who is conscious and therefore concerned that Chin Seow Noi may easily result in a miscarriage of justice because his evaluation of the reliability of the confession of the coaccused may be faulty will no doubt decline to call for the defence or to convict even if the accused keeps silent. But the way is open to him to require the presence of some other corroborative evidence to support the co-accuseds confession implicating the accused. Such corroborative evidence need not be of a degree that, in itself, is sufficient to convict the accused. That would be applying the previous law. But if the two, in combination and if unrebutted, would warrant the conviction of

merely as a piece of evidence to be taken into consideration with all the other evidence. The Court declined to follow a long line of authorities based on the Privy Council decision in Bhuboni Sahu v Emperor AIR 1949 PC 257.

460

(1996) the accused, then the defence may legitimately be called. The case of Ramachandran39 is relevant to this discussion. Ramachandran (R) and Krishnan (K) were convicted of murder committed with a common intention. The evidence proved against R was as follows: Rs shoe imprint was found at the scene of crime; four imitation precious stones which were part of the 30 stones missing from the scene of crime were recovered from him; the confession of K, the co-accused was as follows:
I [Krishnan] admitted that Ramachandran and I committed the murder. I am the one who knocked the door. Both of us went in, Ramachandran kicked the deceased and held both his hands. I then stabbed the deceased.

Singapore Law Review

The Court of Appeal allowed the appeal of R on the ground that he was convicted solely on the basis of Ks confession. This case was decided just before Chin Seow Noi. The shoe imprint of R and his possession of the stolen articles, when considered in the light of Ks confession, were logically probative of his engagement in an enterprise in which the victim was murdered. Chin Seow Noi would not have caused any injustice in this type of case. It is probably in the subject of hearsay evidence that the biggest scope exists for the refinement of jury related principles. In Kearley,40 the police arrested the accused and found drugs in his house but not in such quantities as to raise the irresistible inference that the accused was a dealer. While the police were searching the accuseds house, 11 telephone calls were made to the accuseds home and answered by the police wherein the callers were asking to be supplied with drugs. A majority of the House of Lords held that these 11 telephone calls were inadmissible as hearsay and that the policeman who answered these calls were not allowed to give evidence of them. Lord Browne-Wilkinson dissented and took the view that the evidence of the phone calls were firstly relevant, and secondly that the
39 40

[1993] 2 SLR 671. [1992] AC 228.

461 phone calls were not hearsay since they were used not to prove the truth of what was said but rather only to explain the callers purpose in making the calls. His Lordship noted at p 287 that:
... there may well be a good case for the legislature to review the hearsay rule in criminal law. In cases such as the present it hampers effective prosecution by excluding evidence which your Lordships all agree is highly probative, and since it comes from the unprompted actions of the callers, is very creditworthy. ... A reform of the operation of the hearsay rule in criminal cases is long overdue.

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The Australian courts have rejected Kearley. In Abrahamson,41 the South Australian Supreme Court held that evidence of telephone calls making inquiries to purchase drugs are admissible and relevant as tending to prove the existence of a business or activity of selling drugs, although it cannot be used to prove the truth of any statements made by the callers. In the context of drug offences in Singapore, we are not troubled by Kearley because the legislature has considered it more effective to deal with this kind of evidential problem by using rebuttable presumptions of trafficking, but the specific problems arising from the rules against all hearsay evidence remain in other areas of the law. A non-jury trial does not demand that all the exclusionary rules applicable in a jury trial should be jettisoned. Judges are also human beings and subject to the frailties of other human beings. But, they are less likely to be influenced by prejudicial evidence and are able to consciously guard against it. What we need is to subject every exclusionary rule to a critical analysis as to its possible effects in a non-jury trial. For example, many accused persons who have been acquitted of sexual offences would certainly have been convicted if their previous criminal records (antecedents) had been introduced in evidence. As a result, many factually guilty accused persons have been able to avoid punishment because their antecedents were not made known to the courts. This may be an area of law where the academics can

41

[1994] 63 SASR 139.

(1996) Singapore Law Review devote their time and intellectual efforts in developing a coherent set of fair procedural and evidential rules appropriate to bench trials. The time is ripe for us to take a fresh look at the criminal process in the light of what is appropriate to our circumstances. There is a case for arguing that the fundamental tenet of the criminal justice system of Singapore should simply be that the factually guilty accused should suffer punishment according to law and that therefore the criminal process should primarily be directed to this end. The innocent accused will also have to be safeguarded, but the continuing use of exclusionary rules of evidence is not necessarily the only or the best means to achieve this goal. What is perhaps more important is the integrity of the people who operate the system, ie, the investigative and the prosecutorial agencies, and the ultimate supervisor of the criminal process, the judiciary. In other words, it is people who make a system fair and just, and not the reverse.
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PART II A. A Fair Trial In 1964, AL Goodhart wrote:

In our legal system, this idea is manifested in a form of adversarial trial conducted before an independent and unbiased tribunal according to procedural and evidential rules primarily designed to ensure as far as possible than an innocent accused will not be convicted. In Winston Brown, Steyn LJ (as he then was) said:
That everybody who comes before our courts is entitled to a fair trial is axiomatic.43

42 43

Fair Trial and Contempt of Court (1964) 1 NYLJ 1. [1995] 1 Crim App R 191, 198.

463 In Haw Tua Tau, counsel for the appellant argued that the concept of fair trial included the following features:
44

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It is fundamental that a person charged with a criminal offence shall have a fair trial. It is settled that that is best secured by adherence to certain basic rights and privileges which include (1) that a defendant shall be presumed innocent until proven guilty according to law; (2) that the burden of proving his guilt shall throughout be on the prosecution; (3) that the defendant shall be under no obligation to give evidence; and (4) that the evidence adduced must prove guilt beyond a reasonable doubt.

Outside the trial itself, the criminal process has incorporated many procedural and evidential rules to ensure that only untainted, direct and probative evidence obtained independently of the accuseds co-operation is admissible in evidence. Thus, section 121 of the Code allows a suspect or accused to refuse to answer any question put to him by the police if it may incriminate him, and hearsay evidence, however reliable, is not admissible. The mere deprivation of any relevant evidence to the accused by the prosecution may be treated as having denied the accused a fair trial and the prosecution may be stayed. In Haw Tua Tau, Lord Diplock also explained the scope of section 180 of the Code in terms of unfairness to the accused:
For reasons that are inherent in the adversarial character of criminal trials under the common law system, it does not place upon the court a positive obligation to make up its mind at that stage of the proceedings whether the evidence adduced by the prosecution has by then satisfied it beyond reasonable doubt that the accused is guilty. Indeed it would run counter to the concept of what is a fair trial under that system to require the court to do so.45

44 45

[1982] AC 136, 141 In State v Van den Berg [1995] 2 LRC 619, OLinn J, in the context of Namibia, said at page 631: A perception exists in some circles that the fundamental right to a fair trial focuses exclusively on the rights and privileges of accused persons. These rights, however, must be interpreted and given effect to in the context of the rights and interests of the law-abiding persons in

(1996) Singapore Law Review In contrast, it is rather unusual to find a judicial statement that the prosecution is also entitled to a fair trial, even though the elements of fairness to the prosecution may be difficult to identify. In R v Derby Crown Court, Ex Parte Brooks, Sir Roger Omrod said:
464
The ultimate objective of this discretionary power (to stop a prosecution for abuse of process of the court) is to ensure that there should be a fair trial according to law, which involves fairness to both the defendant and the prosecution. [Emphasis added.]
46

If, as Lord Diplock says, the making of premature findings of fact against an accused is unfair to the accused, the making of premature findings of fact against the prosecution must equally be unfair to the prosecution. Any rule or practice which permits the court to do this is equally unfair. The trial is accepted as a civilised means of determining the guilt or otherwise of the accused. Premature findings of facts leading to an acquittal will shut out the prosecutions case unjustifiably.47 In any prosecution, the integrity of the criminal process itself is on trial as much as the accused is on trial. Prosecutors do not prosecute any person for any offence unless there is sufficient evidence to show that he has committed that offence. Accordingly, assuming the integrity of the process, a trial procedure which allows the judge to acquit summarily an

society and particularly the persons who are victims of crime, many of whom may be unable to protect themselves or their interests because they are dead or otherwise incapacitated in the course of crimes committed against them.
46 47

(1984) 80 CR APP R 164, 168-169. Lord Parkers Practice Note [1962] 1 All ER 448 supports the idea of a fair trial for the prosecution. The Note reads: Those of us who sit in the Divisional Court have the distinct impression that justices today are being persuaded all too often to uphold a submission of no case. In the result, this court has had on many occasions to send the case back to the justices for the hearing to be continued with inevitable delay and increased expenditure.

465 accused person, especially on a serious charge, on a premature evaluation of the evidence, is not in the public interest.

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B. Haw Tua TauThe continuing debate It is in the context of a fair trial to the prosecution that one can appreciate the divergence between Singapore law and Malaysian law on the test which a court should apply in deciding whether a case is made out against the accused at the intermediate stage of the trial, ie, at the end of the prosecutions case. Haw Tua Tau has decided that the prima facie test is applicable. The courts in Singapore and in Brunei have accepted Haw Tua Tau. The Malaysian courts initially accepted Haw Tua Tau, but changed direction in Khoo Hi Chiang48 when the Supreme Court decided that the defence should not be called unless, at the end of its case, the prosecution had proved its case beyond a reasonable doubt. This test is referred to as the maximum evaluation test in contrast to the prima facie test which is called the minimum evaluation test. The Court of Appeal declined to follow Khoo Hi Chiang, but in Arulpragasan49 the Federal Court (by a majority of 4:3) held in favour of the maximum evaluation test. As the law in Singapore is settled, it may be thought pointless to discuss the subject further. However, there is some merit in doing so, if only because the Malaysian approach is seen by many as giving greater protection, and therefore fairer to the accused. The Malaysian approach is not bereft of judicial and academic support, for somewhat different reasons. Academic opinion in Singapore appears to supports it,50 which prima facie may reinforce its soundness in law. However, it is my thesis that the Singapore approach is not only correct in law (ie, as a matter of statutory interpretation) but also upholds the principle that an

48 49 50

[1994] 1 MLJ 265. SC Cr A No 05-237-92. See Tan Yock Lin, Criminal Procedure (1996 Ed) where the author comments at p 705 that the reasons for [Khoo Hi Chiang] rejecting Haw Tua Taus case are sound and also Michael Hor, The Privilege Against Self-Incrimination and Fairness to the Accused [1993] SJLS 35.

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innocent person accused of an offence (innocent accused) should not be subject to a higher risk of conviction than a guilty accused. It is consistent with the idea of a fair trial for the accused as well as for the prosecution and it rests on a stronger foundation than what is apparent in Lord Diplocks reasoning in Haw Tua Tau. What follows is an outline of a conceptual and a statutory analysis in support of the prima facie test. In Haw Tua Tau, Lord Diplock referred to the analogy of a jury trial to show the separate functions of law finding and fact finding in an adversarial trial conducted before a judge who is vested with both functions. He said:
... the same principle [as in a jury trial] applies to criminal trials where the combined roles of decider of law and decider of fact are vested in a single judge (or in two judges trying capital cases). At the conclusion of the prosecutions case what has to be decided remains a question of law only. As decider of law, the judge must consider whether there is some evidence (not inherently incredible) which, if he were to accept it as accurate, would establish each essential element in the alleged offence. If such evidence as respects any of those essential elements is lacking, then, and then only, is he justified in finding that no case against the accused has been made out which if unrebutted would warrant his conviction, within the meaning of section 188(1). Where he has not so found, he must call upon the accused to enter upon his defence, and as decider of fact must keep an open mind as to the accuracy of any of the prosecutions witnesses until the defence has tendered such evidence, if any, by the accused or other witnesses as it may want to call and counsel on both sides have addressed to the judge such arguments and comments on the evidence as they may wish to advance.

The Singapore courts and the Malaysian courts disagree on the interpretation of the corresponding provisions, and in particular, the effect of the words if unrebutted would warrant a conviction. Haw Tua Tau says that these words mean that if the defence fails to adduce any rebuttable evidence, it could lead to his conviction. Khoo Hi Chiang and Arulpragasan say that these words demand a conviction. However, the disagreement on interpretation can be disregarded for the purpose of the present

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discussion, even though it is this that is the ostensible reason for the divergence. What is relevant is which result is more acceptable to the criminal process. In Arulpragasan, the following points have been made in relation to bench trials as contrasted with jury trials:
(a) that it is highly artificial for the judge in a bench trial, to suspend judgment on the evidence (where he cannot believe it), to call for the defence on the assumption that the evidence is true; and then not to believe it if the accused keeps silent (where the judge decides that it is unsafe to convict); (b) that Haw Tua Tau forbids the judge in a bench trial at the intermediate stage of the trial to determine whether the prosecution witnesses are telling the truth; this is contrary to the law as stated in Archbold;51 (c) that the maximum evaluation test is not unfair to the accused, but the prima facie test is unfair to the accused because it allows the prosecution to repair any deficiencies in its case and to subject the accused to self-incrimination through cross-examination; the greater the burden on the prosecution to establish a case, the greater the protection offered to the accused;

51

Archbolds Criminal Pleading, Evidence and Practice (1993 Ed) at 4-307. The relevant passage in Archbolds reads: In their summary jurisdiction magistrates are judges both of facts and law. It is therefore submitted that even where at the close of the prosecution case, or later, there is some evidence which, if accepted, would entitle a reasonable tribunal to convict, they nevertheless have the same right as a jury to acquit if they do not accept the evidence, whether because it is conflicting, or has been contradicted or for any other reason. It is submitted that the practice note reported in [1962] 1 ALL E.R. 448 must be read in this light. In any event, there appears to be no authority as to the issue of practice directions in criminal matters relating to questions of law as opposed to practice.

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Singapore Law Review (1996) (d) that jury trials in Malaysia are regulated under a provision, viz, section 214(i)52 of the Code (M) which is differently worded from section 19053 applicable to bench trials, indicating that legislature has provided different tests for jury trials and summary trials.

It is arguable that any incongruity in a judge having to perform mental gymnastics in applying the prima facie test to a case which results in an acquittal if the accused keeps silent applies equally in a case where the maximum evaluation test is applied and the judge, after hearing the defence, backtracks and decides that the case has not been proved beyond a reasonable doubt. So this is not a valid argument in favour of one or other of the two tests. Indeed, it is arguable that the prima facie test is simpler to apply because it merely requires the judge to suspend his judgment on the evidence (which judges often do with respect to other factual issues) whereas the maximum evaluation test may require the judge to make two opposite judgments at different times on the same facts. The second point misunderstands the judgment of Lord Diplock in Haw Tua Tau. He did not decide that the judge must not perform any evaluation exercise in all cases. At page 150, he said:
For reasons that are inherent in the adversarial character of criminal trials under the common law system, it does not place upon the a positive obligation to make up its mind at that stage of the proceedings whether the evidence adduced by the prosecution has by then already satisfied it beyond reasonable doubt that the accused is guilty ... [Emphasis added.]

Similarly at page 155, Lord Diplock also said:

Section 214(i) reads: When the case for the prosecution is concluded the Court, if it considers that there is no evidence that the accused committed the offence, shall direct the jury to return a verdict of not guilty. Section 190 reads: When the case for the prosecution is concluded the Court, if it finds that no case against the accused had been made out which if unrebutted would warrant his conviction shall record an order of acquittal, or, if it does not so find, shall call on the accused to enter on his defence.

53

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If this be so [ie if the trial judge had made his evaluation on the wrong test] the only effect can be that the judges applied to the prosecutions evidence a more rigorous test of credibility than they need have done before deciding to call on Haw Tua Tau to give evidence.

Lord Diplock was not unfamiliar with bench trials. Summary trials before magistrates have existed for a long time in England. But, he insisted that the judge in a bench trial must consciously separate his dual functions because the issue whether the defence should be called is a question of law, and to answer a question of law, you must assume the facts so long as there is some evidence on which those facts can be justified.5 4 In Yeo Tse Soon,55 the Court of Appeal of Brunei accepted that the principle that issues of fact should not be decided (even provisionally) until the whole of the evidence in the case has been heard is fundamental to the adversarial procedure. The Court suggested that serious consequences would follow if the principle is abandoned, even in a bench trial. The principle that the judge should not perform his dual functions at the same time at the intermediate stage of the trial makes good practical sense. The question of usurping the function of the jury does not arise, that being logically impossible in a bench trial. The crucial question is whether it is fair for him to make a finding of fact at that stage. The answer is generally No, because it would have to be based on, inter alia, his impressions on the credibility of the witnesses. A judge may not find the prosecutions witnesses convincing at that stage of the process, but that does not mean that the witnesses are not telling the truth. What the judge believes as not credible may turn out to be true, in the light of other evidence. This accords with human experienced.56 The point is not that he should find on
54

Lord Diplock did not refer to the standard of proof in his judgment, because it was not necessary to. But it can be conceded that if the judge had to find the facts at that intermediate stage, the standard of proof would necessarily have been beyond a reasonable doubt. [1994] 2 LRC 610. As was said by Hamlet (Hamlet Act 1, Scene 5, 166-7):

55 56

470 Singapore Law Review (1996) the facts at that stage because he can do it, or even do it easily, but because he has not heard all the evidence. Convenience is not sufficient. In Yeo Tse Soon, the Bruneian Court of Appeal dealt with this point in these words:
What constitutes a prima facie case in a criminal trial in Brunei is neither more nor less than the Code provides. What is required of a prosecutor if he is to surmount the hurdle of no case is that he must make out a case which if unrebutted would warrant a conviction. To read the words of the section if it finds that no case had been made out which if unrebutted would warrant a conviction as though they meant if it finds that no case been found beyond reasonable doubt which if unrebutted etc would be to eliminate from further scrutiny cases in which the evidence may be distinctly questionable in some respects but in which nevertheless the magistrate or judge is not yet prepared to say that he finds it so inherently incredible that the accused should not be called upon to answer to the charge. In short, to make out a case is not the same thing as to prove it beyond all reasonable doubt.57 [Emphasis added.]

A criminal trial should be an integrated trial. The fact that a judge who is vested with both functions is able to perform both of them at the same time at the intermediate stage of the trial is not a sufficient reason for exercising both functions at that stage. If it can be demonstrated that doing it will result in a fair trial, that would be a good reason for the approach. Arulpragasan relies on this justification: that the maximum evaluation test is fair to the accused as it gives him greater protection than the prima facie test. It gives him greater protection because

There are more things in heaven and earth, Horatio, Than are dreamt of in your philosophy. See also the account of a fantastic but true story recorded by Wigmore, and referred to by Sir Thomas Bingham MR (as he then was) in his lecture at University College London and reported in Current Legal Problems (1985) at 13.
57

At pp 621622.

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otherwise the accused would be subjected to the risk of selfincrimination. The validity of this proposition is now examined. C. Conceptual considerationsFairness and justice We must consider what the proposition actually entails. It is difficult to rebut the proposition without denying the principle that the accused is entitled to a fair trial. However, it is here contended that this statement is misleading and should not be accepted at face value because its underlying assumption is that every accused is innocent of the charge he faces. It is based on the well known, but still misunderstood, statement that a person is presumed to be innocent until proven guilty. This assumption is contrary to reality. An accused person is charged for an offence only if there is sufficient provable and admissible evidence against him on which there is a reasonable prospect of securing a conviction. The reality is that many, if not most, accused persons are factually guilty, ie, they have done what the charges allege they have done. The truth of this proposition in Singapore, as in England, is demonstrated by the fact most accused persons plead guilty to the offences for which they have been charged. A large number of factually guilty accused would no doubt claim trial in the hope of being acquitted. They are not guilty only because they have not yet been convicted according to law. On the other hand, the factually innocent accused would want to defend themselves because they are innocent and do not wish to be convicted for offences they have not committed. The presumption of innocence is regarded as being of fundamental importance in the criminal law. But this is not a presumption that an accused person is factually innocent. It is a presumption that he is legally innocent, ie innocent until proven guilty. The presumption expresses nothing more than that in a criminal trial, the prosecution must prove its case against the accused beyond reasonable doubt. Guilt in the criminal process is a legal concept. Innocence is a fact. An acquitted accused may not be factually innocent. The reason is that the adversarial trial is not designed to prove factual innocence but legal guilt. If we bear this distinction in mind, and it is a real distinction, then it

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can be demonstrated that the claim that the application of the maximum evaluation test gives better protection to the accused is true only if he is factually guilty but not if he is factually innocent. This proposition can be demonstrated by taking the case of a factually guilty accused and a factually innocent accused and applying the prima facie test and the beyond reasonable doubt test to each of them. 1. Prima facie test (a) If the accused is factually guilty and his defence is called, a conviction consequent upon his failure to testify or consequent upon his having testified, does him no injustice. No injustice is done to him even if he has incriminated himself, as he is factually guilty. On the other hand, because he is factually guilty, he may choose not to testify in the hope that he can persuade the judge that the charge has not been proved beyond reasonable doubt. If the court acquits him in that situation, a miscarriage of justice has occurred in that a factually guilty accused has been found not legally guilty. Likewise a miscarriage of justice has occurred, if he is acquitted after he has given evidence. (b) If the accused is factually innocent and his defence is called, he runs the risk of a conviction if he refuses to testify. But there is no reason for him not to testify if he is factually innocent. No question of self-incrimination can or should arise as he is factually innocent. At the very least, a factually innocent accused should have no difficulty in showing a reasonable doubt. 2. Beyond reasonable doubt test (a) If the accused is factually guilty and his defence is called, a conviction must follow if he refuses to testify. But if he is factually guilty, he would want to testify anyway in the hope that he might be able to create a reasonable doubt. If he is convicted, no injustice is done to him in either situation. If he is acquitted, there would be a miscarriage of justice.

473 10th Singapore Law Review Lecture (b) If the accused is factually innocent and his defence is called, he has no choice but to enter his defence if he seeks an acquittal. This is a case where an innocent accused is being compelled to defend himself, but not with the same degree of ease if the prima facie test is applied. The reason is that the judge has already decided that a case beyond a reasonable doubt has been proved against him before his defence was called.

17 Sing LR

The above analysis shows that the maximum evaluation test provides greater protection to the factually guilty accused than it does to the factually innocent accused. On the other hand, the prima facie test gives greater protection to the factually innocent accused that it does to the factually guilty accused. It is impossible to justify a rule which favours the guilty accused against the innocent accused. Accordingly, the prima facie test should be preferred. The just administration of the criminal law prefers that the guilty should be convicted and the innocent should be acquitted. Precisely for this reason, the right of silence should not be allowed to be used as a justification for the maximum valuation test. There is no virtue in preventing a guilty accused from incriminating himself in cross-examination. An innocent accused would not stand in that position. In Zanetti v Hill,58 Kitto J observed:
The ultimate question of fact must be decided on the whole of the evidence; and on a charge under section 65(1) there is no more reason than there is in any other case why a weakness in the prosecutions case may not be eked out by something in the case for the defence, or why a prima facie inference which by itself would not be strong enough to exclude a reasonable doubt may not hardened into satisfaction beyond reasonable doubt by the failure of the defendant to provide satisfactory evidence in answer to it when he is in a position to do so.

58

[1962] 108 CLR 433 at 442.

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It is now argued that as a matter of statutory interpretation, section 180(f) of the Code can only refer to the prima facie test. The meaning of paragraph (f) can be readily appreciated when read together with paragraphs (g) and (h). They read:
180(f) If upon taking all the evidence referred to in paragraph (c) and paragraph (d), (if any) the court finds that no case against the accused has been made out which, if unrebutted, would warrant his conviction, the court shall record an order of acquittal; (g) Nothing in paragraph (f) shall be deemed to prevent the court from acquitting the accused at any previous stage of the case if, for reasons to be recorded by the court, it considers the charge to be groundless; (h) If when such evidence has been taken the court is of opinion that there are grounds for presuming that the accused has committed the offence charged or some other offence which that court is competent to try and which in its opinion it ought to try, it shall consider the charge recorded against the accused and decide whether it is sufficient and, if necessary, shall amend it.

The word groundless in section 180(g) obviously refers to a case where at the end of the prosecutions case there is no evidence, if uncontradicted, on which a reasonable judge could convict. The words grounds for presuming in section 180(h) are apt to refer to Lord Diplocks hypothetical question of law. The court is directed to satisfy itself that there are grounds for presuming that an offence has been committed. Section 180(g) and (h) were not examined in Haw Tua Tau because it was concerned with the corresponding provision applicable to High Court trials, section 188, which does not have provisions corresponding to section 180(g) and (h). But, the principles should be the same for Subordinate Court trials as for High Court trials.

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The Malaysian Code has provisions which correspond to section 180(f) to (h) of the Code.59 They provide another argument that the rulings in Khoo Hi Chiang and Arulpragasan are contrary to the express wording of section 180(f) to (h). It is also arguable that the maximum evaluation test is also contrary the provisions in the Malaysian Code applicable to summary trials and to High Court trials, with assessors or jury or without a jury. When Khoo Hi Chiang was decided, there were in existence 4 forms of trials under the Malaysian Code: (1) summary or bench trials under section 173; (2) High Court trials without assessors under sections 178183; (3) High Court trials with assessors under sections 189199 and (4) jury trials under sections 200235. In each of these modes of trial, the accused may elect not to give evidence after his defence is called. In other words, the Code protects his right of silence.60 Now, if the accused is called upon to enter his defence on the application of the maximum evaluation test, his statutory right of silence is effectively destroyed as he is compelled to testify if he wishes to avoid a conviction. Thus, paradoxically, any attempt to give the accused greater protection may actually result in depriving him of another form of protection in the criminal process. Whichever is more beneficial to the accused need not be considered. What follows from this is that Arulpragasan has interpreted section 190 of the Malaysian Code to conflict with another provision therein which protects the accuseds right of silence. There are only two ways to resolve such a conflict: to treat one provision as being the dominant provision or to harmonise them. It is an accepted principle of statutory interpretation that the court should not interpret one statutory principle to contradict another but to harmonise them. The argument that the differences in the wordings of the provisions relating to jury and non-jury trials in the Malaysian Code show that different principles of trial are applicable cannot

59 60

Sections 188(f) to (h). This right is found in ss 174(ii), 181(i), 191 and 215 respectively.

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be demonstrated by that circumstance alone. What should be asked are two basic questions:
(1) Why would the legislature make a distinction between a trial with assessors and a trial with jury? (2) Why would the legislature give more protection to the accused when tried by a judge with assessors but less protection when tried by jury?

There does not appear to be any rational policy reasons to justify the distinction. If anything, a jury trial is supposedly to provide better protection for the innocent accused. E. The maximum evaluation testConstitutional? The maximum evaluation test also raises constitutional questions under the Malaysian Constitution which have not been argued in any of the Malaysian cases. There are two issues. The first is that raised in Haw Tua Tau itself under the corresponding Article 9(1) of the Singapore Constitutional.6 1 It will be recalled that counsel for Haw argued that the Court of Criminal Appeals decision in Ong Kiang Kek, in so far as it applied the maximum evaluation test, had the effect of compelling the accused to testify and therefore infringed Article 9(1) of the Constitution which protected the privilege against self-incrimination as a fundamental rule of natural justice. To avoid this issue, the Public Prosecutor conceded that Ong Kiang Kek was wrongly decided, if it decided that the prosecutions case has to be proved beyond a reasonable doubt at the intermediate stage. But, the Public Prosecutor further contended that section 188 of the Code only required a prima facie case to be made out and that section 195 thereof did not compel the accused to give evidence. The Privy Council agreed, and held that section 188 read with section 195 did not create a genuine compulsion but merely an inducement to the defendant to submit himself to crossexamination. The constitutional point was left undecided.

61

The corresponding Article in the Malaysian Constitution is Art 5(1).

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The right of silence is the privilege against self-incrimination. It cannot be doubted that the maximum evaluation test has the effect of compelling the accused to testify, thus destroying his right of silence. It would be interesting to know how this question would be answered by the Malaysian courts. The second constitutional question relates to the equal protection of the law. An accused person in Malaysia is subject to different principles of trial, depending on whether it is a bench trial or a jury trial.62 If there is no rational basis for the distinction, it raises a very complex constitutional issue: Which test is unconstitutional? This conundrum would not arise if the prima facie test is adopted. Haw Tua Tau makes good sense and accords with common experience. The prima facie test also gives greater protection to the innocent accused more than to the guilty accused. The public is entitled to have a criminal justice system which makes it less difficult for the accused to be acquitted. The maximum evaluation test, on the other hand, requires the judge to make findings of fact (a) finally, with respect to the prosecution but (b) provisionally, with respect to the accused. This is a denial of a fair trial, in varying degrees, to both the accused and the prosecution. In Haw Tua Tau, counsel for Haw stated the unfairness to the accused in these words:
The unfairness [to the accused] stems from a determination being reached before all the evidence has been heard, from the conviction of the defendant before he has been heard and from the imposition of the burden to establish innocence.63

The unfairness to the prosecution is that it may result in the accused being acquitted upon a premature evaluation of the prosecutions case. This would be a miscarriage of justice. A criminal process which allows guilty persons to be acquitted at this stage of the proceedings has serious consequences for the
62 63

Jury trials were abolished in Malaysia in 1994. But the argument holds true since Arulpragasan merely follows Khoo Hi Chiang. The argument of counsel for Low Hong Eng on appeal to the Privy Council which was heard together with Haw Tua Taus appeal at [1982] AC 136 at 142.

478 Singapore Law Review (1996) criminal justice system. We should not be burdened with such a criminal process.

PART III A. The Fundamental Rules of Natural Justice in the Criminal Justice System Article 9(1) of the Constitution declares that no person may be deprived of his life or liberty save in accordance with law. Subarticles (2), (3) and (4) spell out the specific rights of every person who has been arrested or charged for any offence. Every person who is detained and who claims that he has been unlawfully detained is entitled to be brought before the High Court or any judge thereof to determine whether his detention is lawful.64 Every person who is arrested shall be informed of the grounds of his arrest and be allowed to consult and be defended by counsel of his choice,65 and every person who is detained
64

This Article incorporates the right of an accused to habeas corpus under the UK Habeas Corpus Acts of 1679 and 1816. The procedure is provided for in O 54 of the Rules of Supreme Court for applications in civil matters and under s 327 CPC for applications in criminal matters: see Karmal Jit Singh v Minister for Home Affairs & Ors [1993] 1 SLR 24 and Chng Suan Tze v Minister of Home Affairs & Ors [1989] 1 MLJ 69. This right is the right to counsel who is available and not to be made available: Balasubramanian v PP [1996] 2 SLR 331. The right to consult counsel upon arrest is not the right to consult immediately but only within a reasonable time: Jasbir Singh v PP [1994] 2 SLR 18. The courts have tried to balance the substance of these two interests with the competing interests of efficient law enforcement, viz, the need for immediate investigation which may be hindered by a right to immediate legal consultation. Likewise, the trial process may be impeded unnecessarily if the right amounts to the right to choose counsel who is not free to represent him at the trial. It has not been argued that a person charged with an offence has a constitutional right to charge the public purse for his defence. However, state-assisted counsel are provided to an accused in a capital case as a matter of policy. They are provided with two counsel for their defence. It is important not to underestimate the importance of this policy. It is as much to assist the accused in his defence as it is to improve legal

65

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pursuant to an arrest must be produced before a magistrate within 48 hours and shall not be further detained in custody without the magistrates authority. Article 11 of the Constitution prohibits any person from punishment in a greater degree by any retrospective law6 6 and also against double jeopardy. Article 12 guarantees all persons equality before the law and the equal protection of the law. However, Article 9(3) and (4) do not apply to arrests and detention made under to two specific laws67 and to any arrest for contempt of Parliament.68 Save for these specific rights, the Constitution does not specify any other rights in the criminal process which a witness, suspect or an accused person is entitled to. As the expression according to law in Article 9(1) is ambiguous, the existence of such other rights, if any, is for the courts to determine. Whether or not and to what extent our courts should imply constitutional rights from the existing political system of a democratic69 ... nation, founded upon the principles of liberty and justice and ever seeking the welfare and

representation in all capital cases. The two-counsel policy ensures that every person charged with a capital offence can be defended by counsel with proven experience and skills.
66

See the discussion of the Court of Appeals decision in PP v Tan Meng Khin & 24 ors [1995] 2 SLR 505 in the light of Art 11 of the Constitution and retrospectivity, also Daniel Seng, Of Retrospective Criminal Laws and Prospective Overruling: Revisiting Public Prosecutor v Tan Meng Khin & 24 Ors 8 S Ac LJ 1; which was referred to by the Court of Appeal in its recent decision of PP v Manogaran s/o P Ramu, Criminal Appeal No 27 of 1996, where it discussed Art 11 and applied the principle of nullum crimen nulla peona sine lege. Article 9(6) which allows detention and arrest by (a) any law authorising the arrest and detention of any person in the interests of public safety, peace and good order, and (b) any law relating to the misuse of drugs or intoxicating substances which authorities the arrest and detention of any person for the purpose of treatment and rehabilitation. Article 9(5). See Theophanous v Herald & Weekly Times Ltd (1994) 182 CLR 104; Prof PH Lane, The Changing Role of the High Court (1996) 70 ALJ 246; McGinty v Western Australia [1996] 134 ALR 189 and comment in [1996] 18 Sydney LR 372.

67

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480 Singapore Law Review (1996) 70 happiness of her people in a more just and equal society is a question which will challenge the fertile minds of academics. The first occasion a question of this nature came on for judicial determination was at the hearing of an appeal before the Privy Council in Ong Ah Chuan71 where it was argued that (1) the rebuttable presumption in section 15 of the Misuse of Drugs Act (proved possession above x quantity = possession for the purpose of trafficking) was unconstitutional because it conflicted with the presumption of innocence, a fundamental human right protected by the Constitution; and (2) the mandatory death sentence in the Misuse of Drugs Act was unconstitutional because (a) the offence was so broadly drawn that it rendered the punishment arbitrary in that the court had no discretion to punish offenders according to their individual blameworthiness, and (b) the punishment was contrary to the requirement of equal protection of the law as it compels the court to impose the death penalty where the amount of heroin trafficked by an addict was 15 gms or more, but a lesser penalty where the amount trafficked by a professional dealer was 14.99 gms or less. The Privy Council held that both the statutory presumption and the allocation of the mandatory death penalty were constitutional: the presumption was not of a nature that could be said to be contrary to any fundamental principle of natural justice; the allocation of the death penalty could not be said to be discriminatory or arbitrary. The Privy Council also rejected the argument of the Public Prosecutor that the words in accordance with law in Article 9(1) referred to any law, however arbitrary or contrary to the fundamental rules of natural justice, provided that it was applied equally to all persons, and held that any provisions of any Act of Parliament passed after 16 September 1963 which were inconsistent with Article 9(1) would be void. However it is not clear from Lord Diplocks judgment what types of provisions would not satisfy the requirements of Article 9(1), other than that (if it could be implied from the rejected arguments of the
70 71

Proclamation of Independence dated 9 August 1965. [1981] AC 648.

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Public Prosecutor) they must not be arbitrary or contrary to the fundamental rules of natural justice. Lord Diplock said:
In a Constitution founded on the Westminster model and particularly in that part of it that purports to assure to all individual citizens the continued enjoyment of fundamental liberties or rights, references to law in such contexts as in accordance with law, equality before the law, protection of the law and the like ... refer to a system of law which incorporates those fundamental rules of natural justice that had formed part and parcel of the common law of England that was in operation at the commencement of the Constitution. It would have been taken for granted by the makers of the Constitution that the law to which the citizens could have recourse for the protection of fundamental rights assured to them by the Constitution would be a system that did not flout those fundamental rules. If it were otherwise it would be a misuse of language to speak of law as something which affords protection for the individual in the enjoyment of his fundamental liberties, and the purported entrenchment (by article 5) of articles 9(1) and 12(1) would be little better than a mockery. [Emphasis added.] One of the fundamental rules of natural justice in the field of criminal law is that a person should not be punished for an offence unless it has been established to the satisfaction of an independent and unbiased tribunal that he committed it. This involves the tribunal being satisfied that all the physical and mental elements of the offence with which he is charged ... were present on the part of the accused. To describe this fundamental rule as the presumption of innocence may, however, be misleading to those who are familiar only with English criminal procedure ... What fundamental rules of natural justice do require is that there should be material before the court that is logically probative of facts sufficient to constitute the offence with which the accused is charged.

The above passage covers two aspects of constitutionality: that relating to a substantive law and that relating to a procedural law. The test in relation to the constitutional validity of

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substantive law is not easy to apply because its ambit is determined by a prevailing value system. The language of Articles 10, 11 and 12 is sufficiently clear as to what laws are protected thereunder. But the language of Article 9(1) is opentextured, as is the language of Lord Diplock. However, the test in relation to procedural laws seems to be clearer, although he did not adopt the formula used in the appellants argument that Article 9(1) requires the provisions of any law to be fair, just and reasonable both as to procedure and to substance. The difficulty with Article 9(1) is apparent from the decision of the Court of Appeal in Jabar7 2 where the Court rejected the argument that any delay in the execution of the death sentence could render the sentence unconstitutional. It is difficult to envisage any absurd, arbitrary or oppressive law which contravenes Article 9(1) but which does not at the same time contravene any other Article protecting fundamental rights. It is also difficult to imagine the circumstances in which the legislature of a state with a parliamentary system of government would enact an absurd or oppressive law which it would not apply equally to all, including the legislators themselves. It may well be that Article 9(1) is operative only in terms of procedural laws. It is worth recalling that in Ong Ah Chuan, the Public Prosecutor argued that the words in accordance with law were directed against arbitrary execution or arrest at the discretion of the executive. Although Lord Diplock dismissed this argument in no uncertain terms, it should be noted that Article 9(6)73 provides that nothing in Article 9
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[1995] 1 SLR 617. Art 9(6) was added to the Constitution vide Act 5 of 1978. As the Minister of Law stated at the Second Reading: Part V of the Criminal Law (Temporary Provisions) Act which authorises the arrest and detention of any person in the interest of public safety, peace and good order, was enacted in the year 1955. When Singapore became a state within the Federation of Malaysia in 1963, the fundamental liberties clauses (including Art 5 [now our Art 9]) of the Malaysian Constitution became applicable to us. These clauses were retained in our Constitution when we separated from Malaysia in August 1965, It may be arguable that Part V of the Criminal Law (Temporary Provisions) Act infringes Art 5 [our Art 9] of the Constitution. The Bill before this House will ensure the

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shall invalidate the two laws specified therein by reason of such law being inconsistent with clause 9(3) and (4). Article 9(6) does not contemplate any possible inconsistency between these two laws and Article 9(1). The question may be asked whether any law providing for executive detention without trial is consistent with the principles of natural justice protected by Article 9(1). In Part 1 I have discussed the public policy reasons for these laws and the justifications in terms of fairness and justice to detainees under these laws. But, whatever the answer is, it can be reasonably gleaned from the Ministers speech at the Second Reading of the Bill that Parliament, in introducing the amendment bill in 1978 that he did not regard detention without trial as being contrary to Article 9(1). The words according to law in Article 9(1) were taken to refer to existing law, and in the context of criminal law, any Act of Parliament in force at the relevant time.74 There are other problems in relation to procedural laws. Lord Diplock has applied a cut-off date to the reception of the fundamental rules of natural justice of English common law under Article 9(1). Only those incorporated into the legal system of Singapore as at 16 September 1963 qualify for protection. It would appear that these rules are now frozen in a time capsule. All new procedural rules have to be tested against these fundamental rules. Furthermore, Haw Tua Tau was concerned only with the procedural rules during the trial process. Presumably, the rationale applies to the fairness of the pre-trial
constitutional validity of Part V. In all the circumstances, which I have related, it is necessary to make this Bill both prospective and retrospective.
74

See Jabbar where the Court of Appeal said: We respectfully agree that art 9(1) is different from art 21 in India. Any law which provides for the deprivation of a persons life or liberty, is valid and binding so long as it is validly passed by Parliament. The court is not concerned with whether it is also fair, just and reasonable as well. However, it is not conceivable that Parliament will enact laws which are so arbitrary and oppressive and contrary to the moral sense of the electorate as to invite a wholesale disobedience of those laws.

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process? The problems of identifying these rules are formidable. In England, as in Singapore, the right to a fair trial is accepted as a fundamental or basic right of an accused person.75 This right implies an unimpeded access to the courts. In England, the right of an accused to fair disclosure is regarded as an inseparable part of his right to a fair trial.76 However, the substance of fair disclosure may not be the same in Singapore;77 at least not to the same extent. Hence, the nature and extent of the impediment may not be the same for both jurisdictions, on or before 16 September 1963. Therefore, the determination of what are fundamental principles of natural justice which are part and parcel of the common law of England incorporated into the Singapore legal system as at 16 September 1963 is a herculean task. It is not surprising that even after 15 years there is little or no advance in the jurisprudence on Article 9(1). Ong Ah Chuan has approved, on the ground of fairness to the accused, the constitutionality of a statutory presumption in the Misuse of Drugs Act based on the purpose of an act peculiarly within the knowledge of an accused in the context of drug trafficking. That decision has also prescribed the characteristics of a fair trial: the tribunal trying the case must be independent and unbiased, and the evidence must be logically probative of facts sufficient to constitute the offence. Lord Diplock had another opportunity to elaborate on the criteria laid down in Ong Ah Chuan in Haw Tua Tau. There, the question was whether the amendments made to the Code in 1976 nullified the privilege against self-incrimination (or the right of silence) which, it was contended, was a fundamental rule of natural justice protected by Article 9(1).78
75

Per Wee CJ in Lim Seng Chuan v PP [1977] 1 MLJ 171 where he observed that fairness to the accused ... is a fundamental principle of the administration of justice ... Winston Brown [1995] 1 Cr App R 191, 198. Kulwant Singh [1986] 2 MLJ 10. In 1963, the Code gave the accused an option of either making an unsworn statement from the dock from which he could not be cross-examined or giving evidence on oath or affirmation and thereby submitting himself to cross-examination. This option had been enjoyed in England since the

76 77 78

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The Privy Council did not find it necessary to decide this question on the ground that the 1976 amendments did not impinge on the privilege against self-incrimination. They created no compulsion on the accused to testify but only a strong inducement on him to do so. Lord Diplock said:
So no amendment to the Constitution is needed to empower the legislature of Singapore (the President and Parliament) to enact whatever laws it thinks appropriate to regulate the procedure to be followed at the trial of criminal offences of courts in Singapore; subject only to the limitation that so long as Article 9(1) remains unamended such procedure does not offend against some fundamental rule of natural justice. It must not be obviously unfair. So the question for their Lordships is not whether Act No 10 of 1976 made a significant alteration to the disadvantage of accused persons in the procedure previously followed in criminal trials in Singapore (as indisputably it does), but whether the consequence of the alteration is a procedure for the trial of criminal offences that is contrary to some fundamental rule of natural justice. It would be imprudent of their Lordships to attempt to make a comprehensive list of what constitute fundamental rules of natural justice applicable to procedure for determining the guilt of a person charged with a criminal offence. Nor is this necessary in order to dispose of these three appeals. The only rule alleged to be the fundamental rule of natural justice, against which the appellants claim Act No 10 of 1976 offends, is the so called privilege against self incrimination as expressed in the latin maxim nemo debet se ipsum prodere.

Criminal Evidence Act 1898 first made persons accused of felony competent, though not compellable, witnesses in their own defence. The 1972 Criminal Law Revision Committee recommended its abolition in England. In 1976, Singapore adopted the recommendation and abolished this option by Act No 10 of 1976. In its place was substituted a provision that if the accused, when called upon to enter his defence, elects not to do so, or fails to do so when under oath or affirmation, the court could draw such inferences from his refusal as appeared proper.

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Lord Diplocks language in Ong Ah Chuan is sufficiently unclear to have raised the concern of an academic in the NUS Law Faculty79 that the second requirement of the fundamental rules of natural justice, ie, that relating to logically probative facts, is a complete and utter destruction of the presumption of innocence which, to him, is one of the most fundamental of the rules of natural justice. In Haw Tua Tau, Lord Diplock appeared to have made confusion worse confounded when he elaborated that any procedural law would be constitutional provided it was not obviously unfair. What is obviously unfair? This is like Bacons Pilate, who asked What is truth? and would not stay for an answer. B. The privilege against self-incrimination It could be said that the Privy Council displayed its wisdom and sensitivity to local conditions in not deciding for Singapore, in the absence of the views of the Court of Criminal Appeal, the status of the privilege against self-incrimination.80 In Mazlan, the High Court decided to answer it. There, the accused incriminated himself in the course of questioning by a police officer. He had not been told that he was duty bound to tell the truth and that he need not incriminate himself.81 The High Court
79 80

Michael Hor, The Burden of Proof in Criminal Justice [1992] 4 S Ac LJ 267, 302. As Lord Diplock had stated in Haw Tua Tau at 53: ... if their Lordships had been of the opinion that there was any substance in the argument that the effect of the amendments made to the Criminal Procedure Code by Act No 10 of 1976 was to create a genuine compulsion on the accused to submit himself at his trial to cross-examination by the prosecution, as distinguished from creating a strong inducement to him to do so at any rate if he were innocent, their Lordships, before making up their own minds, would have felt it incumbent on them to seek the views of the Court of Criminal Appeal as to whether the practice of treating the accused as not compellable to give evidence on his own behalf had become so firmly based on the criminal procedure of Singapore that it would be regarded there as lawyers as having evolved into a fundamental rule of natural justice by 1963 when the Constitution came into force. [Emphasis added.] Section 121(2) CPC reads: Such person shall be bound to state truly the facts and circumstances with which he is acquainted concerning the case

81

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held that the privilege was a constitutional right, and that the failure to warn the accused was a breach of such a right which rendered the statement inadmissible. The Attorney-General referred the question to the Court of Appeal for consideration.82 The Court of Appeal held that the privilege was not a fundamental rule of natural justice protected by the Constitution.83 In the meantime, in Chin Seow Noi,84 Amarjeet Singh JC (the trial judge at first instance) had independently reached the same conclusion on different grounds: (a) there were many existing legislative qualifications to the privilege;85 (b) prior to 1960, the CPC had contained a provision forbidding the administration of the warning to a witness or suspect who was being questioned;86 (c) dicta in the Privy Council decision of Coote87 suggested that the accused had no right to be informed of the privilege as ignorance of the law was no excuse. These two decisions are deprecated in an article The Privilege Against Self-Incrimination and Fairness to the Accused.88 The author, Michael Hor, regards the privilege as the one organising principle in the criminal process [which] is the right to resist any effort to force [the accused] to assist in his own prosecution. It provides substance to the common law ideal of a fair trial through an adversarial... process, and that it is the guardian of

except only that he may decline to make with regard to any fact or circumstance a statement which would have a tendency to expose him to a criminal charge or to a penalty or forfeiture.
82 83

[1993] 1 SLR 512. The accused was convicted on other evidence. If the Court of Appeal had declared that the privilege was constitutionally protected, s 27 of the Corruption Act and s 10 of the Official Secrets Act would have been held unconstitutional. Criminal Case No 6 of 1990, unreported. Supra, n 83 and see also s 134 of the Bankruptcy Act and s 236(5) of the Companies Act. Section 122 of the Criminal Procedure Code, Straits Settlement Ordinance (X of 1910). (1873) 4 LRPC 599. [1993] SJLS 35.

84 85 86 87 88

Singapore Law Review (1996) more fundamental aims of criminal justice: the protection of the innocent from conviction and the protection of the accused from improper conduct by law enforcement officials. To encourage the decline of privilege ... is a dangerous course. If we see the role of the privilege in the entire criminal process, and not as an isolated concept, removing or constricting it without the introduction of counter-balancing safeguards may seriously affect the fairness of the proceedings against the accused. The argument against withdrawing the privilege at any stage of the criminal process is that it is unfair to the accused. It is difficult to see why it is unfair to the suspect if he volunteers the truth before or after he is charged. Section 29 of the Evidence Act allows voluntary confessions obtained by deception to be admitted in evidence. Even assuming that the privilege is a fundamental rule of natural justice, it does not follow that a failure to exercise it by reason of the suspect not having been informed of such right, is in itself unconstitutional. The privilege can exist as a constitutional right without a separate duty to inform. The right to counsel exists as a constitutional right, but no one has suggested that this right is infringed if the police fails to inform an arrestee of such a right. Indeed, section 29 provides that a confession if relevant does not become irrelevant merely because he has not been warned that he was not bound to make such an answer. If the High Courts decision were correct, section 29 would be pro tanto unconstitutional. Section 29 is not obviously unfair. The history of the development of the privilege in English law negates the claim that the privilege is an organising principle in the criminal process. The most recent American research89 on the subject shows that the privilege was developed in criminal
89

488

See William J Stuntz, The Substantive Origins of Criminal Procedure, (1995) Yale LJ 393, John H Langbein (March 1994) Michigan Law Review 1047, Eben Moglen (March 1994) Michigan Law Review 1086, RH Helmholz, Origins of the Privilege Against Self-Incrimination, 65 NYUL Rev 962, 982 (1990) and Michael RT MacNair, The Early Development of the Privilege Against Self-Incrimination, 10 Oxford J Legal Stud 66 (1990) and Lewis Mayers, Shall We Amend the Fifth Amendment? (1959).

17 Sing LR

10th Singapore Law Review Lecture 489 trials at the beginning of the 18th century when the common law judges began to allow the accused to be defended by counsel. Previously at common law trials, the accused was interrogated by the prosecutor at trial, supplemented by interchanges between the accused and the judges and prosecutor as the accused had to defend himself. The idea that the accused could not be questioned at his trial was unknown to English law in the 17th century. As Justice Frank observed in St Pierre v US (1942) 132 F 2nd, 837 at 842:
No one in those days dreamed of saying that self-incrimination was wrongful at common law.

There were also pre-trial interrogations conducted by magistrates (there was no police force then), but the answers of the accused (including his refusal to answer) would be introduced in evidence at his trial, often by the magistrate testifying in person90 as to what the accused had told him. Together with the development of the principle that the prosecution had to prove its case beyond reasonable doubt, this procedural right was then elevated into a principle of law (chiefly through the efforts of defence counsel who silenced their clients and spoke on their behalf) and attributed an ancient lineage by linking it with the Latin maxim nemo tenetur se ipsum prodere. In fact, that maxim was derived from proceedings in the ecclesiastical courts in trials of heretics and originated within the European tradition as a sub-principle of the inquisitorial procedure, centuries before the integration of lawyers into the criminal trial made possible the development of the distinctive Anglo-American adversarial system of criminal procedure in the later eighteenth century. That this was probably how the privilege developed is demonstrated by its incorporation in the 5th Amendment of the US Constitution in these words No person shall ... be compelled in any criminal case to be a witness against himself. There was no such privilege outside the trial itself until the

90

Ibid, Mayers at p 10.

490 Singapore Law Review (1996) 91 Supreme Court decided that it was protected by the due process clause. In Twining v New Jersey,92 the Supreme Court said:
This survey does not tend to show that it was then in this country the universal or even general belief that the privilege ranked among the fundamental and inalienable rights of mankind.

The privilege is now constitutionally protected in USA.93 In his book, Shall We Amend The Fifth Amendment? (1959), Prof Lewis Mayers wrote:
Reviewing this history, it seems accurate to say that the privilege did not acquire constitutional status because it was deemed a palladium of individual liberty, it has come to be deemed a palladium of individual liberty because it has acquired constitutional status.

Indeed, the privilege is not necessarily a shield against injustice as it can be used as a sword to cause injustice to another accused. For example, the guilty accused may rely on his right of silence to jeopardise the life or liberty an innocent co-accused in a joint trial in the hope of securing his own acquittal. The privilege rests on a very insecure foundation in history, in reason and in justice. It may better accord with justice under law that the fundamental principle ought to be that in its search for needed information in crime control, the state is entitled to every

91 92 93

In Miranda v Arizona 384 US 436 (1966). (1956) 350 US 422, 428. In England, the notion that there was no such privilege in pre-trial investigations by the police was simply because the police force was only created in 1829. With the growth of the police force, the judges developed a set of rules known as the Judges Rules, specifically to deal with questioning by the police. The Judges Rules were subsequently superseded by the Police and Criminal Evidence Act 1984. Recently, the privilege has been eroded by ss 34-37 of the UK Criminal Justice and Public Order Act 1994 which implemented the Eleventh Report of the Criminal Law Revision Committee allowing the court or jury to draw the necessary inferences from the silence of the accused on questioning by the police as well from as his refusal at trial to give evidence.

17 Sing LR

10th Singapore Law Review Lecture 491 mans testimony. Every rule of evidence or procedure that suppresses relevant evidence creates a significant obstruction to the efficient operation of the criminal process. However, abolishing the privilege94 does not necessarily assist the investigators or the court to compel hostile witnesses or unwilling accused persons to tell the truth. If a defence witness or an accused refuses to answer certain questions in crossexamination, there is a limit to the courts coercive powers. The contempt power cannot be used too drastically or too often without causing public disquiet or bringing the judiciary into disrepute. The solution is to provide a strong inducement to suspects to explain their conduct and the accused not to keep silent. Section 122(6) of the Code has provided a practical and fair solution. Haw Tua Tau has sanctioned it. The general principle should be that if an accused refuses to answer questions put to him, the court should have the discretion to draw such adverse inference against him as may appear proper. C. The presumption of innocenceProof beyond reasonable doubt The presumption of innocence is not something different from the onus of proof of all the elements of an offence beyond reasonable doubt. In Joseph Constantine Steamship Line Ltd v Imperial Smelting Corp Ltd,95 Lord Wright said:
... the ordinary rule is that a man is not held guilty of fault unless fault is established and found by the court. This rule, which is sometimes described as the presumption of innocence, is no doubt peculiarly important in criminal cases or matters, but it is also true in civil disputes.

Cross on Evidence96 states as follows:

See ss 121, 122(6), 180(k), 190(5) and 290 of the Code and s 134(2) of the Evidence Act. [1942] AC 192.

(1990 Ed) at 125.

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prove the case against him beyond reasonable doubt. This is the fundamental rule of our criminal procedure, and it is expressed in terms of a presumption of innocence so frequently as to render criticism somewhat pointless.

In Ong Ah Chuan, the Public Prosecutor conceded that the words in accordance with law required fair procedures, including the presumption of innocence. Lord Diplock accepted that the principle of proof of all the elements of an offence supported by logically probative facts is a fundamental rule of natural justice. But he warned that calling this rule as the presumption of innocence could be misleading. What he presumably meant was that one might read into the presumption more than what it really was. Surprisingly, nowhere in both his judgments in Ong Ah Chuan and Haw Tua Tau did Lord Diplock expressly equate the presumption of innocence with the principle of proof beyond reasonable doubt nor did he expressly say that both were fundamental principles of natural justice. Assuming that the principle of proof beyond reasonable doubt is a fundamental principle of natural justice, what is its scope? In his article The Burden of Proof in Criminal Justice,97 Hor makes the claim98 that in Singapore, the presumption of innocence
has been severely eroded and is in danger of being crippled beyond recognition by what may sometimes appear to be a concerted action of both the Legislature and the Judiciary. The makers and interpreters of our law seem bent on the creation of exceptions to the principle of proof beyond reasonable doubt for a host of insubstantial and unsubstantiated reasons.

This is a very serious charge if it means what it says. On further examination, it means a lot less. Hors premise is that the presumption of innocence not only requires that all the essential ingredients of the offence be proved by the prosecution, but it also implies that the elements of an offence do not change, however it is defined. As, logically speaking, there is no
97 98

[1992] 4 S Ac LJ 267.
At 270.

10th Singapore Law Review Lecture 493 difference between an element of an offence as contained in the definition of the offence and an element of an offence as contained in an exception to the offence, both the element and the exception should have the same effect, because they have the same function. Therefore the prosecution must bear the burden of proving the elements of an offence and whatever exceptions the legislature may have used in defining the offence. Thus all general and special exceptions, provisos and statutory presumptions with which we are so familiar under our laws should be regarded as elements of the offences where they apply. It is on this premise that the charge is made. Proof of this, it is argued, is the decision of the Privy Council in Yuvaraj where it was held that a statutory presumption in the Prevention of Corruption Act cast a persuasive burden on the accused to discharge the presumption on the balance of probability, and in Jayasena where the Privy Council held likewise with respect to a special exception to murder (the right of self-defence). It is argued that in both cases, the Privy Council should have required the accused to discharge merely the evidential burden. After Jayasena, the local courts failed to stop this erosion when they followed these non-binding decisions, when they could have done what the local courts had previously done, which was to cast only an evidential burden on the accused. I do not propose to discuss the detailed arguments marshalled in support of the charge. But it is worth restating that as a matter of statutory interpretation, the decisions in Yuvaraj and Jayasena cannot be faulted. It was not for the Privy Council to ignore the clear meaning of the definition of proved in section 399 and the meaning of the clear words of section 107100 because they 17 Sing LR
99

Section 3(3) reads: A fact is said to be proved when, after considering the matters before it, the court either believes it to exist or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists.

100 Section 107 reads: When a person is accused of any offence, the burden of proving the existence of circumstances bringing the case within any of the general exceptions in the Penal Code, or within any special exception or proviso contained in any other part of the same Code, or in any law

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(1996) Singapore Law Review detract from the principle that the prosecution must prove all the elements of the offence. D. Burden of proving lawful excuse

The characterisation by Hor of the Court of Criminal Appeals decision in Tan Ah Tee101 as arbitrary is not justified simply because the Court chose to read the statutory exception to cast a persuasive burden on the accused rather than an evidential burden. It was again a question of ascertaining the legislative intent. There, two accused were charged with trafficking of diamorphine. Section 3 of the Misuse of Drugs Act provided that except as authorised by this Act ... it shall be an offence for a person ... to traffic in a controlled drug. No evidence of lack of authorisation was adduced by the prosecution. The defence was that an essential element of the offence had not been proved, viz lack of authorisation. The Court of Criminal Appeal held that the words except as authorised, as a matter of construction, cast the burden on the accused to prove they had authorisation. This is seen as a crushing blow on the presumption of innocence, because no known rationale exists which differentiates offence from exception for the purposes of allocating the persuasive burden. The case of Iris Tan102 has also been criticised by Hor along similar lines in a later article.103
defining the offence, is upon him, and the court shall presume the absence of such circumstances.
101 Supra, n 97 at p 282. Tan Ah Tee followed the approach of the English Court of Criminal Appeal R v Edwards [1975] QB 27, which was subsequently approved by the House of Lords in R v Hunt [1987] AC 352. The English decisions are also criticised on the ground that the outcomes of such forms of legislative words depend on how the courts read them and this creates an intolerable degree of uncertainty for the operation of the principle of proof beyond reasonable doubt. 102 [1995] 2 SLR 63 (HC). 103 The Presumption of InnocenceA Constitutional Discourse for Singapore [1995] SJLS 365, 385. The criticism is not justified. In that case, the charge was that the accused had provided public entertainment without a licence under the Public Entertainments Act. The accused had obtained a licence under the Act but a performer proceeded to perform an

10th Singapore Law Review Lecture 495 In my view, the entire argument in this area of the law is misguided. It requires an overly suspicious mind to read an issue of statutory interpretation as a constitutional issue impinging on the fundamentality of the criminal process. There are sound policy reasons why the accused should be made to bear the burden of proof in cases of this nature, even where the law is unclear. In Singapore, licensing laws can be divided into two categories: those providing for centralised licensing, eg the Road Traffic Act, relating to driving licences; and those providing for the devolution of such responsibility, eg prescribing poisons under the Poisons Act or authorising the use of controlled drugs under the Misuse of Drugs Act. In the case of central licensing, the Registrar of Vehicles has records of subsisting licences, and so where an accused person is charged with the offence of driving without a licence, the prosecution has no difficulty in proving the absence of a licence. But the accused would also know that he has no licence. The reality is that he would never be charged for such an offence if he has a licence. In the case of controlled drugs, the reality in Singapore is that the accused is invariably arrested in circumstances which suggest that he has no authorisation to deal in the quantity of drugs found on him. Investigations would determine whether he is an authorised dealer. The reality is also that he would never be charged if his possession is authorised. Accordingly, apart from the unreality of the situation, there is insufficient justification to require the police to check this fact with every hospital, doctor, dentist, pharmacist and any other person authorised to keep records of controlled drugs. In Singapore, people in the streets are not arrested and detained arbitrarily or randomly and charged in court. The law does not operate in a vacuum. There is no justification in a principle of law that the accused should be acquitted if he shows that there is a reasonable doubt that he has 17 Sing LR
act of public entertainment after the licence had expired. This issue was decided in an earlier prosecution which made the point res judicata. The only issue before the court was whether the accused had mistakenly believed that her licence covered the time of the relevant performance. The question of who had to prove the existence of a valid licence was totally irrelevant.

Singapore Law Review (1996) a licence. This is a black and white question without a shade of grey. Whether or not a person has a licence to do something (without which would be an offence) is a pure question of fact. The courts cannot and should not be criticised for recognising reality. Criticisms of the kind that Hor has referred to are about bad drafting, not about bad laws. Defining the offence to shift the persuasive burden on the accused to prove lawful excuse in such cases cannot, by any stretch of the imagination, undermine the presumption of innocence, whether or not it is a fundamental principle of natural justice. There are good policy reasons for using statutory exceptions. The law in this area can and should be simpler and more efficient by amending the Evidence Act to provide that in any such type of case, the accused has the burden of proof. Therefore, when Hor disagrees with the use of exceptions or presumptions or deeming provisions which shift the persuasive burden on the accused to prove that his act is not unlawful, he is really disagreeing with the underlying policy and not its implementation. These are differences about what kind of interests or values our society should protect. In the absence of empirical proof, such differences cannot justify the charge that these exceptions and presumptions have no basis or that the basis cannot be substantiated. E. Legitimate policy considerations Hor argues against the use of statutory presumptions because he believes that no derogation from the principle of proof beyond reasonable doubt can ever be justified by a legitimate social policy. This appears to mean that there is no social policy that can justify any derogation from the principle. This is startling. Again, it means much less than what it appears to say. This is what he actually says:
This brings us to the issue of whether derogations from the principle of proof beyond a reasonable doubt can ever be justified by a legitimate social policy. It will be argued that it cannot.

496

17 Sing LR 10th Singapore Law Review Lecture 497 It is important to rephrase the issue to emphasise what is at stake: when is it a legitimate social policy to increase the probability of convicting the innocent in order to achieve a corresponding decrease in the probability of acquitting the guilty? Placing persuasive burdens on the accused will mean that he is to be convicted and punished, occasionally with the ultimate penalty of death, notwithstanding that he is able to provide a reasonable explanation and notwithstanding that his defence is likely to be true as the prosecutions case.104 The answer is, of course, Never. Such a policy cannot be defended without undermining public confidence in the criminal justice system. No such equilibrium is relevant because no responsible government would adopt a policy of proscribing any criminal conduct, however heinous, with a view to increasing, directly or indirectly, the probability of convicting the innocent, whatever its policy may be with regard to those who are guilty. The principle of proof beyond reasonable doubt is a fair and reasonable safeguard against the conviction of the innocent. But for offences which cause great harm to the community, it can be a hindrance to the successful conviction of the guilty. Making it less difficult for the guilty accused to be acquitted in such cases by the use of presumptions is a legitimate social policy and has been commonly adopted in many Commonwealth countries. Recently, the Misuse of Drugs Act was amended to provide that the offence of trafficking is committed by mere possession of a controlled drug beyond a prescribed quantity. The offence arises from the presumption of trafficking from proved possession. This can be justified on policy considerations. Heroin and other addictive drugs are one of great social evils in modern society. They destroy people and profit the destroyers. Hence, drug trafficking is subject to the most severe punishments under the law. If the prosecution has to prove the act of trafficking, as ordinarily understood, in every case, there will be very few convictions for trafficking and a resultant loss of public confidence in the criminal justice system. Hence the need for a broad definition of trafficking and also for
104 At pp 300301 of The Burden Of Proof.

498 Singapore Law Review (1996) presumptions. A person possesses drugs either for his own consumption or for someone elses consumption. As Lord Diplock said in Ong Ah Chuan of this presumption:
It is not disputed that these minimum quantities are many times greater than the daily dose taken by a typical heroin addicts in Singapore; so, as a matter of common sense, the likelihood is that if it is being transported in such quantities this is for the purpose of trafficking.105

If he has more drugs than he can consume within a reasonable period, it is a fair presumption that the excess is meant for other people to consume, a presumption he can rebut. As Lord Diplock observed in Ong Ah Chuan:
All that is suggested to the contrary is that there may be exceptional addicts whose daily consumption much exceeds the normal; but these abnormal addicts, if such there be, are protected by the facts that the inference that possession was for the purpose of trafficking is rebuttable.106

Hence, any government which is serious about and determined to suppress drug trafficking would want to target the suppliers in order to stop the flow of drugs into the community. If this is not possible, and it is not possible in Singapore, a less effective way is to target the suppliers lower down in the chain of supply. Hence, the proscription of possession beyond a prescribed amount and deeming it to be possessed for the purpose of trafficking. F. The search for fundamental rules of natural justice In his article The Presumption of InnocenceA Constitutional Discourse,10 7 Hor attempts to reinforce his arguments in his earlier article that Ong Ah Chuan, in so far as it decided that the statutory presumption was constitutional, was unsupportable

105 At p 71. 106 At p 71. 107 [1995] SLJS 365.

17 Sing LR 10th Singapore Law Review Lecture 499 10 8 and clearly out of favour, when seen in the light of Sin YauMing, a Privy Council appeal from Hong Kong, and Oakes, a decision of the Canadian Supreme Court. He now finds further support for this argument in two more recent Privy Council decisions.10 9 He suggests that our courts should now hold both Yuvaraj and Jayasena unconstitutional and restore the presumption of innocence to its proper place in the criminal law according to the law of the Constitution.110 Again, it is not necessary to discuss in detail the arguments, but Hor is a long way from making good his case. The recent Privy Council decisions relied on were decided under constitutions11 1 which expressly protect, unlike Article 9(1), the presumption of innocence. As admitted by Hor, the Privy Council did not even consider the purist position that no deviations or exceptions whatever to the principle are to be tolerated. They eventually applied a balancing principle based on proportionality and

108 At page 305. 109 In Vasquez, the Privy Council decided that a provision in the Belize Criminal Code which places the burden of proving provocation on the accused in a charge for murder was inconsistent with the Belize Constitution which expressly protects the presumption of innocence in those words. Hor argues that if Vasquez is good law, then Jayasena is not and must be unconstitutional in both Singapore and Malaysia. He also refers to Oakes where the Canadian Supreme Court struck down for unconstitutionality the very presumption that was upheld in Ong Ah Chuan. He also argues that Lee Kwong-Kut, a Privy Council decision from Hong Kong, marks the demise of Ong Ah Chuan when it struck down a statutory presumption that was logically probative of guilt. 110 Hor also relies on Singapores agreement to the ASEAN Inter-

Parliamentary Organisation Declaration of Human Rights, which contains an express provision for the protection of the right to be presumed innocent until proven otherwise, as Singapores acceptance that the presumption of innocence is a fundamental rule of natural justice. See also Andrew Ashworth and Meredith Blake, The Presumption of Innocence in English Criminal Law [1996] Cr LR 306 for a survey of the number of offences in England which have qualified the operation of the presumption of innocence.
111 The Belize Constitution, the Canadian Charter of Rights and the Hong Kong Bill of Rights Ordinance.

500 Singapore Law Review (1996) 112 reasonableness. In Haw Tua Tau, Lord Diplock ruled that what is contemplated by the words according to law, in relation to a procedural law, is that the law must not be obviously unfair. The presumption of innocence, as it applies in the context of statutory presumptions and exceptions etc, is not obviously unfair where the social objectives justify their use. Thirdly, in Oakes, Dickson CJ distinguished Ong Ah Chuan on the ground that Lord Diplock did not read the presumption of innocence into Article 9(1). Lord Diplocks omission to state expressly that the principle of proof beyond reasonable doubt is a fundamental rule of natural justice could even have been deliberate, since he specifically cautioned that to call the burden of proof as the presumption of innocence could be misleading. He may be wiser than he has been credited for. It was not for him to say, that in the case of Singapore, which particular model of the criminal process was appropriate to its circumstances. He did not limit his analysis to the adversarial system of justice. He referred to other systems of criminal justice which do not make a clear distinction between proof in criminal cases and proof in civil cases. He referred to systems where the judge is also the interrogator. The common law has developed and evolved in a special way, and one of its fundamental principles in the criminal process is the principle of proof beyond reasonable doubt. But this does not mean that the principle is fundamental to a system of justice in the sense that if it is absent, as in continental systems of justice, there is no justice in the system. Unlike other constitutions which specifically protect fundamental principles of law, Article 9(1) has been interpreted to refer to fundamental rules of natural justice. They may or may not refer to the same things. For instance, it could be argued that introducing procedural principles based on the inquisitorial system may not necessarily conflict with Article 9(1). So, the way is open for a constitutional discourse on what is the best model of the criminal process within the limitations of Article 9(1) we should strive for. This does not necessarily call
112 At pp 389-403.

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501 for the perpetuation of the principle of proof beyond reasonable doubt for all offences. The principle was developed by the common law at a time when punishments were harsh and severe even for minor offences. 113 A high degree of certainty was required by the common law judges. The principle is not sacrosanct, although it is true that a conviction for an offence generally attracts greater disabilities than a judgment in a civil suit. But there are offences and offences. Murder is a far more serious violation of the law than jaywalking or littering. Yet the burden and standard of proof applies to all equally. In the civil law, the judges have been able to lay down different standards of proof for different civil wrongs. As Singapore develops as a regional commercial and business hub, simpler and better laws may have to be considered to regulate and improve the efficiency of this sector of our economy. In theory, it can be argued that less serious commercial crimes and many regulatory offences could made punishable on proof on a balance of probabilities. At least, this burden is, in law, more onerous for the prosecution than in strict liability offences. An argument has yet to be made that strict liability offences contravene Article 9(1), presumably because it would be extremely difficult to demonstrate their obvious unfairness. In Australia and USA, the burden of the principle of proof beyond reasonable doubt has made it necessary for these countries to create civil offences.11 4

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113 For example, grand larceny was a capital offence from the time of Henry II but in favour of life, petty larceny was treated less harshly; as such juries developed the habit of assessing the stolen article at a very low value in order to classify it as petty larceny to save the thief from the gallows. 114 Some provisions of Australian Corporations Law are designated civil

penalty provisions (see s 1317DA, being some statutory duties of directors (s 232), rules governing financial benefits to related parties (s 243ZE), duties to maintain proper accounting records and to prepare financial statements (s 318(1)) and the duty to prevent insolvent trading (s 588G). The Australian Securities Commission (ASC) may apply for a civil penalty order under s 1317EB. If the contravention is serious, the Court may order the defendant to pay a pecuniary penalty (s 1317EA(3)(b)). It should be noted that if the ASC applies for a civil penalty order, then

(1996) 502 Singapore Law Review These offences are normally settled upon payment of a civil penalty and do not carry the stigma of criminal convictions. But the pecuniary penalties can be much heavier than fines for minor offences. So, perhaps it may not be a heresy to suggest that the criminal law may be able to accommodate two standards of proof, 115 the heavier one for serious offences, the lighter for minor offences. The criminal law is not static; neither is the criminal process. Hor believes that the time is ripe for a reconsideration of the approach the courts of Singapore should take when called upon to review legislation or cases which adversely affect the presumption of innocence. He says that in the provisions of our Constitution is to be found the seeds of a new discourse on the burden of proof based on considerations of principle and policy rather than on the purely formal, linguistic and historical approaches which characterise most of the judicial decisions in the past. However, any reconsideration with a view to bolstering the role the principle of proof beyond reasonable doubt and immunising it under Article 9(1) is not necessarily the best way to develop an efficient and effective, but fair, criminal process. It is not likely to be better than what we now have if it cripples crime control. Any model of the criminal process we should strive for should have the following features: firstly, it must be simple to operate and easy for the public to understand and appreciate; secondly, it must be fair to both the prosecution and the accused; thirdly, the managers of the process, the prosecutors, defence counsel and the courts should regard it as an instrument of truth finding;
regardless of its outcome, criminal proceedings cannot be brought for the same contravention (ss 1317FB, 1317JB).
115 Cross on Evidence refers to Morgan, Problems of Proof in the AngloAmerican System of Trials and notes at page 156 that Three standards of proof appear to be recognised in the United States, proof by clear, strong and cogent evidence lying midway between proof on a preponderance of probability and proof beyond reasonable doubt. In R v Askeland [1983] Tas NC 224, the court took the view that in Australia the standard of proof of the voluntariness of a confession is an intermediate one between the usual two standards.

503 fourthly, it must be efficient, ie, it should be able to speedily apprehend, try, convict and dispose of a high proportion of criminal offenders whose offences become known;11 6 finally, it should be parsimonious in the sense that it must be worth the economic resources to allocate to operate it. The search for the fundamental rules of natural justice in the criminal process in this context promises to be an exciting endeavour for those who are concerned with and about criminal justice in Singapore.

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116 Herbert Packer, Two Models of the Criminal Process (1964) 113 Univ of Pennsylvania Law Review 1, 10.