Re Parti Liyani

• Jurisdiction: Singapore
• Judge: Sundaresh Menon CJ
• Judgment Date: 23 October 2020
• Neutral Citation: [2020] SGHC 227
• Year: 2020
• Docket Number: Originating Summons No 559 of 2020
• Published date: 27 October 2020
• Hearing Date: 01 October 2020
• Subject Matter: Application for leave under s 82A(5) of the Legal Profession Act (Cap 161, 2009 Rev Ed),Legal Profession,Disciplinary proceedings
• Plaintiff Counsel: Anil Narain Balchandani (Red Lion Circle)
• Court: High Court (Singapore)
• Citation: [2020] SGHC 227
• Date: 23 October 2020

Sundaresh Menon CJ: Introduction

In HC/OS 559/2020 (“OS 559”), the applicant, Ms Parti Liyani, seeks leave to commence disciplinary proceedings against two legal service officers pursuant to s 82A(5) of the Legal Profession Act (Cap 161, 2009 Rev Ed) (“LPA”). The two officers are Deputy Public Prosecutors (“DPPs”), namely, DPP Tan Yanying (“Ms Tan”) and DPP Tan Wee Hao. These DPPs had conduct of the applicant’s trial before the District Court, at which she was convicted of four theft-related charges including one charge of theft by servant of property in possession of her employer, Mr Liew Mun Leong (“Mr Liew”) under s 381 of the Penal Code (Cap 224, 2008 Rev Ed) (“the s 381 charge”): see Public Prosecutor v Parti Liyani [2019] SGDC 57 (“Parti Liyani (DC)”).

The s 381 charge alleged that the applicant had stolen, amongst other things, a Pioneer DVD player (“the Device”). On appeal to the High Court, Chan Seng Onn J (“the Judge”) found the applicant’s convictions unsafe and acquitted her of all four charges: see Parti Liyani v Public Prosecutor [2020] SGHC 187 (“Parti Liyani (HC)”).

The present complaint arises out of the manner in which the DPPs led evidence and made submissions on the functionality of the Device. In particular, the applicant contends that the DPPs had, in their conduct of the trial, concealed material facts and thereby created the false impression that the Device was fully functional. She contends that but for the false impression that had been conveyed, she would not have agreed, under cross-examination, that the Device was operational. On this basis, the DPPs suggested that she had lied about the circumstances in which the Device came to be in her possession. However, if she had been apprised of all the facts, there would have been no basis for the DPPs to suggest that she had been lying. The applicant thus seeks leave for an investigation to be made into her complaint.

Background facts

The facts surrounding the applicant’s conviction and subsequent acquittal have been comprehensively set out in the Judge’s decision in Parti Liyani (HC). I therefore mention only the salient facts relevant to the present application. The applicant was a foreign worker, employed as a domestic helper by Mr Liew. In October 2016, Mr Liew filed a police report against the applicant, alleging that she had stolen numerous items from members of the Liew household. The applicant’s complaint in OS 559 is confined to the DPPs’ conduct in relation to the Device, which was one of the items that formed the subject of the s 381 charge. In brief, the applicant’s defence at trial and on appeal in relation to the Device was that it was faulty and that Mr Liew’s wife, Mdm Ng Lai Peng (“Mdm Ng”), had told her this and indicated that she wished to dispose of it (see Parti Liyani (DC) at [22]; Parti Liyani (HC) at [80]). The applicant maintained that it was in these circumstances that she came into possession of the Device.

At trial, the functionality of the Device became a live issue. Both parties sought to address and eventually took divergent positions on this before the District Judge (“the DJ”). On 16 August 2018, under cross-examination, Mr Liew testified that he did not think the Device was in working condition because it had not been used in a long time. While he admitted the possibility that the applicant might have asked Mdm Ng whether she could take the Device and get it fixed for her use in Indonesia, he declined to speculate whether such a conversation had taken place. Subsequently, on 17 August 2018 and 7 September 2018, in the course of her examination-in-chief and cross-examination respectively, Mdm Ng testified that the Device was in fact functional and further that the applicant had never sought permission to take it.

As against this, on 25 September 2018, in the course of her examination-in-chief, the applicant testified that Mdm Ng had told her that the Device was damaged and that she intended to throw it away. While there were slight inconsistencies in the applicant’s evidence as to whether Mdm Ng had explicitly allowed her to take the Device or if she had simply taken it after being told it was to be discarded because it was not working (see Parti Liyani (HC) at [95]), her position even prior to the trial (as disclosed in the Case for the Defence and her statements), had been that she had believed the Device was spoilt.

On 26 September 2018, during the cross-examination of the applicant, the DPPs conducted a demonstration of the Device. Some images were displayed on a monitor when the Device was connected to it via a HDMI cable. The DPPs did not inform the court, the applicant or her counsel, Mr Anil Balchandani (“Mr Balchandani”), that the Device had been operating in the HDD mode (see [10] below) or that they had difficulties playing a “Capitaland” DVD, which had been found in the Device, earlier that morning (see [15] below). However, Ms Tan, when asked by the DJ, said that she had not inserted anything into the Device prior to her demonstration (see [32] below). Under cross-examination by Ms Tan, the applicant agreed that the Device had been working during the demonstration. Since the applicant herself had not claimed at any time to have tested the Device, the point of this was primarily to demonstrate that if the Device was working, it was implausible that Mdm Ng would have said that it was not, or for that matter, that she would have wanted to discard the Device. This would contradict the applicant’s contention and undermine her case. Ms Tan then put to the applicant that she had been lying when she claimed that Mdm Ng had told her the Device was spoilt.

On 27 September 2018, during the lunch recess, Mr Balchandani sought and was afforded the opportunity to inspect the Device with the assistance of the DPPs. Thereafter, he informed the court that the Device was not functional despite the DPPs’ demonstration the previous day. The DJ invited him to take the issue up in re-examination since the DPPs were still in the midst of their cross-examination of the applicant at that point.

On 20 November 2018, during the re-examination of the applicant, Mr Balchandani highlighted to the DJ that the DPPs had in their demonstration used certain equipment which was not part of the courtroom (presumably he was referring to the HDMI cable which the DPPs had brought and used) and that therefore he was at a disadvantage. From this, he argued that, amongst other things, the DJ ought to consider the fact that the DPPs had not shown how the Liew household had used the Device, specifically how it was connected to any television, for instance. The implication appeared to have been that the specific setup might have a bearing on the functionality of the Device and the veracity of the applicant’s defence. In response, Ms Tan stated that Mr Balchandani misunderstood the purpose of their demonstration which was “in relation to the [applicant’s] evidence on the condition of [the Device]” and notably, that their demonstration “proved that [the Device] was indeed working” [emphasis added].

On 4 December 2018, Mr Balchandani conducted a live demonstration of the Device during the continued re-examination of the applicant. Ms Tan objected to the relevance of his demonstration, contending that Mr Balchandani would, in doing so, be giving evidence from the Bar. She further submitted that there had been “no confusion” as to whether the Device could work since the applicant had “testified explicitly and expressly” on this issue, and the DJ had already seen the demonstration on 26 September 2018. Notwithstanding these objections, Mr Balchandani was allowed to proceed. It emerged that the Device had two modes in which it could function: the first was the DVD mode, in which DVDs could be played; the second was the HDD mode, in which images could be recorded on the Device’s hard drive and then played back. In addition to the “Capitaland” DVD which had been found in the Device, Mr Balchandani also brought along other DVDs. When Mr Balchandani attempted to play the “Capitaland” DVD and another DVD he had brought on the Device using the DVD mode, various error messages were displayed. However, when the Device was switched to HDD mode, the footage that had been displayed during the DPPs’ demonstration appeared on the monitor. On this basis, Mr Balchandani observed that the DPPs had not informed the court that they had operated the Device using the HDD function during their demonstration. He stated that while the DPPs had conducted their demonstration in the manner they did to show that the Device was working, he had shown that to be untrue.

While the applicant did not specifically refer to this, for completeness it should be noted that in the closing submissions, the DPPs argued that the fact the Device had failed to play a DVD which Mr Balchandani had brought and inserted was more likely to have been because of a problem with Mr Balchandani’s DVD rather than the functionality of the Device. Their submissions also did not mention the fact that their own demonstration had utilised the HDD mode of the Device; nor did they address the difficulties that Mr Balchandani had encountered in attempting to play back the “Capitaland” DVD. The DPPs further submitted that the applicant’s case that the Device had been discarded by Mdm Ng because it was spoilt had been “rubbished by the demonstrations in court which clearly showed that the said items [including the Device] were working”.

In the light of what transpired, the applicant alleged in her closing submissions before the DJ that the DPPs’ actions showed “a larger scheme … to mislead the court”. This was because the Device could not have been operating in the HDD mode without it being deliberately engaged and the DPPs had “provided no explanation of what they were doing” and “how they got the [Device] to display the moving image” during the...