James Raj s/o Arokiasamy v PP

• Jurisdiction: Singapore
• Judgment Date: 14 January 2014
• Date: 14 January 2014
• Docket Number: Criminal Motion No 70 of 2013
• Court: High Court (Singapore)

James Raj s/o Arokiasamy

Plaintiff

and

Public Prosecutor

Defendant

[2014] SGHC 10

Choo Han Teck J

Criminal Motion No 70 of 2013

High Court

Constitutional Law—Accused person—Rights—Right of arrested person to consult and be defended by legal practitioner of his choice—Whether arrested person entitled to consult counsel immediately upon request to do so—Whether arrested person entitled to consult counsel only upon lapse of ‘reasonable time’ after arrest—Whether ‘reasonable time’ had elapsed in applicant's case—Article 9 (3) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

Constitutional Law—Fundamental liberties—Right to life and personal liberty—Right of arrested person to consult and be defended by legal practitioner of his choice—Whether arrested person entitled to consult counsel immediately upon request to do so—Whether arrested person entitled to consult counsel only upon lapse of ‘reasonable time’ after arrest—Whether ‘reasonable time’ had elapsed in applicant's case—Article 9 (3) Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint)

This was an application for (a) a declaration that there is under Art 9 (3) of the Constitution of the Republic of Singapore (1985 Rev Ed, 1999 Reprint) an immediate right to counsel upon the request of a person remanded for investigations, and (b) an order that the applicant be granted immediate access to his counsel.

The applicant was arrested on 4 November 2013 and subsequently charged for computer misuse and drugs offences. He was remanded from the time of his arrest and had no access to his counsel. Moreover, two requests by the applicant's counsel for access to the applicant were rejected. The first of these requests was made to the police on 11 November 2013 and the second was made before a district judge the following day. In light of the rejections the applicant's counsel filed this application on behalf of the applicant on 13 November 2013.

The application was heard in the High Court on 15 November 2013. Judgment was reserved and, on the premise that an arrested person was entitled to access to counsel not immediately upon arrest or request but only a ‘reasonable time’ after arrest, parties were directed to file written submissions on what a ‘reasonable time’ was in the circumstances of the applicant's case. These submissions were to be filed by 29 November 2013 with replies to follow by 19 December 2013. As events turned out the applicant was granted access to counsel on 3 December 2013, rendering academic the application for an order that the applicant be granted immediate access to his counsel.

Held, dismissing the application:

(1) On the authority of the Court of Appeal decision of Jasbir Singh v PP[1994] 1 SLR (R) 782 (‘Jasbir Singh’) an arrested person's constitutional right to ‘consult and be defended by a legal practitioner of his choice’ under Art 9 (3) did not entitle him to consult counsel immediately after arrest. Rather, he was entitled to consult counsel only upon the lapse of a ‘reasonable time’ after arrest, the rationale for allowing such ‘reasonable time’ being to afford the police a degree of latitude in carrying out their investigations. Since the arrested person's entitlement to consult counsel depended entirely on investigative needs, the time at which he was entitled to consult counsel could not be contingent on the time at which he made a request to do so. Therefore it could not be correct as a general proposition that an arrested person was entitled to consult counsel immediately upon request: at [3] , [5] and [7] .

(2) As to the burden of proof, the police bore the onus of proving that permitting an arrested person access to counsel would impede police investigations or the administration of justice; and the burden would be to prove that it was necessary, and not merely desirable or convenient, to derogate from the arrested person's constitutional right to counsel: at [12] .

(3) In the instant case, even though the Prosecution managed to show that the investigation against the applicant was complex and would require a significant amount of time to complete, it failed to prove that permitting the applicant access to counsel on 29 November 2013, the date on which parties' submissions were filed, would have jeopardised that investigation. Accordingly it could not be held that permitting the applicant access to counsel on 29 November 2013 would have hindered investigations. Therefore, had the question not been academic, it would have been held that the applicant was entitled to access to his counsel by 29 November 2013: at [13] and [15] .

[Observation: It was doubtful whether the Court of Appeal in Jasbir Singh correctly apprehended what Wee Chong Jin CJ meant in Lee Mau Seng v Minister for Home Affairs [1971-1973] SLR (R) 135 when he said that an arrested person's constitutional right to consult a legal practitioner had to be granted to him ‘within a reasonable time after his arrest’. The Court of Appeal in Jasbir Singh thought that he meant that the police ought to be afforded a ‘reasonable time’ for investigations, but it was at least arguable that what Wee CJ truly meant was that an arrested person should be entitled to consult counsel immediately after arrest, and that the allowance of ‘reasonable time’ was for no more than necessary or unavoidable delay occasioned by practical or administrative concerns: at [5] and [6] .

There were precedents in which it was held that a period of up to 19 days was a ‘reasonable time’ for the arrested persons in those cases not to have had access to counsel, but those precedents were not necessarily helpful in the instant case because each case turned on its own facts: at [14] .

If there were concerns that permitting an arrested person access to counsel would enable him to consult his counsel interminably and so deprive the police of much time in which to question him, these concerns were better addressed by delineating the content of the right to counsel rather than by doing away with the right entirely so long as investigations were ongoing. After all, access to counsel was not unlimited and unrestricted access: at [14] .]

Jasbir Singh v PP [1994] 1 SLR (R) 782; [1994] 2 SLR 18 (refd)

Lee Mau Seng v Minister for Home Affairs [1971-1973] SLR (R) 135; [1969-1971] SLR 508 (refd)

Muhammad bin Kadar v PP [2011] 3 SLR 1205 (refd)

PP v Leong Siew Chor [2006] 3 SLR (R) 290; [2006] 3 SLR 290 (refd)

Computer Misuse and Cybersecurity Act (Cap 50 A, 2007 Rev Ed)

Constitution of the Republic of Singapore (1985 Rev Ed,1999 Reprint) Art 9 (3) (consd) ;Art 9 (4)

Criminal Procedure Code (Cap 68, 2012 Rev Ed) s 68

Misuse of Drugs Act (Cap 185, 2008 Rev Ed)

M Ravi (L F Violet Netto), Eugene Thuraisingam and Jerrie Tan Qiu Lin (Eugene Thuraisingam) for the applicant

GKannan, Tang Shangjun and Timotheus Koh (Attorney-General's...