THE FUTURE OF SINGAPORE'S CRIMINAL PROCESS

• Citation: (2013) 25 SAcLJ 847
• Author: Michael HOR LLB (National University of Singapore), BCL (Oxford), LLM (Chicago); Advocate and Solicitor (Singapore); Professor, Faculty of Law, National University of Singapore.
• Published date: 01 December 2013
• Date: 01 December 2013

This discussion traces the evolution of Singapore's criminal process from one which was decidedly pro-prosecution to one where we are beginning to see glimpses of a reformist imperative. It uses what is perhaps the single most important decision on pre-trial procedure, Muhammad bin Kadar v Public Prosecutor[2011] 3 SLR 1205, as a lens to observe how the Judiciary seems to be leading the way in reshaping criminal procedure to be more compliant with modern conceptions of process fairness, in particular in the context of two ‘hot button” areas — police confessions and disclosure of prosecutorial material. It also takes note of what appears to be institutional resistance from the prosecution and perhaps law enforcement agencies, and concludes with the hope that all the institutional stakeholders of the criminal law in Singapore — the judges, the prosecutors, the law enforcers and the criminal bar — will in time begin to realise that the sustainable strengthening of process rights is a mutual and co-operative endeavour which will result in a criminal justice system which we can all be proud of.

I. Civilising the criminal process

1 Freshmen observers of the Singapore criminal process are often struck with the obvious contradiction between what they can see with their own eyes to be an ultra-modern metropolis stuffed to the gills with state-of-the-art technology and infrastructure,1 and what they have come to learn to be its antique criminal process, essentially unchanged since the British colonial government established it well over a century ago.2 Fuelled by pride and armed with precedent, it might be said that

common lawyers the world over are inclined towards conservatism, and, if absolutely necessary, incremental — and some would say, glacial — change. Yet even as the bastions and bulwarks of the common law elsewhere experienced a spring of constitutionalism and human rights transforming what societies there consider to be acceptable and desirable in the criminal process,3 Singapore's system, like some reliable old deity, remained the same. Then in the mid-2000s things began to change. Legislative amendments started to enjoy hitherto unheard of consultation with non-governmental stakeholders;4 judicial decisions no longer predictably producing prosecutorially-desired outcomes.5 Some attribute it to the personalities of changed personnel in government, others to a general democratisation or liberalisation of the socio-political climate in Singapore.6 The pundits began to ask if all this was just an aberration, or more cynically, a mere public-relations exercise designed to give only an appearance of change, or if it might eventually revolutionise the way we think about how the criminal process ought to be constituted.7 In an effort to go some way towards answering this question, two developments are selected and studied here, remarkably arising from just one decision, which are felt by some to provide evidence of an impending spring.

II. Judicial awakening

2 In the realm of criminal procedure, few judicial decisions have had the kind of impact enjoyed by the Court of Appeal decision in Muhammad bin Kadar v Public Prosecutor8 (‘Kadar”). The story of the Kadar brothers and their harrowing journey through the criminal justice system provides the dramatic backdrop. An elderly woman was brutally stabbed to death in her apartment as her husband, previously paralysed by a stroke, looked on but could do nothing. On the same day Ismil Kadar was arrested for handphone theft. Improbably, it appears that the police noticed that he lived in an apartment on the floor below the scene of the killing, somehow managed to put two and two together, and suspected that Ismil was involved.9 Sure enough, the police were able to extract several statements in quick succession, apparently from Ismil, confessing to the killing — he alone had killed her in an attempt to rob. Ismil was a primary school-educated, long-term substance abuser who had successively sniffed glue and consumed opium, subutex and dormicum since the age of 15. Needless to say, he was in need of money. An open and shut case, so it appeared — here was motive, opportunity and a series of iron-clad confessions. Kudos to all for a nifty piece of investigatory work.

3 Then a seemingly inconsequential purse was recovered near the foot of the fateful apartment block. Forensic analysis turned up a surprising result. Two sets of DNA were detected, that of the murder victim, and that of one other person who was, surprise, surprise, not Ismil, but someone closely related to him — Ismil's brother, Muhammad. Predictably, the arrest and interrogation of Muhammad produced another set of confessions — now it appeared, from this revised version, that Muhammad was there and party to the robbery, but Ismil was still the one who stabbed the victim to death. A fresh round of interrogation of Ismil produced, voila, a second set of statements from him which changed the initial story to one which corroborated Muhammad's account. Not a problem, so the police and prosecutors must have thought. A minor hiccup, but now everything was open and shut again — Ismil

was to be charged with murder and Muhammad for being jointly responsible for the killing via the doctrine of common intention, now more fashionably called ‘joint criminal enterprise”.10 Armed with Muhammad's statements, and Ismil's confessions, second edition, the trial proceeded.11 It took a long but predictable course. The accused persons challenged the admissibility of the statements on the ground of threats, inducement and oppressive treatment. A parade of prosecution witnesses appeared to say that all was above board. The statements were ruled admissible and the Defence called.

4 Then Muhammad took the stand and electrified the court by testifying that he alone had robbed and killed the victim, and that Ismil had nothing at all to do with the killing or the robbery. Ismil testified to the same effect with respect to his involvement. So now there was a third narrative. Put in a rather unenviable position, the trial judge could not say with sufficient confidence who actually killed the victim, but he did find, as the law then allowed him to, that it was either Ismil or Muhammad who had killed the victim, and the circumstances were such that the other brother, whoever he was, was complicit in the robbery knowing that the victim might be killed, and was therefore equally liable for murder by the doctrine of common intention (as it was then understood).12 So one brother was liable for murder simpliciter, and the other by the operation of ‘common intention”.

5 There the matter might have rested but for the intervening and remarkable decision of Daniel Vijay s/o Katherasan v Public Prosecutor13 where the Court of Appeal held that the legal fraternity had been wrong about ‘common intention” for decades — it was never intended to impose liability for murder because of participation in a joint criminal enterprise. It did matter who killed the victim, after all. So it was that when the Kadar brothers appealed to the Court of Appeal, the Prosecution had to make up its mind as to who it was who killed the victim. They settled for Muhammad (following Muhammad's testimony in court), but still sought Ismil's conviction for robbery with hurt (following his confession, second edition, that he was at least present at the scene of the crime). Muhammad's appeal failed — he had testified that he killed the victim, and his attempt to argue diminished responsibility was unsuccessful. And there we shall leave Muhammad.

6 For Ismil, it became crucial to decide if he was there at all — a conviction for robbery with hurt is not a capital offence, but is no walk in the park either.14 Enter the husband of the victim, whose condition had deteriorated such that he could not testify, and who had died in the course of the trial. It was revealed by the investigation officer for the first time, some 18 months into the trial, that three statements were taken from him in which he had stated quite categorically that there was only one person who had entered the apartment on the day in question. These statements were not disclosed in the preliminary inquiry as the Prosecution had not intended to use them. The Court of Appeal obviously found these statements to have been very material, for if there had been only one person, and if Muhammad was there, then Ismil could not have been there as well. Thus contradicted by independent and apparently reliable evidence, Ismil's confession that he was there and party to the robbery could not stand.15 He was acquitted.

7 These events made it necessary for the court to address two particularly tender aspects of the fairness of Singapore's pre-trial criminal process — the need to ensure integrity in the extraction and use of custodial confessions, and the need to give the Defence access to potentially exonerating material in the possession of the Prosecution. These issues will be dealt with in turn.

III. The law and the police — Guarding the guardians

8 The story of custodial confessions in the Singapore criminal process has been one long, depressing tale of what seems to be a system that has become so hooked on the extraction and use thereof that almost everything else has to be sacrificed to feed the addiction. Most Singaporeans will not know or remember that when the original Criminal Procedure Code and Evidence Ordinance came into force in the later half of the 19th century, officially extracted confessions were so frowned upon that they were generally inadmissible.16 To be good evidence, they had to be made before a Magistrate.

9 Then in 1960, both the rule against custodial statements, and against statements made after the commencement of police investigations were essentially abrogated. Custodial confessions could now be used, but subject to compliance with a set of procedures prescribed in ‘Schedule E’...