Public Prosecutor v Knight Glenn Jeyasingam

• Jurisdiction: Singapore
• Judge: Yong Pung How CJ
• Judgment Date: 15 April 1999
• Neutral Citation: [1999] SGHC 91
• Docket Number: Special Case No 1 of 1998,Magistrate’s Appeal No 169 of 1998; Criminal Revision No 16 of 1998
• Date: 15 April 1999
• Year: 1999
• Published date: 19 September 2003
• Plaintiff Counsel: Tan Siong Thye and Kow Keng Siong (Deputy Public Prosecutor)
• Citation: [1999] SGHC 91
• Defendant Counsel: K Muralidharan Pillai and Andrew Chan Chee Yin (Allen & Gledhill)
• Court: High Court (Singapore)
• Subject Matter: Whether such statements admissible as substative evidence of guilt,Scope of privilege,Criminal Procedure and Sentencing,Evidence,Whether such statements after partys' evidential burden,Whether court's sentencing policy has same rationale as plea bargaining,Statements made in course of plea negotiations scope of such statement,Whether such statements privileged,Whether such statements made without prejudice to rights of parties,Objectives and policy,Interpretation of Evidence Act as facilitative statute,Purposive approach to constructing policies consistent with existing provisions

Judgment:

1.YONG PUNG HOW CJ

Background to the case stated

In DAC 7675/98, DAC 7676/98 and DAC 15657/98, the respondent claimed trial to two amended charges under s 408 of the Penal Code (Cap 224) and one amended charge under s 403 of the Penal Code.

2.In July 1997, the respondent was investigated by the Corrupt Practices Investigation Bureau (`CPIB`) as a consequence of information received relating to the said offences. After the CPIB investigations had commenced, the respondent wrote a letter dated 25 August 1997 to his Member of Parliament, Dr S Vasoo. The respondent requested Dr S Vasoo to forward certain written representations contained in the letter to the Attorney General`s Chambers (`AGC`). By the representations, the respondent sought the withdrawal of any potential criminal charges that might be brought against him. Dr S Vasoo forwarded the representations to the AGC on 27 August 1997.

3.In the course of cross-examining the respondent, the Deputy Public Prosecutor (`DPP`) sought to refer the respondent to the representations for the purpose of impeaching his credit under s 157(c) of the Evidence Act (Cap 97). Counsel for the respondent objected to this reference on the ground that the representations were protected from disclosure. He submitted that it was an accepted fact of practice that representations made were communicated `without prejudice` in the course of negotiations with the AGC. This protection from disclosure was afforded by a broad principle of public policy to promote consensual case disposal.

4.The prosecution`s case was that all representations to the AGC could become admissible. In response to the District Judge`s query, the prosecution confirmed that there was no known precedent for the use of representations in the manner sought. The prosecution submitted that it would be in the public interest for the court to avail itself of all available evidence.

5.The District Judge held that the representations were protected from disclosure as they had been communicated `without prejudice` in the course of negotiations with the AGC. He excluded the representations from being used against the respondent and ordered that reference to the letter would not be permitted.

6.On 2 September 1998, the respondent was convicted of the amended first and second charges and acquitted of the amended third charge.

7. The question of law

On 9 September 1998, the Public Prosecutor applied under s 263(1) of the Criminal Procedure Code (Cap 68) (`CPC`) for the following question of law to be reserved and stated as a special case by the District Judge for the consideration of the High Court:

Whether a voluntary statement containing relevant evidence made by any person and communicated by him or on his behalf to the Public Prosecutor, in confidence or otherwise, in connection with any investigation into an offence or any criminal proceedings, is admissible against him at any trial for any of the following purposes:

(a) to cross-examine him on his testimony;

(b) to impeach his credit; and

(c) as substantive evidence.

8.In a special case dated 14 October 1998, the District Judge submitted that the question should be dealt with specifically rather than generically to ensure that it was one which arose in the proceedings. Accordingly, he reserved the following re-stated question of law for the consideration of this court:

Whether representations made by any person and communicated by him or on his behalf to the Public Prosecutor, in connection with any investigation into an offence or any criminal proceedings, may be used against him at any trial for the following purposes:

(a) to cross-examine him on his testimony;

(b) to impeach his credit; and

(c) as substantive evidence

9.The District Judge had reserved the question of law in the shape of a special case in the form required by s 263(2) of the CPC. I found that he had not acted beyond his purview in restating the question. It was clear to me that a special case was not required to determine whether a voluntary statement containing relevant evidence was admissible against its maker. The main question that arose was whether that specific genre of statements, albeit voluntary and relevant, made as representations to the AGC could be used against its maker. I proceeded to consider the question as restated by the District Judge. The case stated was heard before me on 3 December 1998.

10. Additional evidence

Before moving on, the prosecution applied by way of CM 26/98 to include the following documents in the record of the case stated: (1) the respondent`s representations to Dr S Vasoo describing, among other things, the investigations and its genesis; (2) the respondent`s explanatory cover note to Dr S Vasoo; and, (3) Dr S Vasoo`s letter to the AGC, requesting the AGC to review the respondent`s appeal as stated in the enclosed representations. I allowed the application in the interests of having all the available facts before me. However, I was mindful that this court, in determining a question of law arising on a special case, concerns itself with the facts as set out by the District Judge in his statement of the special case. The additional information allowed could not be used to overturn any finding of fact made in the court below, only to inform my determination of the question of law in the case stated. The determination of this case stated falls under the High Court`s appellate criminal jurisdiction, as defined in s 19 of the Supreme Court of Judicature Act (Cap 322). This is to be distinguished from the High Court`s exercise of its revisionary powers in an application under s 268 of the CPC. It was with this caution that I proceeded.

11. The decision below

In his written grounds of decision, delivered on 30 September 1998, the District Judge explained that he did not rule that the representations were `inadmissible`. In fact, he had accepted that the representations may have been prima facie admissible and that the test of relevancy remained applicable. However, he emphasized that the question of admissibility should not be confused with the judicial discretion to exclude evidence.

12.The District Judge observed that this application raised important and novel questions which had apparently not been tested in the local courts. The District Judge noted that Singapore lacked a legislative framework that dealt specifically with the admissibility of representations or statements made in the course of plea discussions, unlike, for example, the United States Federal Rules of Evidence (`FRE`). Nevertheless, he observed that under r 410(4) of the FRE, such representations were considered `without prejudice` and inadmissible subject to certain exceptions.

13.Next, the District Judge turned to consider jurisdictions without any legislative framework governing the admissibility or exclusion of such statements. He found some support for the applicability of the `without prejudice` rule in the Privy Council review of the Canadian decision in Re Ramsay [1870] LR 3 PC 427. In addition, he noted that the Supreme Court of Western Australia went even further in Director of Public Prosecutions v Walsh & Ors [1990] WAR 25 and expressly recognised that communications to the prosecutor were made `without prejudice`.

14.The District Judge opined that these same principles should apply to representations made to the AGC since they are firmly entrenched as our local equivalent of `plea bargaining`. He observed that our system of criminal justice had so far not permitted representations to be used against the accused in the fashion sought by the prosecution. He took judicial notice of the prevalent understanding that plea negotiations were conducted `without prejudice` and opined that the confidential nature of such negotiations promoted an invaluable general policy of encouraging consensual case disposal without trial. Such efforts at settlement could not be pursued in earnest if their content could later be used as substantive evidence against an accused.

15. Arguments on the case stated

The District Judge`s detailed examination of the status of plea discussions under the FRE framework was robustly contested by the prosecution. The prosecution asserted that there was no empirical evidence that plea bargaining held a similar role in the criminal justice system of Singapore. He relied on statistics showing that a mere 2.3% of persons charged in 1997 made representations (both plea and non-plea bargaining). The prosecution submitted that this was an insignificant proportion compared to the advanced plea-bargaining practices in the United States.

16.The prosecution contended that our criminal justice system was, in contrast to the United States legal regime, geared towards finding the truth in criminal trials. He submitted that in the past 28 years, Parliament has been enacting legislation to render admissible in evidence all voluntary statements of accused persons or witnesses if they are relevant to any issue of fact in a criminal trial. In particular, he pointed to several examples in our criminal law pertaining to illegally obtained evidence. The court was reminded once again that it would be in the public interest to avail itself of all available evidence.

17.Taking the example of confessions, the prosecution submitted that such statements were unquestionably prejudicial to the accused yet they are rarely excluded in Singapore courts unless the voluntariness of the statement had been disproved. In any case, he contended that the court below failed to apply the correct impeachment procedure first expounded in Muthusamy v PP [1948] MLJ 57 and approved in Kwang Boon Keong Peter v PP [1998] 2 SLR 592 . He argued that the District Judge should have examined the document to make a finding on whether there was any material discrepancy to justify cross-examination for impeachment.

18.The prosecution criticized the use of a judicial discretion to...