Criminal Procedure, Evidence and Sentencing

• Date: 01 December 2014
• Published date: 01 December 2014
• Author: LEE Jwee Nguan LLB (Hons) (National University of Singapore), LLM (NYU), LLM (NUS); Advocate and Solicitor (Singapore); Director (Legal & Enforcement), Competition Commission of Singapore. MOHAMED FAIZAL Mohamed Abdul Kadir LLB (Hons) (National University of Singapore), LLM (Harvard); Attorney and Counsellor-at-Law (New York); General Counsel & Director (Legal), Singapore Medical Council.
• Citation: (2014) 15 SAL Ann Rev 295

Access to counsel

14.1 It is trite under Singapore law that an individual is not entitled, by virtue of Art 9(3) of the Constitution of the Republic of Singapore(1985 Rev Ed, 1999 Reprint) (the Constitution) to consult counsel immediately upon arrest. The long-settled position in law emanates from the Court of Appeal's pronouncement some two decades back inJasbir Singh v Public Prosecutor [1994] 1 SLR(R) 782 (Jasbir Singh), a case which purported to articulate the principle that an arrested person is entitled to consult counsel only a reasonable time after arrest. In two cases that were heard by the High Court and, subsequently, the Court of Appeal involving criminal charges arising from a high-profile computer attack by an individual who went under the moniker the Messiah, the Supreme Court provided useful guidance as to the contours of the principle enunciated in Jasbir Singh and in particular on the matter of when an accused person's right to counselunder the Constitution arises.

14.2 In the present proceedings, the applicant had been arrested on4 November 2013 and was thereafter charged for a suite of computer-related and drug offences. Requests made by counsel for access to the applicant on 11 November 2013 and 13 November 2013 (by way of an application to the District Court) were denied. Counsel therefore applied by way of criminal motion in James Raj s/o Arokiasamy v Public Prosecutor[2014] 2 SLR 307 (James Raj (No 1)) on 13 November 2013 for a declaration by the High Court for him to be granted immediate access to the applicant. The matter was heard on 15 November 2013 and at the conclusion of the hearing that day, the High Court reserved judgment to consider the matter and directed parties to file submissions by 29 November 2013 as to what a reasonable time ought to be before counsel ought to be granted access to the applicant in the present circumstances. For completeness, it ought to be noted that as the court had reserved judgment, by the time the matter was decided by the High Court (on 14 January 2014), the issue was rendered moot in so far as the applicant had, by that juncture, already been granted access to counsel(on 3 December 2013).

14.3 In the High Court, Choo Han Teck J considered the Court of Appeal's pronouncements in Jasbir Singh and concluded, on its authority, that it would not be appropriate to grant a declaration that an accused person would be entitled to consult counsel immediately upon his request to do so: James Raj (No 1) at [7]. In relation to the argument by the applicant that a reasonable time ought not to exceed 48 hours on the premises, inter alia, that Art 9(4) of the Constitution provides that an individual who is arrested must be produced before a magistrate within 48 hours and that s 68 of the Criminal Procedure Code (Cap 68, 2012 Rev Ed) (CPC) provides that the police cannot detain a person arrested without a warrant for more than 48 hours, Choo J declined to take a conclusive view on such a matter, noting that by the time thematter was decided, the issue in question was rendered moot: James Raj (No 1) at [9] and [15].

14.4 Choo J then proceeded to consider the matter of whether a reasonable time might have elapsed by 29 November 2013 (this served as a reference point because, as intimated earlier, this was the date the parties submitted their written submissions as directed by the court). As a preliminary point, Choo J observed that the onus of providing to the satisfaction of the court that giving effect to the right to counsel would impede police investigation or the administration of justice was on the police (and, by extension, the Prosecution). He noted that all an accused person was required to do was to show that he had not been permitted to consult counsel subsequent to his arrest and the burden would then be shifted to the Prosecution to show that there had been no breach of the constitutional right in view of the ongoing investigations. In this connection, Choo J noted that as the right to counsel represented a constitutional fundamental right, the burden was on the Prosecution to prove that it was necessary, and not merely desirable or convenient, toderogate from the accused person's right to counsel: James Raj (No 1) at [12].

14.5 On the facts before him, Choo J opined that the Prosecution had failed to provide sufficient evidence to show how access to counsel would have hindered investigations. While the investigations in the case were appreciably complex and would invariably require a significant amount of time to be completed, any argument that access to counsel might result in the accused shutting up and refusing to co-operate with police amounted, in the court's view, to mere speculation. In the same vein, while the collection of digital evidence may take some time, and granting the accused access to counsel may result in the accused deciding not to yield up such evidence, this was similarly on the facts an unsupported assumption: James Raj (No 1) at [13] and [14]. Even if there were concerns that access to counsel may result in depriving the police of the time needed to question him, or that the applicant might refuse to be interviewed by the police unless his counsel was present, the court observed that these concerns were better addressed by delineating the content of the right to counsel, rather than doing away with it altogether. In the circumstances, the court was minded to find that the applicant was entitled to consult counsel by 29 November 2013: James Raj (No 1) at [15].

14.6 Dissatisfied with the reasoning of the High Court and with the conclusions that it reached, the applicant proceeded to apply for leave to file a criminal reference under s 397 of the CPC to the Court of Appeal which encompassed two issues: first, whether there was an immediate right to counsel upon the request of a person remanded for investigations (the first question) and second, on the premise that thefirst question was answered in the negative, what constituted a reasonable time within which the right to counsel could be exercised.

14.7 As a preliminary point, in its decision in James Raj s/o Arokiasamy v Public Prosecutor[2014] 3 SLR 750 (James Raj (No 2)),the Court of Appeal rejected two preliminary objections that the Prosecution had made to the criminal reference. The first objection was that the High Court had entertained the application in James Raj (No 1)despite having had no jurisdiction to do so as the applicant ought to have applied by way of a criminal revision against the refusal of the District Judge to grant access to counsel, as opposed to a stand-alonecriminal motion. Rejecting this argument, noting that the matter was not raised in the High Court, the Court of Appeal noted that such jurisdictional objections ought to have been taken timeously before the High Court as opposed to being raised in the Court of Appeal for the first time: James Raj (No 2) at [18]. In any event, as the Court of Appeal noted, the argument was one of form, rather than substance, observing that while it was technically correct that the applicant ought to have applied by way of a criminal revision of the District Court's refusal to grant access to counsel on 13 November 2013, this was in substance the nature of the criminal motion that had been filed: James Raj (No 2)at [18], [21] and [22]. The second objection pertained to the academic nature of the questions posed to the Court of Appeal this argument itself encompassed two interlinked fronts: first, that no question of immediate access would have arisen given that the applicant had already been in remand for more than a week by the time the matter had been heard before the High Court (that is, on 15 November 2013), and there was therefore no prospect of him getting immediate access even at the time the application was initially filed; and second, that the question of what constituted a reasonable time was moot given thatthe applicant already had been given access to counsel. In relation to thefirst facet to the argument that the criminal reference was moot, the Court of Appeal opined that the argument was ill-conceived as the right was a continuing one and was still being denied at the time of the application; indeed, the Court of Appeal observed that to accept the Prosecution's position (that no immediate right could have been given) would entail the somewhat bizarre conclusion that once a right had been violated, it was to be regarded as spent and therefore incapable of being adjudicated by the courts, even if the violation was ongoing: James Raj (No 2) at [20], [23] and [24]. In relation to the second facet to the argument, the court indicated that it was not necessary to address the substance of the argument as the court was satisfied that the requirements to grant leave to refer the matter were not met: James Raj (No 2) at [25].

14.8 Turning to the application for leave proper, the Court of Appeal opined that it was trite that where the questions pertained to matters of settled law or could be readily resolved via the application of established principles, the criminal reference procedure was not appropriate. In this regard, in relation to the first question posed, the Court of Appeal was of the view that the position on the issue raised was clear and settled since Jasbir Singh (above, para 14.1). As it was clear as a matter of law that what amounted to a reasonable time had to incorporate allowance for police investigations and procedure, leave ought not to be granted: James Raj (No 2) at [33]. As for the second question, the Court of Appeal denied leave as it was of the view that what amounted to a reasonable time constituted a factual inquiry, and was not a question of law thatwas capable of being answered in the abstract: James Raj (No 2) at [39]. For the foregoing reasons, the Court of Appeal dismissed the criminal motion as it concluded that the questions posed did not satisfy the requirements...